IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

UNITED STATES OF AMERICA,

Plaintiff,

vs.

ROBERT VINCENT HARRIS,

Defendant.

4:23-CR-3057

TENTATIVE FINDINGS

The Court has received the revised presentence investigation report and

addendum in this case. The defendant's sentencing statement (filing 78)

objects to the presentence report and requests a 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;

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(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 preBooker 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 failure to provide

a two-level reduction to the offense level for acceptance of responsibility

pursuant to U.S.S.G. § 3E1.1(a). Filing 78 at 1. The Court finds no merit

to that objection.

Section 3E1.1(a) provides for a two-level reduction if the defendant

clearly demonstrates acceptance of responsibility for his offense. United

States v. Cooper, 998 F.3d 806, 810 (8th Cir. 2021). The reduction's

purpose is to distinguish a sincerely remorseful defendant from a

defendant not manifesting penitence. Id.

A determination that a defendant has accepted responsibility will be

based primarily upon pre-trial statements and conduct. United States v.

Petruk, 836 F.3d 974, 977 (8th Cir. 2016) (citing § 3E1.1, cmt. n.2). It is

a rare situation where a defendant who contests his guilt at trial can

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meet his burden to clearly demonstrate acceptance of responsibility. Id.

But it's not impossible: "This may occur, for example, where a defendant

goes to trial to assert and preserve issues that do not relate to factual

guilt (e.g., to make a . . . challenge to the applicability of a statute to his

conduct)." Id. at 977-78 (quoting § 3E1.1 cmt. n.2).

Under those standards, the defendant might have accepted

responsibility as to Count I. He admitted all the facts relating to Count

I, and only contested the applicability of the statute to his circumstances

based on a legal argument about the meaning of "distribute." Effectively,

the parties stipulated to the sequence of events supporting Count I, and

briefed a question of statutory interpretation. This case may well be

distinguishable from other cases in which the defendant claimed to only

be challenging the "applicability of a statute to his conduct," but was in

fact contesting the sufficiency of the evidence to prove factual guilt. See,

e.g., United States v. Wallenfang, 568 F.3d 649, 661 (8th Cir. 2009);

United States v. Spurlock, 495 F.3d 1011, 1014-16 (8th Cir. 2007); United

States v. Webber, 39 F. App'x 469, 471 (8th Cir. 2002).

But that's as to Count I, and Count II is different. The defendant clearly

disputed his factual guilt as to Count II, see filing 69 at 4-6, and while

Count I is driving the guidelines calculation in this case, the counts are

grouped for sentencing pursuant to U.S.S.G. §§ 3D1.1(a)(1) and 3D1.2.

The defendant hasn't objected to grouping the counts, nor does the Court

see any basis for an objection to grouping the counts—the guideline that

sets the base offense level here, U.S.S.G. § 2D1.1, is expressly one of the

guidelines to be grouped. See § 3D1.2.

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And although the Eighth Circuit has acknowledged that the guidelines

don't mandate an "all-or-nothing" approach to acceptance of

responsibility, the Court of Appeals has plainly held that for the offense 

level to be reduced for acceptance of responsibility, the guidelines do

require the defendant to accept responsibility as to all the counts in the

sentencing group. United States v. Wattree, 431 F.3d 618, 622-23 (8th

Cir. 2005); see also Garcia v. United States, 679 F.3d 1013, 1015 (8th Cir.

2012). Where a defendant pleads guilty to all counts that are grouped for

sentencing, contesting guilt only on non-grouped offenses, the guidelines

do permit a two-level acceptance-of-responsibility reduction, based on

the totality of the circumstances. Wattree, 431 F.3d at 622-23. But even

pleading guilty to one grouped offense wouldn't allow for acceptance of

responsibility if the defendant contests factual guilt as to another

grouped offense. See Garcia, 679 F.3d at 1015.

Here, the defendant didn't even plead guilty to anything. Even if he could

be said to have accepted responsibility for Count I, the presence of a

grouped offense for which he contested factual guilt precludes a

reduction for acceptance of responsibility as to the group. See Wattree, 

431 F.3d at 622-23.

That, of course, doesn't prevent the Court from considering the unusual

circumstances of this case as relevant to departure or variance, along

with the defendant's other circumstances and the circumstances of the

offense. The Court will resolve questions of departure or variance 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

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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.

Dated this 28th day of October, 2024.

BY THE COURT:

John M. Gerrard

Senior United States District Judge

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