United States v. Hunter, 172 F.3d 1307 (11th Cir. 1999). · Go Syfert
United States v. Hunter, 172 F.3d 1307 (11th Cir. 1999). Cases Citing This Book View Copy Cite
63 citation events (58 in the last 25 years) across 6 distinct courts.
Treatment trajectory · 1999 → 2026 · click a year to view as-of
1999 2012 2026
Cited for
At page 1309 Determining firearm possession at site of charged conduct24 citing cases“the holdings of a prior decision can reach only as far as the facts and circumstances presented to the court in the case which produced that decision.”7 citing courts quote it · 21 listed here
  • Ariel Marcelo Bastias v. U.S. Attorney Gen., 158 F.4th 1188 (11th Cir. 2025).published 2 cites
    While it’s true that we’ve said that “the holding[] of a prior decision can reach only as far as the facts and circumstances presented to the Court in the case which produced that decision,” United States v. Aguillard, 217 F.3d 1319, 1321…
  • January Littlejohn v. Sch. Bd. of Leon Cnty. Florida, 132 F.4th 1232 (11th Cir. 2025).published
    And dicta [are] not binding on anyone for any purpose.” (citations omitted)); Chavers v. Sec’y, Fla. Dep’t of Corr., 468 F.3d 1273, 1275 (11th Cir. 2006) (“The holdings of a prior decision can reach only as far as the facts and circumstanc…
  • United States v. Donald Matthew Delzoppo, No. 23-11479 (11th Cir. Feb. 27, 2024).unpublished
    United States v. Hunter, 172 F.3d 1307, 1309 (11th Cir. 1999).
  • Jerry Nelson v. Keyvon Sellers, 89 F.4th 1289 (11th Cir. 2024).published 3 cites
    And dicta is not binding on anyone for any purpose.”) (citations omitted); Chavers v. Sec’y, Fla. Dep’t of Corr., 468 F.3d 1273, 1275 (11th Cir. 2006) (“The holdings of a prior decision can reach only as far as the facts and circumstances…
  • United States v. Michael Jerome Files, 63 F.4th 920 (11th Cir. 2023).published 2 cites
    Compare Concepcion, 142 S. Ct. at 2396, with Denson, 963 (quoting parenthetically United States v. Hunter, 172 F.3d 1307, 1309 (11th Cir. 1999) (Carnes, J., concurring))).
  • United States v. Andres Quintanilla, 658 F. App'x 496 (11th Cir. 2016).unpublished
    United States v. White, 335 F.3d 1314, 1319 (11th Cir. 2003). 3 Under § 2Dl.l(b)(l), a defendant’s offense level is increased by two levels “[i]f a dangerous weapon (including a firearm) was possessed.” To prove that the enhancement applie…
  • UPS Supply Chain Solutions, Inc. v. Megatrux Transp., Inc., 750 F.3d 1282 (11th Cir. 2014).published
    “The holdings of a prior decision can reach only as far as the facts and circumstances presented to the Court in the case which produced that decision.” United States v. Hunter, 172 F.3d 1307, 1310 (11th Cir.1999) (Carnes, J., concurring).
  • United States v. Nouln Soun, 303 F. App'x 753 (11th Cir. 2008).unpublished
    United States v. Hunter, 172 F.3d 1307, 1309 (11th Cir.1999).
  • United States v. Stallings, 194 F. App'x 827 (11th Cir. 2006).unpublished
    The “site of the charged conduct” includes conduct relevant to the offense of conviction, that is, acts “that were part of the same course of conduct or common scheme or plan as the offense of conviction.” United States v. Hunter, 172 F.3d…
  • United States v. Dexter Hubbard, No. 03-11905 (11th Cir. Sept. 7, 2006).unpublished
    The “site of the charged conduct” includes conduct relevant to the offense of conviction, that is, acts “that were part of the same course of conduct or common scheme or plan as the offense of conviction.” United States v. Hunter, 172 F.3d…
Show 11 more citing cases
  • McClendon v. Georgia Dep't of Cmty. Health, 261 F.3d 1252 (11th Cir. 2001).published
    See generally United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir.2000) (“The holdings of a prior decision can reach only as far as the facts and circumstances presented to the Court in the case which produced that decision.”) (quoti…
  • United States v. Rayton, 165 F. Supp. 2d 1177 (D. Kan. 2001).published
    Therefore, a “firearm enhancement is to be applied whenever a firearm is possessed during conduct relevant to the offense of conviction.” United States v. Hunter, 172 F.3d 1307, 1309 (11th Cir.1999) (internal citations and quotations omitt…
  • United States v. Salery, 119 F. Supp. 2d 1268 (M.D. Ala. 2000).published
    Section 2D1.1(b)(1) provides for a two-level enhancement of a defendant’s base offense level “[i]f a dangerous weapon (including a firearm) was possessed.” Application Note Three to Guideline § 2D1.1 states that “[t]he adjustment should be…
