U.S. v. O'Banion

21 Citing cases

  1. Garner v. U.S. Dept. of Labor

    221 F.3d 822 (5th Cir. 2000)   Cited 20 times
    In Garner, the issue was whether the constitutional protection that "[n]o Bill of Attainder or ex post facto law shall be passed" was violated.

    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.

  2. U.S. v. Gonzales

    121 F.3d 928 (5th Cir. 1997)   Cited 182 times   1 Legal Analyses
    Holding that the district court properly admitted the defendant's answers to a police officer's question when the defendant spontaneously stated, after a police officer had confiscated cocaine from his warehouse, "[W]e made you work for that shit, you all thought you weren't going to find it" and "[A]II of that is mine"; the police officer questioned to what he was referring; and the defendant stated that he had been referring to "the coke and the gun"

    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).

  3. U.S. v. Park

    947 F.2d 130 (5th Cir. 1992)   Cited 17 times
    Holding that jeopardy does not attach until there is adjudication or final administrative action

    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.

  4. Tolbert v. RBC Capital Markets Corp.

    758 F.3d 619 (5th Cir. 2014)   Cited 23 times   3 Legal Analyses
    In Tolbert, plan participants could defer compensation to be earned in the upcoming year and elect to have their accounts distributed either before or after termination of employment.

    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.

  5. U.S. v. Trejo

    610 F.3d 308 (5th Cir. 2010)   Cited 207 times
    Holding that a claim that is "novel" and "not entirely clear under the existing case authority" is "doom[ed] . . . for plain error."

    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.

  6. U.S. v. Henao-Melo

    591 F.3d 798 (5th Cir. 2009)   Cited 32 times
    Reviewing for plain error because defendant did not specifically argue at sentencing that government failed to produce sufficient evidence that prior § 843(b) conviction constituted drug trafficking offense

    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.

  7. U.S. v. Ramos

    537 F.3d 439 (5th Cir. 2008)   Cited 96 times   1 Legal Analyses
    Concluding that controlling cases have applied § 924(c) to law enforcement officers and that "defendants' attempt to distinguish these controlling cases assumes their versions of the facts, specifically, that [the individual who was shot] posed a specific threat to their physical safety"

    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).

  8. U.S. v. Pando Franco

    503 F.3d 389 (5th Cir. 2007)   Cited 48 times   1 Legal Analyses
    Concluding that by answering some questions, after having received his Miranda warnings, the defendant “waived his right to have the entire conversation, including the implicit references to his silence contained therein, used against him as substantive evidence of guilt”

    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.

  9. U.S. v. Strain

    396 F.3d 689 (5th Cir. 2005)   Cited 26 times   2 Legal Analyses
    Vacating conviction, after trial in Texas, of defendant charged with "harbor[ing] or conceal[ing]" a fugitive, 18 U.S.C. § 1071, where defendant had placed a phone call to the fugitive and urged him to turn himself in, then traveled through and out of Texas to meet him in New Mexico, where she rented them a room and lied to police about his whereabouts, because her Texas-based phone call and travel, "although indispensable to the ultimateact of harboring in New Mexico, were preparatory acts for the commission of the actual crime — much like purchasing a gun and traveling to a bank to commit a robbery — and thus insufficient to support a finding of venue"

    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.

  10. U.S. v. Deville

    278 F.3d 500 (5th Cir. 2002)   Cited 43 times
    Finding a defendant's admission to carrying a gun in connection with drug trafficking corroborated by extensive evidence that the defendant engaged in drug trafficking

    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.