United States v. Norberto B. Luna (1999)

See, e.g., United States v. Weems, 322 F.3d 18, 26 (1st Cir.2003) (considering Scarborough to be unaltered by Jones); United States v. Lemons, 302 F.3d 769, 773 (7th Cir.2002) (noting “ample Seventh Circuit precedent” upholding § 922(g)(1) because of its jurisdictional hook and suggesting that if Lopez undercuts this approach, “it is for the Supreme Court to so hold”); United States v. Cortes, 299 F.3d 1030 , 1037 n. 2 (9th Cir.2002) (noting that doubts have been raised but …

Walton argues that the district court double counted the same conduct by applying sentence enhancements because the firearm was stolen and because it was used in connection with another felony offense, but he acknowledges that his argument is foreclosed by United States v. Luna, 165 F.3d 316, 323 (5th Cir. 1999), and * Pursuant to 5TH CIR.

PER CURIAM: * Appealing the judgment in a criminal case, Derrick Deon Brice raises arguments that are foreclosed by United States v. Alcantar, 733 F.3d 143, 145-46 (5th Cir. 2013), United States v. Luna, 165 F.3d 316, 319 (5th Cir. 1999), and United States v. Trejo, 610 F.3d 308, 312-13 (5th Cir. 2010).

No. 01-40011 -2- or transported in interstate or foreign commerce” provides the requisite interstate commerce element. 18 U.S.C. § 922 (u); United States v. Luna, 165 F.3d 316, 320-22 (5th Cir.), cert. denied, 526 U.S. 1126 (1999).

See United States v. Brown, 169 F.3d 89, 93 (1st Cir.1999); United States v. Turnipseed, 159 F.3d 383, 385-86 (9th Cir.1998); United States v. Luna, 165 F.3d 316, 323-25 (5th Cir.1999).

United States v. Shabani, 513 U.S. 10, 17 , 115 S.Ct. 382 , 130 L.Ed.2d 225 (1994) (citations omitted); United States v. Luna, 165 F.3d 316, 324 (5th Cir.1999).

We review this legal issue de novo. 10 See United States v. Luna, 165 F.3d 316, 319 (5th Cir.1999), cert. denied, — U.S. —, 119 S.Ct. 1783 , 143 L.Ed.2d 811 (1999) (reviewing constitutionality of extradition statute de novo).

“Application Note 12 ... explicitly, carefully and thoroughly provides that in certain cases of convictions involving stolen or altered firearms a defendant shall be spared from enhancement under § 2K2.1(b)(4) when his base offense is determined under § 2K2.1(a)(7).” United States v. Luna, 165 F.3d 316, 326 (5th Cir.1999) (Dennis, J., concurring), cert, denied, — U.S.-, 119 S.Ct. 1783 , 143 L.Ed.2d 811 (1999).

"Application Note 12 . . . explicitly, carefully and thoroughly provides that in certain cases of convictions involving stolen or altered firearms a defendant shall be spared from enhancement under § 2K2.1(b)(4) when his base offense is determined under § 2K2.1(a)(7)." United States v. Luna, 165 F.3d 316, 326 (5th Cir. 1999) (Dennis, J., concurring), cert. denied, -- S. Ct. --, 1999 WL 231591 (U.S. May 17, 1999) (No. 98-8898).

United States v. Luna, 165 F.3d 316, 323 (5th Cir. 1999); see also United States v. Hawkins, 69 F.3d 2 Case: 24-40402 Document: 54-1 Page: 3 Date Filed: 04/03/2025 No. 24-40402 11, 13–15 (5th Cir. 1995) (predicate offense underlying § 922(g)(1) conviction can also be used to enhance defendant’s sentence based on his criminal- history score).

Section 3C1.2 provides for a separate two- level enhancement if “the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer.” “[T]he Guidelines do not prohibit double counting except when the particular Guideline at issue expressly does so.” United States v. Luna, 165 F.3d 316, 323 (5th Cir. 1999).

As Lavaris concedes, his argument is foreclosed by United States v. Daugherty, 264 F.3d 513 (5th Cir. 2001), in which we held that “the constitutionality of § 922(g) is not open to question,” id. at 518 (internal quotation marks and citation omitted), and United States v. Luna, 165 F.3d 316, 319-22 (5th Cir. 1999), in which we concluded that § 922(j) was similar to § 922(g) and the phrase “shipped or transported in, interstate or foreign commerce,” provided “the requisite ne…

It is well-established that “the Guidelines do not prohibit double counting except when the particular Guideline at issue expressly does so.” United States v. Luna, 165 F.3d 316, 323 (5th Cir. 1999); see also United States v. Hawkins, 69 F.3d 11, 14 (5th Cir. 1995) (“The Sentencing Guidelines do not forbid all double counting.

