U.S. v. Dabeit

56 Citing cases

  1. U.S. v. Dabeit

    Nos. 3:99-CR-0251-X (02), 3:01-CV-0423-P (N.D. Tex. Jun. 12, 2002)

    The Fifth Circuit Court of Appeals affirmed the conviction on direct appeal. See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). Movant raised two claims on appeal: (1) the trial court erred in failing to invite an allocution from movant and (2) the trial court misapplied the enhanced sentencing of 8 U.S.C. § 1326 (b)(2), due to an error in viewing a previous conviction as an "aggravated felony."

  2. United States v. De La Cruz

    861 F.3d 600 (5th Cir. 2017)   Cited 3 times

    "First, it gives the defendant one more opportunity before conviction ‘to throw himself on the mercy of the court.’ " United States v. Dabeit , 231 F.3d 979, 981 (5th Cir. 2000), abrogated by Reyna , 358 F.3d 344. "The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself." Green , 365 U.S. at 304, 81 S.Ct. 653. The right "also has symbolic importance, ‘maximizing the perceived equity of the [sentencing] process.

  3. U.S. v. Izaguirre-Flores

    405 F.3d 270 (5th Cir. 2005)   Cited 118 times
    Holding that “[t]aking indecent liberties with a child to gratify one's sexual desire constitutes ‘sexual abuse of a minor’ because it involves taking undue or unfair advantage of the minor.”

    523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).See Apprendi, 530 U.S. at 489-90, 120 S.Ct. 2348; United States v. Garcia-Mejia, 394 F.3d 396, 397 (5th Cir. 2004); United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).Dabeit, 231 F.3d at 984 (internal quotation marks and citation omitted).

  4. U.S. v. Garcia-Mejia

    394 F.3d 396 (5th Cir. 2004)   Cited 9 times
    Explaining that a condition of supervised release prohibiting the possession of a dangerous weapon would not prevent the defendant from using a steak-knife at a restaurant to eat his meal but would prevent the defendant from carrying the steak-knife in his pocket for protection

    Turning to his Apprendi challenge, as Garcia-Mejia concedes, his argument that the "felony" and "aggravated felony" provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional in light of Apprendi is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).Apprendi did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90, 120 S.Ct. 2348; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). This court must follow Almendarez-Torres "unless and until the Supreme Court itself determines to overrule it."

  5. U.S. v. Reyna

    358 F.3d 344 (5th Cir. 2004)   Cited 125 times
    Holding that we should "presume prejudice when a defendant shows a violation of the right and the opportunity for such violation to have played a role in the district court's sentencing decision"

    Rather we have consistently held that this error requires automatic reversal. United States v. Dabeit, 231 F.3d 979, 981 (5th Cir. 2000); United States v. Myers, 150 F.3d 459 (5th Cir. 1998). We took this case en banc to reconsider these precedents.

  6. U.S. v. Mancia-Perez

    331 F.3d 464 (5th Cir. 2003)   Cited 27 times
    Holding that this court must follow the precedent set in Almendarez-Torres "unless and until the Supreme Court itself determines to overrule it"

    Apprendi did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at 490, 120 S.Ct. 2348; see also United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000) (noting that the Supreme Court in Apprendi expressly declined to overrule Almendarez-Torres). This court therefore must follow Almendarez-Torres "unless and until the Supreme Court itself determines to overrule it."

  7. U.S. v. Reyna

    331 F.3d 448 (5th Cir. 2003)   Cited 2 times

    The district court's denial of the right of allocution is never subject to plain or harmless error review under Rule 52; it requires automatic reversal. United States v. Dabeit, 231 F.3d 979, 981 (5th Cir. 2000); Myers, 150 F.3d at 463. III. DISCUSSION

  8. U.S. v. Quintana

    300 F.3d 1227 (11th Cir. 2002)   Cited 21 times
    Holding that denial of right to allocute was not prejudicial because district court sentenced defendant to low end of guideline range

    The ability to speak directly to the sentencing judge "gives the defendant one more opportunity . . . to throw himself on the mercy of the court." United States v. Dabeit, 231 F.3d 979, 981 (5th Cir. 2000) (per curiam), cert. denied, 531 U.S. 1202, 121 S.Ct. 1214, 149 L.Ed.2d 126 (2001). The defendant's comments may, in some circumstances, have a tangible effect on the sentence imposed; the Supreme Court has noted that "[t]he most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself."

  9. U.S. v. Taylor

    277 F.3d 721 (5th Cir. 2001)   Cited 34 times
    Finding that the Government failed to show that the PSR did not contain proffered information because the Government did not provide any sworn testimony to support its assertions

    Generally, a PSR bears sufficient indicia of reliability to permit the district court to rely on it at sentencing. United States v. Dabeit, 231 F.3d 979, 983 (5th Cir. 2000); United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995). "The PSR, however, cannot just include statements, in the hope of converting such statements into reliable evidence, without providing any information for the basis of the statements."

  10. Nava-Virrueta v. U.S.

    EP-05-CA-0099-DB, EP-03-CR-1420-DB (W.D. Tex. Dec. 20, 2007)

    Nava appealed. United States v. Dabiet, 231 F.3d 979, 984 (5th Cir. 2000).