  • United States v. Augusto Reyes-Gonzalez, No. 25-12656 (11th Cir. July 16, 2026).unpublished
    See United States v. Hunter, 172 F.3d 1307, 1309 (11th Cir. 1999).
  • United States v. Russell Louis Tatum, Jr., 486 F. App'x 792 (11th Cir. 2012).unpublished
    (concluding firearms *798 were present at the site of the charged drug trafficking because they were found in defendant’s home along with plastic baggies, glass vials, mixing spoons, diluting agent and transaction records)
  • United States v. David Leon Smith, Jr., 478 F. App'x 661 (11th Cir. 2012).unpublished
    (concluding firearms were present at the site of the charged drug trafficking where they were found in defendant’s home along with plastic baggies, glass vials, mixing spoons, diluting agent, and transaction records)
  • United States v. Lapatrick Deon McIntosh, 203 F. App'x 302 (11th Cir. 2006).unpublished
    See United States v. Hunter, 172 F.3d 1307, 1309 (11th Cir.1999).
  • United States v. Jennifer Aguillard, 217 F.3d 1319 (11th Cir. 2000).published
    See United States v. Hunter, 172 F.3d 1307, 1309 (11th Cir.1999) (Carnes, J., concurring) (“The holdings of a prior decision can reach only as far as the facts and circumstances presented to the Court in the case which produced that decisi…
  • United States v. Kevon Keith Holmes, No. 20-13718 (11th Cir. May 27, 2021).unpublished
    See, e.g., United States v. Hunter, 172 F.3d 1307, 1309 (11th Cir. 1999).
  • State of Florida v. U.S. Dep't of HHS, No. 11-11021 (11th Cir. Aug. 12, 2011).published
    See Licciardello v. Lovelady, 544 F.3d 1280 , 1288 n.8 (11th Cir. 2008) (“Our holding, as always, is limited to the facts before us.”); see also United States v. Hunter, 172 F.3d 1307, 1310 (11th Cir. 1999) (Carnes, J., concurring) (“The h…
  • KMS Restaurant Corp. v. Wendy's Int'l, Inc., 361 F.3d 1321 (11th Cir. 2004).published
    Watts v. BellSouth Telecomms., Inc., 316 F.3d 1203, 1207 (11th Cir.2003) (“[judicial decisions cannot make law beyond the facts of the cases in which those decisions are announced.”); see also United States v. Aguillard, 217 F.3d 1319, 132…
At page 1310 Affirming enhancement pursuant to U.S.S.G. § 2D1.1(b)(1)17 citing cases“we are 'free to give that question fresh consideration.”3 citing courts quote it · 15 listed here
  • Poarch Band of Creek Indians v. James H. Hildreth, Jr., 656 F. App'x 934 (11th Cir. 2016).unpublished 2 cites
    (But while the prior [panel] precedent rule requires us to follow the holding of an earlier decision, it does not require us to follow the language of the accompanying opinion that is unnecessary to the decision, i.e.,…)
  • Ariel Marcelo Bastias v. U.S. Attorney Gen., 158 F.4th 1188 (11th Cir. 2025).published 2 cites
    While it’s true that we’ve said that “the holding[] of a prior decision can reach only as far as the facts and circumstances presented to the Court in the case which produced that decision,” United States v. Aguillard, 217 F.3d 1319, 1321…
  • United States v. Matthew G. Munksgard, 913 F.3d 1327 (11th Cir. 2019).published 2 cites
    See In re BFW Liquidation, LLC, 899 F.3d 1178, 1186 (11th Cir. 2018) 20 Case: 16-17654 Date Filed: 01/30/2019 Page: 21 of 32 (“If a statement is ‘not necessary to the result the Court reached in the case,’ then that statement is dictum.” (…
  • Kaye v. Blue Bell Creameries, Inc. (In re BFW Liquidation, LLC), 899 F.3d 1178 (11th Cir. 2018).published 2 cites
    See Black , 373 F.3d at 1144 ; Hunter , 172 F.3d at 1310 (Ed Carnes, J., concurring).
  • In re Devon Chance, No. 16-14643 (11th Cir. Aug. 2, 2016).published
    (Games,J., concurring)
  • UPS Supply Chain Solutions, Inc. v. Megatrux Transp., Inc., 750 F.3d 1282 (11th Cir. 2014).published
    “The holdings of a prior decision can reach only as far as the facts and circumstances presented to the Court in the case which produced that decision.” United States v. Hunter, 172 F.3d 1307, 1310 (11th Cir.1999) (Carnes, J., concurring).
  • Mildenberger v. United States, 91 Fed. Cl. 217 (Fed. Cl. 2010).published
    The Federal Circuit has noted that “it is well established that a general expression in an opinion, which expression is not essential to the disposition of the case, does not control a judgment in a subsequent proceeding.” 14 Smith v. Orr,…
  • United States v. Ignasio Maldenaldo Sanchez, United States of Am. v. Santiago Gilberto Sanchez, 269 F.3d 1250 (11th Cir. 2001).published 2 cites
