Tentative Findings — United States v. McNeil (Dkt. 37, D. Neb.)

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Tentative findings of Senior U.S. District Judge John M. Gerrard in United States v. Michael McNeil, No. 4:22-CR-3156, in the U.S. District Court for the District of Nebraska, dated and filed June 20, 2023 as Doc # 37. The court states that it has received the presentence investigation report and that there are no objections or motions for departure or variance. It gives notice that it will treat the Federal Sentencing Guidelines as advisory under United States v. Booker, 543 U.S. 220 (2005), filtering them through the 18 U.S.C. § 3553(a) factors, and will place the burden of proof for enhancements on the United States. Any objection to the tentative findings will be resolved at sentencing.

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4:22-cr-03156-JMG-CRZ Doc # 37 Filed: 06/20/23 Page 1 of 3 - Page ID # 115




                   IN THE UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF NEBRASKA

UNITED STATES OF AMERICA,

                      Plaintiff,                           4:22-CR-3156

vs.
                                                     TENTATIVE FINDINGS
MICHAEL MCNEIL,

                      Defendant.

        The Court has received the presentence investigation report in this case.
There are no objections or motions for departure or variance.


        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;

     4:22-cr-03156-JMG-CRZ Doc # 37 Filed: 06/20/23 Page 2 of 3 - Page ID # 116




        (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.      There are no objections or motions that require resolution 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



                                        -2-

     4:22-cr-03156-JMG-CRZ Doc # 37 Filed: 06/20/23 Page 3 of 3 - Page ID # 117




        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.

        Dated this 20th day of June, 2023.


                                              BY THE COURT:



                                              John M. Gerrard
                                              Senior United States District Judge




                                        -3-

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