IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

UNITED STATES OF AMERICA,

Plaintiff, 

vs. 

DAVID J. ELLIS,

Defendant.

4:23-CR-3060

TENTATIVE FINDINGS

The Court has received the revised presentence investigation report in 

this case. There are no objections to the presentence report. The defendant has 

filed a motion for variance. Filing 39.

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 

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 that require resolution at sentencing. The 

defendant has moved for a downward variance based on his 

personal circumstances, the circumstances of the offense, and this 

Court's decisions in United States v. Abraham, 944 F. Supp. 2d 723 

(D. Neb. 2013) and United States v. Smith, No. 4:20-CR-3085, 2021 

WL 4947575 (D. Neb. Oct. 25, 2021). Filing 39. 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.

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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 14th day of May, 2024.

BY THE COURT:

John M. Gerrard

Senior United States District Judge

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