    Our own court will face uncertainty; in analyzing any question answered by dictum, “we are ‘free to give that question fresh consideration.’” United States v. Hunter, 172 F.3d 1307, 1310 (11th Cir.1999) (Carnes, J., concurring) (quoting Gr…
  • United States v. Ignasio Maldenaldo Sanchez, 242 F.3d 1294 (11th Cir. 2001).published
    Our own court will face uncertainty; in analyzing any question answered by dictum, “we are ‘free to give that question fresh consideration.’” United States v. Hunter, 172 F.3d 1307, 1310 (11th Cir. 1999) (Carnes, J., concurring) (quoting G…
  • United States v. Santiago Gilberto Sanchez, No. 00-13447 (11th Cir. Feb. 26, 2001).published
    Our own court will face uncertainty; in analyzing any question answered by dictum, “we are ‘free to give that question fresh consideration.’” United States v. Hunter, 172 F.3d 1307, 1310 (11th Cir. 1999) (Carnes, J., concurring) (quoting G…
Show 5 more citing cases
  • United States v. Pedro Rafael Caraballo-Martinez, 866 F.3d 1233 (11th Cir. 2017).published
    See United States v. Hunter, 172 F.3d 1307, 1310 (11th Cir. 1999) (Carnes, J., concurring).
  • In re Chance, 831 F.3d 1335 (11th Cir. 2016).published
    Id. (internal quotation marks omitted); see Edwards v. Prime, Inc., 602 F.3d 1276, 1298 (11th Cir.2010); see also United States v. Hunter, 172 F.3d 1307, 1310 (11th Cir.1999) (Carnes, J., concurring) (“The holdings of a prior decision can…
  • Castillo v. Florida, 722 F.3d 1281 (11th Cir. 2013).published 3 cites
    Edwards v. Prime, Inc., 602 F.3d 1276, 1298 (11th Cir. 2010); see also United States v. Hunter, 172 F.3d 1307, 1310 (11th Cir. 1999) (Carnes, J., concurring) (“The holdings of a prior decision can reach only as far as the facts and circums…
  • State of Florida v. U.S. Dep't of HHS, No. 11-11021 (11th Cir. Aug. 12, 2011).published
    See Licciardello v. Lovelady, 544 F.3d 1280 , 1288 n.8 (11th Cir. 2008) (“Our holding, as always, is limited to the facts before us.”); see also United States v. Hunter, 172 F.3d 1307, 1310 (11th Cir. 1999) (Carnes, J., concurring) (“The h…
  • Florida ex rel. Attorney Gen. v. United States Dep't of Health & Human Servs., 648 F.3d 1235 (11th Cir. 2011).published 2 cites
    See Licciardello v. Lovelady, 544 F.3d 1280 , 1288 n. 8 (11th Cir.2008) ("Our holding, as always, is limited to the facts before us."); see also United States v. Hunter, 172 F.3d 1307, 1310 (11th Cir.1999) (Carnes, J., concurring) ("The ho…
At page 1308 Distinguishing firearm possession for sentencing enhancement5 citing casesupholding the enhancement where the police, two days after arresting Hunter in his car for drug offenses, discovered hundreds of plastic baggies, glass vials, mixing spoons, diluting agents, transaction records, and 5 firearms in his home, which was almost 100 miles away from the location of his ar…1 citing court put it this way
  • United States v. Cliff Leonard Meryl, 322 F. App'x 871 (11th Cir. 2009).unpublished
    United States v. Hunter, 172 F.3d 1307, 1308 (11th Cir.1999).
  • United States v. Domingo Rodriguez, 535 F. App'x 879 (11th Cir. 2013).unpublished 2 cites
    We have interpreted the Guideline and its application notes to mean that “[t]o justify a firearms enhancement, the government must either [1] establish by a preponderance of the evidence that the firearm was present at the site of the char…
  • United States v. Carlton Roland Hunter, 342 F. App'x 493 (11th Cir. 2009).unpublished
    See United States v. Hunter, 172 F.3d 1307, 1308 (11th Cir.1999).
  • United States v. Charles Willis, 284 F. App'x 687 (11th Cir. 2008).unpublished
    (upholding the enhancement where the police, two days after arresting Hunter in his car for drug offenses, discovered hundreds of plastic baggies, glass vials, mixing spoons, diluting agents, transaction records, and 5 f…)
  • United States v. Donald Miggins, Edward McDaniels & Charles Moore, Jr., 302 F.3d 384 (6th Cir. 2002).published
    (finding that enhancement under USSG § 2D1.1 was proper where drug paraphernalia and firearms were found at the defendant’s residence located 100 miles from the scene of his arrest)
Other citing cases6 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Michael Jon HUNTER, Defendant-Appellant
97-6903.
Court of Appeals for the Eleventh Circuit.
Apr 20, 1999.
Published opinion
172 F.3d 1307
1999 U.S. App. LEXIS 7546
1999 WL 227208
Susan G. James, Montgomery, AL, for Defendant-Appellant., Redding Pitt, U.S. Atty., Laura L. Forehand, Asst. U.S. Atty., Montgomery, AL, for Plaintiff-Appellee.
Hatchett, Carnes, Farris.
Cited by 52 opinions  |  Published

