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04-197 - USA v. Carlson


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04-197 - USA v. Carlson
June 14, 2005
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ORDER - This case, insofar as it concerns this defendant, is removed from the trial docket based upon the request of the defendant. A hearing on the defendant's anticipated plea of guilty is scheduled before Magistrate Judge Piester on the 21st day of July, 2005, at the hour of 3:30 p.m., in the SpecialProceedings Courtroom, Roman L. Hruska United States Courthouse, Omaha, Nebraska. For this defendant, the time between today's date and thehearing on the anticipated plea of guilty is excluded for purposes of computing the limits under the Speedy Trial Act. See 18 U.S.C. sec. 3161(h)(1)(I)&(h)(8)(A)(B) as to Carey R. Carlson (1). Signed by Magistrate Judge David L. Piester on 6/14/2005. (GJG, )
July 21, 2005
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ORDER as to defendant Carey R. Carlson. Counsel for the defendant has advised that the negotiations in this case have not concluded, so a plea agreement is not inexistence any longer. Additional time is necessary to determine if the defendant will plead or go to trial. Accordingly, IT THEREFORE HEREBY IS ORDERED: 1. The plea proceeding scheduled for July 21, 2005, is cancelled.2. Defendant's counsel shall inform the court within ten working days of the defendant's intentions so the matter may be scheduled accordingly. Signed by Magistrate Judge David L. Piester on 7/21/2005. (JAR)
August 31, 2005
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Order re: "reasonable doubt" standard at sentencing, and the clerk shall file this Memorandum and Order in all pending criminal cases. Signed by Judge Richard G. Kopf on 8/31/2005. (KLL, )
September 1, 2005
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ORDER that the motion of Carlos A. Monzon to withdraw as counsel forthe defendant, filing 48, is granted to Carey R. Carlson (1). Signed by Magistrate Judge David L. Piester on 9/1/2005. (CS, )
September 13, 2005
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ORDER - Trial of this matter is set to commence at 9:00 a.m., November 28, 2005, before the Honorable Richard G. Kopf in the Special Proceedings Courtroom, Roman L. Hruska United States Courthouse, Omaha, Nebraska. Jury selection will be held at commencement of trial. The time between September 13, 2005 and November 28, 2005 shall be deemed excludable time in any computation of time under the requirements of the Speedy Trial Act. Seee 18 U.S.C. section 3161(h)(8)(A)&(B). Excludable XT started as to defendant(s) Carey R. Carlson Jury Trial set for 11/28/2005 09:00 AM in Special Proceedings (Omaha) before Judge Richard G. Kopf. Signed by Magistrate Judge David L. Piester on 9/13/2005. (GJG, )
September 22, 2005
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ORDER denying as unnecesary 52 Motion to Substitute Attorney as to Carey R. Carlson (1) Signed by Magistrate Judge David L. Piester on 9/22/2005. (GJG, )
November 18, 2005
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ORDER as to defendant Carey R. Carlson. ***Change of Plea Hearing set for 12/20/2005 10:00 AM in Special Proceedings (Omaha) before Magistrate Judge David L. Piester; XT excludable started 11/18/2005-12/20/2005; termed 11/28/2005 trial date. Signed by Judge Richard G. Kopf on 11/18/2005. (KLL, )
December 15, 2005
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MEMORANDUM AND ORDER as to defendant(s) Carey R. Carlson. All Omaha trials and hearings currently assigned to me will be tried or otherwise disposed of in Courtroom Number Two in Lincoln, Nebraska. Change of Plea Hearing set for 12/20/2005 10:00 AM in Courtroom 2 (Lincoln) before Magistrate Judge David L. Piester. Signed by Magistrate Judge David L. Piester on 12/15/2005. (GJG, )
January 23, 2006
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ORDER as to defendant Carey R. Carlson. *** Sentencing RESET TO 3/10/2006 02:00 PM in Courtroom 1 (Lincoln) before Judge Richard G. Kopf. Signed by Judge Richard G. Kopf on 1/23/2006. (KLL, )
February 24, 2006
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ORDER as to Carey R. Carlson. It is ordered that the defendant's request for extension of time to file motion for deviation and/or variance 67 is granted. The defendant's motion for deviation and/or variance shall be filed on or before 2/27/2006. Signed by Judge Richard G. Kopf on 2/24/2006. (KLL, )
March 2, 2006
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TENTATIVE FINDINGS OF FACT regarding Revised Presentence Investigation Report and Addendum, as to defendant Carey R. Carlson. It is ordered that: (1) The defendant's objections 66 to drug quantity, lack of acceptance of responsibility reduction, and criminal history will be resolved at sentencing.