Opinion
3:19-cr-165-MJN-1
07-19-2022
UNITED STATES OF AMERICA, Plaintiff, v. ANTHONY FRANKLIN, Defendant.
ORDER AND ENTRY: (1) SUSTAINING DEFENDANT ANTHONY FRANKLIN'S OBJECTION TO THE PSR; AND (2) ORDERING THE PROBATION DEPARTMENT TO SUBMIT AN ADDENDUM TO THE PSR WITH A NEW SENTENCING GUIDELINES CALCULATION AND SENTENCING RANGE
HON. MICHAEL J. NEWMAN UNITED STATES DISTRICT JUDGE
This criminal case is before the Court following an evidentiary hearing held on Defendant Anthony Franklin's (“Franklin”) objection to the Probation Department's calculation of his total criminal offense level under the United States Sentencing Guidelines (“U.S.S.G.”) in the Presentence Investigation Report (“PSR”). Specifically, Franklin contends that U.S.S.G. § 2D1.1(b)(12), which increases a defendant's offense level by two for maintaining a premises for the purpose of manufacturing or distributing a controlled substance, does not apply in this case. See Doc. No. 104 at PageID 596. At the evidentiary hearing, the Government conceded that the § 2D1.1(b)(12) enhancement is inapplicable.
The Government bears the burden of proving by a preponderance of the evidence that a criminal defendant “maintained” the premises for § 2D1.1(b)(12) to apply. See United States v. Hubbard, 843 Fed.Appx. 667, 674 (6th Cir. 2019) (citing United States v. Wright, 747 F.3d 399, 412 (6th Cir. 2014)); United States v. Earnest, __ F.Supp.3d __, 2022 WL 609592, at *3 (S.D. Ohio Mar. 1, 2022). After taking this matter into consideration and independently considering the matter-as well as the arguments from both parties-the Court agrees with counsel from both sides and finds that the Government has not met its burden. Accordingly, Defendant's objection to the PSR is SUSTAINED. Thus, the Court finds that Defendant's current guidelines calculation was in error. The Court ORDERS the Probation Department to submit an addendum to the PSR with a new guidelines calculation and sentencing recommendation within 14 days of this order.
IT IS SO ORDERED.