Lead Opinion

FARRIS, Senior Circuit Judge:

Background

Michael Jon Hunter was convicted of four counts of possession of narcotics with intent to distribute in violation of 21 U.S.C. § 841(a)(1). He pled guilty and was sentenced to 57 months in prison.

Hunter was arrested after selling several grams of amphetamine to a confidential informant of the Prattville, Alabama Police Department. The transaction took place from Hunter’s automobile, where he was arrested while preparing to inject himself with a controlled substance. A subsequent search of the automobile yielded significant quantities of drugs, cash, and records of drug transactions. Two days later, authorities searched Hunter’s home, which was located almost 100 miles away from the scene of the arrest. This search yielded no drugs, but hundreds of plastic baggies, over a hundred glass vials, mixing spoons, diluting agents, transaction records, and five firearms were recovered. As a result, Hunter was also charged with being a felon in possession of a firearm.

The sentencing court found that the evidence recovered from Hunter’s home demonstrated he was engaging in drug trafficking from his home, and such conduct was relevant to sentencing. United States v. Hunter, 980 F.Supp. 1439, 1445-47 (M.D.Ala.1997). The court concluded it could group the four drug charges with the gun charge under U.S.S.G. § 3D1.2, which provides that “[a]ll counts involving substantially the same harm shall be grouped together.” Multiple counts involve substantially the same harm “[wjhen one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.” U.S.S.G. § 3D1.2(c). A firearm is a specific offense characteristic of a drug count under § 2D1.1(b)(1). Since the gun in the instant case was found 100 miles from the scene of the conduct for which Hunter was charged, we must decide whether that gun involves substantially the same harm as the other charges. Hunter challenges only the propriety of grouping these counts, which led to his sentence of 57 months.

Discussion

The district court’s findings of fact are reviewed for clear error, and its conclusions of law, including application of the sentencing guidelines, are reviewed de novo. United States v. Smith, 127 F.3d 1388, 1389 (11th Cir.1997).