(2) Defendant's motion 69 for variance from the Guidelines, also construed as a motion for departure, is denied. Even if every fact defense counsel asserts is true (see 70), neither a variance nor a departure from the advisory Guidelines is warranted in this case. That said, counsel may argue for a sentence less than provided by the advisory Guidelines at sentencing, and, if he does, I shall consider such an argument without prejudice. (3) To the extent that the defendant requests a concurrent sentence with the sentence imposed in Iowa, I will consider that question at sentencing. (4) The government's explanation for the Rule11(c)(1)(C) provisions in paragraph 10 of the plea agreement 60 is not convincing. Therefore, I warn the parties that I may not accept the plea agreement. First, it appears that the defendant admitted in a confession (after receiving Miranda warnings) that the quantity of drugs involved amounted to about 345.6 grams rather than the amount (40 to less than 70 grams) set forth in the Rule 11(c)(1)(C) plea agreement. (See PSR paragraphs 10&16 and addendum at first unnumbered page). Because the defendant made his confession without the protection of a proffer agreement, I see no reason why that confession should be disregarded when calculating the proper base offense level under the advisory Guidelines. If the government wishes me to treat the defendant's unprotected statement as the basis for a government sponsored motion for downward departure, that is an entirely different thing. If that is what the government wants, then the plea agreement should so state. Second, it also appears that the government is agreeing that the defendant's proper criminal history falls into category I whereas the PSR finds that history is properly category III. The statement in the plea agreement that the defendant's criminal history is best represented by category I is unexplained and therefore unconvincing. (Compare PSR paragraphs 26-34 and addendum at second unnumbered page). In short, I require government's counsel to give close attention to this issue and be prepared to justify the agreement. See, e.g., United States v. Coney, 390 F. Supp. 2d 844, 849-50 (D. Neb. 2005) (setting forth a methodology after Booker for justifying Rule 11(c)(1)(C) plea agreements that appear to conflict with the advisory Guidelines). (5) Because I am considering rejecting the Rule 11(c)(1)(C) plea agreement, my chambers shall provide a copy of these tentative findings to Chief United States Probation Officer Jim Rowoldt, United States Attorney Mike Heavican and Supervisory Assistant United States Attorney Mick Mickle for their information. Of course, and following standard operating procedures, the probation officer assigned to this case (USPO Otto) should also receive a copy of these tentative findings. (6) The parties are herewith notified that my tentative findings are that the presentence report is otherwise correct in all respects. ETC.***Termed 69. Signed by Judge Richard G. Kopf on 3/2/2006. (KLL, )
March 13, 2006
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ORDER as to defendant Carey R. Carlson. It is ordered that: (1) The Rule 11(c)(1)(C) plea agreement (60 paragraph 10), setting the base offense level at 28 (between 40 and 70 grams) and requiring that the defendant's criminal history be calculated at I, is rejected. (2) The defendant is advised that the court is not required to follow the plea agreement and the defendant may withdraw his guilty plea. If the plea is not withdrawn, the court may dispose of the case less favorably toward the defendant than the plea agreement contemplates. (3) No later than Monday April 10, 2006, the parties shall advise the undersigned whether they wish to proceed to trial or pursue some other disposition. They shall give this information by filing a written joint status report in the court file. The time between March 10, 2006 and April 10, 2006, is excluded from computation under the Speedy Trial Act in the interests of justice and in order to allow the parties a reasonable opportunity to consider their alternatives. See 18 U.S.C. sec. 3161(h)(8)(A)&(B). (4) The Clerk of the Court shall provide copies of this decision to counsel of record. My chambers shall also provide copies of this decision to United States Probation Officer (USPO) Sandra Otto, Supervisory USPO Mike Norton, United States Attorney Michael Heavican, Supervisory Assistant United States Attorney Mick Mickle, and Federal Public Defender David Stickman.***XT excludable started 3/13/2006-4/10/2006. Signed by Judge Richard G. Kopf on 3/13/2006. (KLL, )
April 12, 2006
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ORDER as to defendant Carey R. Carlson. It is ordered that: (1) This case shall proceed to sentencing on Tuesday, May 9, 2006, from 12:30-1:30 p.m., and one hour is allotted to consider all evidentiary questions. (2) We will take up the defendant's objection to drug quantity, acceptance of responsibility and criminal history at sentencing. The government is reminded that it has the burden of proof on drug quantity and criminal history and that it should be prepared to present evidence on those subjects. (3) If the defendant wishes to file additional objections to the presentence report, the defendant shall first submit a motion with a brief describing the objections and explaining the reasons why I should now consider additional objections. That motion shall be filed no later than April 21, 2006.***Sentencing set for 5/9/2006 12:30 PM in Courtroom 1 (Lincoln) before Judge Richard G. Kopf; termed 74. Signed by Judge Richard G. Kopf on 4/12/2006. (KLL, )
May 10, 2006
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JUDGMENT as to defendant Carey R. Carlson (1): Upon guilty plea to Count 1 of the Indictment, the defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of 108 months. Time shall run concurrent with sentence imposed in the District Court of Shelby County, Harlan, IA, case number FECR006740. Following release, defendant is to be on Supervised Release for 3 years. Special Assessment of $100 also ordered. Signed by Judge Richard G. Kopf on 5/10/2006, sentence imposed on 5/9/2006. (4 CC to USM) (JAR)