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 to reduce his sentence based on purported
amendments to the United States Sentencing Guidelines. Filing 476. His
motion will be denied.
It's not entirely clear what Guidelines amendments the defendant
believes have been adopted, but it doesn't matter, because at this point, no
Guidelines amendments have been made retroactive since Amendment 821 in
2023. See U.S.S.G. § 1B1.10(d). And a court can only reduce a sentence based
on amendments to the Sentencing Guidelines if they're made retroactive by
the Sentencing Commission. See 18 U.S.C. § 3582(c)(2) (court may reduce term
of imprisonment based on revised sentencing range "if such a reduction is
consistent with applicable policy statements issued by the Sentencing
Commission); U.S.S.G. § 1B1.13(b)(6) (extraordinary and compelling reasons
for a sentence reduction may include a change in the law "other than an
amendment to the Guidelines Manual that has not been made retroactive).
The defendant also advances familiar complaints about being sentenced
based on sentencing factors that weren't (according to the defendant) found by
the jury. Those claims are rejected for the reasons stated in filing 466. His
arguments regarding the predicate offenses for his career offender status are
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again rejected for the reasons stated in filing 436 and filing 435 at 5-6. And his
new argument premised on Counterman v. Colorado, 600 U.S. 66 (2023),
makes little sense. The Supreme Court held in Counterman that a criminal
conviction for communications involving a true threat of violence, the First
Amendment requires proof that the defendant had some subjective
understanding of the threatening nature of his statements, but that a mental
state of recklessness is sufficient. 600 U.S. at 69. The Court can find nothing
in the record to which that holding is applicable. Accordingly,
IT IS ORDERED that the defendant's motion for a sentence
reduction (filing 476) is denied.
Dated this 28th day of April, 2026.

BY THE COURT:

John M. Gerrard
Senior United States District Judge

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