IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

UNITED STATES OF AMERICA,

Plaintiff, 

vs. 

CLIFTON D. REINOEHL,

Defendant.

4:23-CR-3066

TENTATIVE FINDINGS

The Court has received the revised presentence investigation report in 

this case. There are no motions for departure or variance. The defendant has 

objected (filing 43) to the presentence report.

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. There are no motions that require resolution at sentencing. The 

defendant has objected to the presentence report's assessment of two 

criminal history points for the defendant's 2019 Wyoming convictions for 

possession of a controlled substance and DUI. Filing 43. The presentence 

report indicates that the two sentences were imposed on different 

dates—but the defendant has submitted evidence that certainly seems 

to show that the defendant's two convictions resulted from a single arrest 

and two sentences imposed on the same date. Filing 44-1. And that would 

mean the convictions should be counted together for only a single 

criminal history point. See U.S.S.G. § 4A1.2(a)(2)(B). 

Accordingly, the Court's tentative conclusion is that the defendant's 

objection has merit. The Court will make a final ruling at sentencing. 

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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 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 25th day of March, 2024.

BY THE COURT:

John M. Gerrard

Senior United States District Judge

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