USA v. Zierke

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

UNITED STATES OF AMERICA,

Plaintiff,

vs.

GARY ZIERKE,

Defendant.

4:08-CR-3067

ORDER

The defendant has filed three new motions to reduce his sentence. Filing
450; filing 458; filing 462. None of his motions have any merit.
The first motion claims that the sentencing guidelines have been
amended effective February 2, 2024, to impose a maximum sentence of 25
years for violating 21 U.S.C. § "841(A)(1)(b)(1)(A)" and 15 years "under
841(A)(1)(b)(1)(b)." Filing 450 at 2. Neither of those subsections exist, but if the
defendant was referring to §§ 841(b)(1)(A) and (B), the statutory range for
those subsections remains 20 years-life and 5-40 years, respectively. See id.
1

The defendant does not cite the guidelines amendment on which he is
purportedly relying. No guidelines amendments took effect on February 2,
2024,
2
no amendment to the guidelines resembles the description offered by
the defendant, and no guideline imposes a maximum sentence of any kind for

1
The defendant's offenses of conviction were actually §§ 841(b)(1)(B) and (C) and his
sentences are being served concurrently, so the relevant statutory range is the 5-40 years'
imprisonment.
2
The effective date for retroactivity of Parts A and B, Subpart 1 of Amendment 821 was
February 1, 2024, but that amendment doesn't apply to the defendant. See filing 144 at 17.
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drug offenses that differs from the statutory maximum. Simply put, the Court
cannot find any basis for the defendant's argument.
The defendant also argues that the use of acquitted conduct, and
relevant conduct, and uncharged conduct, is unconstitutional. Filing 450 at 3.
But the evidence the defendant complains about was simply uncharged
conduct, see filing 450 at 4, and using uncharged conduct at sentencing is
constitutional where it doesn't increase the statutory minimum or maximum
sentence. See U.S. v. Leaf, 306 F.3d 529, 533 (8th Cir. 2002).
3

The defendant's other two motions raise one issue: He argues that the
drug weight used to calculate the guidelines range for his sentencing was
incorrect. Filing 458; filing 462. He's wrong about that—in fact, his theory
would raise his guidelines sentencing range, not lower it.
The defendant points out that the guidelines treat methamphetamine
mixture (just called "methamphetamine") and pure methamphetamine
("methamphetamine (actual)") differently. True enough. See U.S.S.G. § 2D1.1
cmt. B. So he contends that the 629 grams of methamphetamine his guidelines
range was based on should actually have been 314 grams (based on 50 percent
purity of the mixture). See filing 458 at 3. That, he claims, would reduce his
base offense level to 26 (under the 2024 guidelines).
But the defendant's math would actually have increased his sentence. If
the 629 grams of methamphetamine mixture attributed to him was 50 percent
pure, that would be 314.5 grams of methamphetamine (actual). And the
guidelines explain that when calculating the weight of a mixture, "use the
offense level determined by the entire weight of the mixture or substance, or

3
Not to mention that if the defendant's constitutional rights were violated, the remedy would
be a 28 U.S.C. § 2255 motion, not an ad hoc motion for a sentence reduction under a non-
existent guidelines amendment. See filing 435 at 9-10.
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the offense level deter-mined by the weight of the PCP (actual), amphetamine
(actual), or methamphetamine (actual), whichever is greater." § 2D1.1 cmt. B.
In other words, the defendant's argument wouldn't result in a base
offense level 26—it would result in a base offense level of 32, same as when the
defendant was sentenced. Compare § 2D1.1(c)(4), with filing 144 at 8. And
that's under today's guidelines. When the defendant was sentenced, under the
2008 guidelines, it would have been a base offense level of 34.
The defendant also provides no legal mechanism for correcting an
alleged sentencing error at this point. None of the authorities cited—18 U.S.C.
§ 3582(c)(2), Fed. R. Crim. P. 35(a),
4
or the All Writs Act—apply here. See
United States v. Noske, 235 F.3d 405, 406 (8th Cir. 2000). But the defendant's
misreading of the guidelines is dispositive. Accordingly,
The defendant's motions to reduce sentence (filing 450; filing 458;
filing 462) are denied.
Dated this 18th day of August, 2025.

BY THE COURT:

John M. Gerrard
Senior United States District Judge

4
Rule 35 only applies for 14 days after sentencing, so the defendant probably means Fed. R.
Crim. P. 36, but what's he's raised isn't a "clerical error." See United States v. Nelson, 988
F.2d 798, 811 (8th Cir. 1993).
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