Specific offense characteristic enhancements under U.S.S.G. § 2D1.1(b)(1) for possession of a firearm are statutorily proper “[i]f a dangerous weapon was pos[*1309]sessed.” There are two recent Eleventh Circuit cases discussing “possession” in this context. In United States v. Cooper, 111 F.3d 845 (11th Cir.1997), the defendant was charged with drug trafficking offenses based on drugs found in a warehouse. Id. at 846. When police searched Cooper’s house several miles from the warehouse, they found cash, a key to the warehouse, a suitcase similar to that in which the drugs were stored, and two guns. Id. We vacated a district court determination that the firearms were possessed in relation to the drug offense . and stated that “§ 2D1.1(b)(1) requires the government to show by a preponderance of the evidence that the firearm was present at the site of the charged conduct.” Id. at 847 (citing United States v. Hall, 46 F.3d 62, 63 (11th Cir.1995)). Since the weapons were found at Cooper’s home, not “at the site of the offense conduct as required by § 2D1.1(b)(1) and its commentary,” the enhancement was improper. Id. at 847.

We decided the second case, United States v. Smith, 127 F.3d 1388 (11th Cir.1997), subsequent to Hunter’s sentencing. In Smith, we found that a firearm enhancement is “authorized if the weapon was possessed during the offense of conviction or during related relevant conduct." Id. at 1390 (emphasis added). We further held “that the enhancement is to be applied whenever a firearm is possessed during conduct relevant to the offense of conviction.” Id. (citing authority from the Second, Fourth, Fifth, Seventh, and Tenth Circuits). Smith had sold cocaine to an informant and been observed obtaining the drag from a metal cabinet. Id. at 1389. Several weeks after the sale for which he was indicted, Smith was again observed retrieving drugs from the cabinet and was arrested after driving away. Id. He had a loaded gun on the car seat next to him and cocaine in a bag. Id. We considered this “relevant conduct” to the charged offense and applied a firearm enhancement. Id. at 1390. We factually distinguished Cooper by noting that Smith had the firearm with him when he was arrested whereas in Cooper the firearm was neither on the defendant’s person nor found in proximity to the drugs. Id. at 1390 n. 1.

Despite arguable inconsistencies, Cooper and Smith yield consistent holdings. In Cooper, we stated that an enhancement is proper where the firearm was “present at the site of the charged conduct.” Cooper, 111 F.3d at 847 (citing United States v. Hall, 46 F.3d 62, 63 (11th Cir.1995)). Recognizing the 1991 Sentencing Guideline amendment deleting the restriction that the weapon must be possessed during the offense of conviction, we recently clarified our statement from Cooper. In Smith, we found that a firearm enhancement is “to be applied whenever a firearm is possessed during conduct relevant to the offense of conviction.” Smith, 127 F.3d at 1390 (citing authority from the Second, Fourth, Fifth, Seventh, and Tenth Circuits). We therefore clarified that “site of the charged conduct” includes conduct relevant to the offense of conviction, that is, acts “that were part of the same course of conduct or common scheme or plan as the offense of conviction.” Id. (citing U.S.S.G. § 1B1.3(a)(2)).

Although decided prior to Smith, the sentence imposed by the district court is consistent with these holdings. The district court found that in Cooper, unlike the instant case, the Eleventh Circuit was not required to reach the question of whether relevant conduct occurring where the weapons were found could support an enhancement of the drug offense because it characterized the suitcase, cash, and warehouse key as insufficient evidence of drug transactions in the home. Hunter, 980 F.Supp. at 1446. In contrast, it found the paraphernalia recovered from Hunter’s home to be sufficient evidence of conduct related to the offense of conviction. Id. This is in line with our holding in Smith.

There was ample evidence in the instant case for the district court to conclude that the drag paraphernalia found in Hunter’s home was part of the same course of conduct (i.e. possession with intent to distribute) for which he was charged and convict[*1310]ed. Its statements as to the enhancement pursuant to U.S.S.G. § 2D1.1(b)(1) were proper.

AFFIRMED.

Concurrence

CARNES, Circuit Judge,

concurring:

The opinion in United States v. Cooper, 111 F.3d 845, 847 (11th Cir.1997), says that “§ 2D1.1(b)(1) requires the government to show by a preponderance of the evidence that the firearm was present at the site of the charged conduct.” The government did not and could not show that in this case, yet the district court applied the § 2D1.1(b)(1) dangerous weapon enhancement. If the quoted language from the Cooper opinion was a holding, we would be required to vacate the sentence in this case and remand for resentencing without the enhancement.

