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United States v. Lemusu

United States District Court, D. Hawaii

September 4, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
HERMAN LEMUSU, Defendant.

          ORDER RECOMMENDING DEFENDANT HERMAN LEMUSU FOR RDAP PROGRAM BUT DENYING DEFENDANT'S MOTION TO AMEND/CORRECT P.S.I. ON ALCOHOL AND DRUG USE (ECF NO. 375)

          HELEN GILMOR, UNITED STATES DEISTRICT JUDGE

         On December 1, 2003, Defendant Herman Lemusu was sentenced to 360 months imprisonment as to Counts 1 and 3, and 240 months as to Counts 2, 4, 5, and 6, all terms to run concurrently. Sixteen years later, Defendant filed a document entitled “Motion to Amend/Correct P.S.I. on Alcohol and Drug Use.” Defendant seeks to amend his 2004 Presentence Investigation Report to allow him to be eligible for the Residential Drug Abuse Program.

         The Court recommends Defendant be admitted to the Residential Drug Abuse Program, but the Court lacks the authority to modify the Presentence Investigation Report.

         Defendant's “Motion to Amend/Correct P.S.I. on Alcohol and Drug Use” (ECF No. 375) is DENIED.

         BACKGROUND

         I. The Indictment

         On March 20, 2003, the grand jury returned an eleven-count Third Superseding Indictment as to Defendant Herman Lemusu and another co-defendant. The Third Superseding Indictment charged Defendant as follows:

Count 1: Conspiracy to distribute with intent to distribute and manufacture 50 grams or more of methamphetamine, its salts, isomers, and salts of its isomers in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), and 846.
Count 2: Conspiracy to commit money laundering in violation of 18 U.S.C. §§ 2 and 1956(h).
Count 3: Distribution of 50 grams or more of methamphetamine, its salts, isomers, and salts of its isomers in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A).
Counts 4, 5, and 6: Money laundering in violation of 18 U.S.C. §§ 2 and 1956(a)(1)(A)(I).

         On April 18, 2003, the Jury found Defendant guilty of Counts I, 2, 3, 4, 5, and 6 of the Third Superseding Indictment. (ECF Nos. 124, 125).

         II. THE PRESENTENCE INVESTIGATION REPORT AND SENTENCING

         The Probation Office prepared a Presentence Investigation Report which was filed on January 12, 2004. (ECF No. 175). The Presentence Investigation Report calculated Defendant's total base offense level as 42 and criminal history category as I. The guideline ...


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