Flemming v. Nestor, 363 U.S. 603, 616 (1960). Id. at 617; United States v. O'Banion, 943 F.2d 1422 (5th Cir. 1991). SBC Communications, Inc., 154 F.3d at 235.
Although the Solem criteria were articulated in a challenge to a state sentence, federal courts have applied a similar analysis in reviewing federal sentences. See United States v. O'Banion, 943 F.2d 1422, 1432 (5th Cir. 1991). Compare Harmelin, 501 U.S. at 962-94 (opinion of Scalia, J.) (arguing that the Eighth Amendment does not permit proportionality review by the courts) with id. at 997-1005 (opinion of Kennedy, J.) (arguing that the Eighth Amendment permits "narrow" proportionality review) and id. at 1009-27 (opinion of White, J.) (arguing that proportionality review is central to the Eighth Amendment).
This court has rejected the argument that the Due Process Clause requires Congress to utilize a less restrictive alternative, such as creating a rebuttable presumption that the funds in Park's possession were connected with criminal activity. See United States v. O'Banion, 943 F.2d 1422, 1433 (5th Cir. 1991). Nevertheless, prosecutorial discretion ought to focus on suspects whom the government believes are violating the laws at which the currency reporting regulations were aimed (drug trafficking, money laundering, and tax evasion), rather than on the absent-minded victim of relatively arcane regulations.
Indeed, “[i]t is not our role to do so.” United States v. O'Banion, 943 F.2d 1422, 1433 (5th Cir.1991). We instead apply ERISA as written.
Determining whether specific intent to commit promotion money laundering has been proven is necessarily a fact-bound inquiry frequently turning upon circumstantial evidence. Brown, 186 F.3d at 670; see also United States v. O'Banion, 943 F.2d 1422, 1429 (5th Cir. 1991) (quoting United States v. Maggitt, 784 F.2d 590, 593 (5th Cir. 1986)) ("Intent may, and generally must, be proven circumstantially.'"). Because of the myriad forms promotion money laundering can take, divining a factual criterion with any precision from the available cases can prove confounding. Adding to the difficulty is the varying procedural postures in which the cases and attending proof present themselves on appeal. Some are appealed after a full jury trial with all of the facts presented and a comprehensive record available for review.
Henao-Melo also contends that a § 843(b) conviction cannot constitute drug trafficking for purposes of sentencing enhancement, because the elements of § 843(b) do not match the definition of "drug trafficking offense" in § 2L1.2. "[W]e review de novo the district court's interpretation of the guidelines." United States v. O'Banion, 943 F.2d 1422, 1431 (5th Cir. 1991). As Henao-Melo readily admits, that contention is foreclosed by Pillado-Chaparro.
This issue was not raised below; our review is for plain error. See United States v. O'Banion, 943 F.2d 1422, 1432 (5th Cir. 1991). See, e.g., United States v. Bourgeois, 423 F.3d 501, 506 (5th Cir. 2005).
However, a prosecutor's question does not constitute evidence. United States v. O'Banion, 943 F.2d 1422, 1431 (5th Cir. 1991). In fact, all of the cases cited by Pando involved the actual presentation and admission of evidence by the court at trial.
The Government cites our decision in United States v. O'Banion to argue that the jury was entitled to reject Strain's characterization of the June 27 conversation as a matter of witness credibility. 943 F.2d 1422, 1427 (5th Cir. 1991). While this is certainly true, the jury's right to reject a witness's account of events does not entitle it to substitute another account for which there is no evidentiary support.
Aguirre v. Armstrong World Indus., Inc., 901 F.2d 1256, 1258 (5th Cir. 1990). An equal protection claim raised for the first time on appeal and which does not equate with plain error, will not be considered. United States v. O'Banion, 943 F.2d 1422, 1432 (5th Cir. 1991). Because we find that Cherry's sentence was correctly calculated under the guidelines, our refusal to hear his equal protection claim based on the calculation of his sentence would not result in a miscarriage of justice.