We would be required to do that, because under our circuit’s operating law, we must follow the holding of a prior panel even if we believe it is wrong. See, e.g., Wascura v. Carver, 169 F.3d 683 (11th Cir.1999)(noting that we had no occasion to pass on a party’s criticism of a prior panel’s decision, because “we are bound by the [prior] decision regardless of whether we agree with it”); United States v. Steele, 147 F.3d 1316, 1317-18 (11th Cir.1998) (“Under our prior panel precedent rule, a panel cannot overrule a prior one’s holding even though convinced it is wrong.”).

But while the prior precedent rule requires us to follow the holding of an earlier decision, it does not require us to follow the language of the accompanying opinion that is unnecessary to the decision, i.e., we are not required to follow dicta. See, e.g., McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1077 (11th Cir.1996) (“we are not required to follow dicta contained in our own precedents”); Great Lakes Dredge & Dock Co. v. Tanker Robert Watt Miller, 957 F.2d 1575, 1578 (11th Cir.1992)(what is said in a prior opinion about a question not presented there is dicta, and dicta is not binding precedent, so a later panel is “free to give that question fresh consideration”); see also McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1315 (11th Cir.1998)(Carnes, J., concurring) (explaining why “dicta in our opinions is not binding on anyone for any purpose”). The question, then, is what is the Cooper holding, and what is merely dicta. More specifically, the question is did Cooper hold that possession of a dangerous weapon during relevant conduct away from the site of the offense conduct could not support a § 2D1.1(b)(1) dangerous weapon enhancement?

The answer is Cooper did not and could not have held that, because the issue was not presented by the facts in Cooper. The holdings of a prior decision can reach only as far as the facts and circumstances presented to the Court in the case which produced that decision. There was no proof the weapons found away from the site of the charged conduct in Cooper were possessed during relevant conduct, so the panel in that case did not have before it the issue of whether possession during relevant conduct could satisfy § 2D1.1(b)(1). It is true that the Cooper opinion says that the possession must be at the site of the charged conduct for the enhancement to be applicable, and that statement certainly implies possession off-site during relevant conduct is insufficient. But that implication is only dicta, because it is not necessary to the result the Court reached in the case. See, e.g., American Bank and Trust Co. v. Dallas County, 463 U.S. 855, 871, 103 S.Ct. 3369, 3379, 77 L.Ed.2d 1072 (1983)(statements in an opinion not necessary to the decision of the case are dicta); United States v. Eggersdorf, 126 F.3d 1318, 1322 n. 4 (11th Cir.1997) (language in an opinion “not necessary to deciding the case then before us” is dicta). Because any statement or implication in Cooper about possession during off-site relevant conduct is dicta, we are “free to give that question fresh consideration,” Great Lakes Dredge & Dock Co., 957 F.2d at 1578.[1]

[*1311] Giving the question fresh consideration, I agree with the majority that possession of a dangerous weapon during relevant conduct is sufficient for § 2D1.1(b)(1) purposes, even when the weapon was not also possessed at the site of the charged conduct. By so holding, we give meaning to the 1991 amendment to the guidelines that deleted from § 2D1.1(b)(1) the requirement the weapon be possessed during the offense of conviction, see United States v. Smith, 127 F.3d 1388, 1389-90 (11th Cir.l997)(discussing Amendment No. 394 and its effect), and we align ourselves with the at least six other circuits that have reached the same conclusion, see David v. United States, 134 F.3d 470, 476-77 (1st Cir.1998); United States v. Wetwattana, 94 F.3d 280, 284 n. 6 (7th Cir.1996); United States v. Ortega, 94 F.3d 764, 767-68 (2d Cir.1996); United States v. Vital, 68 F.3d 114, 119 (5th Cir.1995); United States v. Roederer, 11 F.3d 973, 982 (10th Cir.1993); United States v. Falesbork, 5 F.3d 715, 721 (4th Cir.1993); United States v. Willard, 919 F.2d 606, 609-10 (9th Cir.1990).

1

The opinion in Cooper cites identical language from United States v. Hall, 46 F.3d 62, 63 (11th Cir.1995), but that earlier language is itself dicta insofar as the present issue is[*1311] concerned, because the firearm in Hall was at the site of the charged conduct. Two layers of dicta cannot do what one does not — bind a later panel.