Opinion
Case No. 8:05CR155.
November 4, 2005
TENTATIVE FINDINGS
The Court has received the Presentence Investigation Report ("PSR") and the Defendant`s objections thereto (Filing No. 31). See Order on Sentencing Schedule, ¶ 6. The Court advises the parties that these Tentative Findings are issued with the understanding that, pursuant to United States v. Booker, 2005 WL 50108 (U.S. Jan. 12, 2005), the sentencing guidelines are advisory.
The Defendant objects to ¶¶ 13 and 14, arguing that in view of the facts surrounding the 1992 Chevrolet S10 Blazer the bank has an obligation to mitigate its loss. The objection relates to the amount of restitution. The government bears the burden of proof by a preponderance of the evidence.
IT IS ORDERED:
1. The Defendant's Objections to the Presentence Investigation Report (Filing No. 31) will be heard at sentencing. If the parties need more than 30 minutes for sentencing, they shall immediately reschedule the hearing with Edward Champion, 661-7377;
2. Otherwise the Court's tentative findings are that the Presentence Investigation Report is correct in all respects;
3. If any party wishes to challenge these tentative findings, the party shall immediately file in the court file and serve upon opposing counsel and the Court a motion challenging these tentative findings, supported by (a) such evidentiary materials as are required (giving due regard to the requirements of the local rules of practice respecting the submission of evidentiary materials), (b) a brief as to the law, and (c) if an evidentiary hearing is requested, a statement describing why an evidentiary hearing is necessary and an estimated length of time for the hearing;
4. Absent submission of the information required by paragraph 3 of this Order, my tentative findings may become final; and
5. Unless otherwise ordered, any motion challenging these tentative findings shall be resolved at sentencing.