Opinion
4:23-CR-3075
02-20-2024
UNITED STATES OF AMERICA, Plaintiff, v. ALPHONSO JOHNSON, JR., Defendant.
TENTATIVE FINDINGS
JOHN M. GERRARD, SENIOR UNITED STATES DISTRICT JUDGE
The Court has received the revised presentence investigation report in this case. The defendant has objected to the presentence report (filing 64) and filed a motion for variance (filing 65).
IT IS ORDERED:
1. The Court will consult and follow the Federal Sentencing Guidelines to the extent permitted and required by United States v. Booker, 543 U.S. 220 (2005) and subsequent cases. In this regard, the Court gives notice that, unless otherwise ordered, it will:
(a) give the advisory Guidelines respectful consideration within the context of each individual case and will filter the Guidelines' advice through the 18 U.S.C. § 3553(a) factors, but will not afford the Guidelines any particular or "substantial" weight;
(b) resolve all factual disputes relevant to sentencing by the greater weight of the evidence and without the aid of a jury;
(c) impose upon the United States the burden of proof on all Guidelines enhancements;
(d) impose upon the defendant the burden of proof on all Guidelines mitigators;
(e) depart from the advisory Guidelines, if appropriate, using pre-Booker departure theory; and
(f) in cases where a departure using pre-Booker departure theory is not warranted, deviate or vary from the Guidelines when there is a principled reason justifying a sentence different than that called for by application of the advisory Guidelines, again without affording the Guidelines any particular or "substantial" weight.
2. The defendant has objected to the presentence report's assessment of two criminal history points that, the defendant says, he is awaiting documentation of. Filing 64. But it's the government's burden, when the defendant objects, to initially prove the fact of conviction. See United States v. Dodson, 817 F.3d 607, 610 (8th Cir. 2016). And the defendant has objected. Accordingly, the Court believes it's the government's burden to prove the applicability of the prior conviction, not the defendant's burden to disprove it. With that understanding, the Court will resolve this issue at sentencing.
The defendant has also moved for a downward variance based on his personal circumstances, the circumstances of the offense, and the Court's decision in United States v. Havel, No. 4:21-CR-3075, 2023 WL 1930686 (D. Neb. Feb. 10, 2023). Filing 65. The Court will resolve that motion at sentencing.
3. Except to the extent, if any, that the Court has sustained an objection, granted a motion, or reserved an issue for later resolution in the preceding paragraph, the parties are notified that the Court's tentative findings are that the presentence report is correct in all respects.
4. If any party wishes to challenge these tentative findings, that party shall, as soon as possible (but in any event no later than three (3) business days before sentencing) file with the Court and serve upon opposing counsel an objection challenging these tentative findings, supported by a brief as to the law and such evidentiary materials as are required, giving due regard to the local rules of practice governing the submission of evidentiary materials. If an evidentiary hearing is requested, such filings should include a statement describing why a hearing is necessary and how long such a hearing would take.
5. Absent timely submission of the information required by the preceding paragraph, the Court's tentative findings may become final and the presentence report may be relied upon by the Court without more.
6. Unless otherwise ordered, any objection challenging these tentative findings shall be resolved at sentencing.