USA v. Zierke

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

UNITED STATES OF AMERICA,

Plaintiff,

vs.

GARY ZIERKE, JR.,

Defendant.

4:08-CR-3067

ORDER

The defendant has filed another motion to reduce his sentence. Filing
436. The Court will deny that motion.
The Court has already reviewed and rejected the defendant's arguments
regarding career offender status, and rejects them again for the same reasons.
See filing 435 at 4-6. The defendant also makes what seems to be a new
argument about "violation of a stipulated agreement" in which he claims that
the two-level enhancement to the offense level for obstruction of justice was
improperly applied because of a purported "stipulation" that the defendant
wouldn't face further punishment for the phone call underlying the
enhancement in exchange for permitting the call to be played to the jury at
trial. Filing 436 at 3. But the Court can find no such stipulation in the record,
and the phone call at issue was actually admitted into evidence over the
defendant's objection. See filing 133 at 178-89; see also United States v. Zierke,
618 F.3d 755, 758-59 (8th Cir. 2010). And finally, the defendant argues that
his sentence is unjust because he was held accountable for 50 grams of actual
methamphetamine. Filing 436 at 4-5. But his sentence was actually calculated
based on 629 grams of methamphetamine mixture. Filing 144 at 8.
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The defendant also requests that counsel be appointed to pursue these
claims. Filing 436. Finding no colorable merit to the defendant's claims, the
Court will deny appointment of counsel.
IT IS ORDERED that the defendant's motion to reduce sentence
(filing 436) is denied.
Dated this 4th day of November, 2024.

BY THE COURT:

John M. Gerrard
Senior United States District Judge

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