There is no merit to Sides’s contention that the use of a prior felony conviction both as the necessary predicate for his felon-in-possession offense and to increase his criminal history category constitutes double counting prohibited by the Sentencing Guidelines. “[T]he Guidelines do not prohibit double counting except when the particular Guideline at issue expressly does so.” United States v. Luna, 165 F.3d 316, 323 (5th Cir. 1999).

See, e.g., United States v. Peters, 403 F.3d 1263, 1277 (11th Cir.2005) (discussing the ban on felon possession of firearms, 18 U.S.C. § 922 (g)); Haney, 264 F.3d at 1168-69 (upholding the ban on possessing machineguns, 18 U.S.C. § 922 (o), as “an essential part of the federal scheme to regulate interstate commerce in dangerous weapons”); United States v. Luna, 165 F.3d 316, 321 (5th Cir.1999) (upholding the ban on possessing stolen firearms, 18 U.S.C. § 922 (j), as an essen…

United States v. Luna, 165 F.3d 316, 319 (5th Cir.1999).

United States v. Luna, 165 F.3d 316, 319 (5th Cir.1999). 23 . 18 U.S.C. § 924 (c)(l)(A)(ii). 24 .

See Kenney, 283 F.3d at 937-39 ; United States v. Luna, 165 F.3d 316, 322-24 (5th Cir.1999).

See Kenney, 283 F.3d at 937-39 ; United States v. Luna, 165 F.3d 316, 322-24 (5th Cir. 1999).

See United States v. Goff, 314 F.3d 1248, 1249-50 (10th Cir.2003); *804 United States v. Raleigh, 278 F.3d 563, 566-67 (6th Cir.), cert. denied, 535 U.S. 1119 , 122 S.Ct. 2343 , 153 L.Ed.2d 171 (2002); United States v. Shepardson, 196 F.3d 306, 311-14 (2d Cir.1999); United States v. Hawkins, 181 F.3d 911, 911-13 (8th Cir.1999); United States v. Brown, 169 F.3d 89, 93 (1st Cir.1999); United States v. Luna, 165 F.3d 316, 322-23 (5th Cir.1999); United States v. Tumipseed, 159 F…

United States v. Sykes, 12 Fed.Appx. 446, 448 (8th Cir. 2001) (unpublished decision) (citing United States v. Kocourek, 116 F.3d 481 (8th Cir. 1997)); United States v. Luna, 165 F.3d 316, 319 (5th Cir.1999).

United States v. Hawkins, 181 F.3d 911, 912-13 (8th Cir.), cert. denied, — U.S. —, 120 S.Ct. 436 , 145 L.Ed.2d 341 (1999); United States v. Brown, 169 F.3d 89, 93 (1st Cir.1999); United States v. Luna, 165 F.3d 316, 324-25 (5th Cir.), cert. denied, 526 U.S. 1126 , 119 S.Ct. 1783 , 143 L.Ed.2d 811 (1999); United States v. Turnipseed, 159 F.3d 383, 385-86 (9th Cir.1998).

In so holding, we join the Sixth Circuit, see Barton, 100 F.3d at 46 , and we reject the position taken by the majority of circuits that have considered this issue, see United States v. Laihben, 167 F.3d 1364, 1365 (11th Cir.) (concluding that post-offense convictions are included in prior felony convictions” under § 2K2.1(a)(l)), cert. denied, 527 U.S. 1029 , 119 S.Ct. 2383 , 144 L.Ed.2d 785 (1999); United States v. Luna, 165 F.3d 316, 325 (5th Cir.) (same), cert. denied, 5…

United States v. Shabani, 513 U.S. 10, 17 (1994) (citations omitted); United States v. Luna, 165 F.3d 316, 344 (5th Cir. 1999).

We review this legal issue de novo. 10 See United States v. Luna, 165 F.3d 316, 319 (5th Cir. 1999), cert. denied, ___ U.S. ___, 119 S.Ct. 1783 (1999) (reviewing constitutionality of extradition statute de novo). 11 To determine whether a treaty is required to extradite Ntakirutimana, we turn to the text of the Constitution.

All of these cases have recognized that central to the Supreme Court’s holding in Lopez was the “lack of a ‘jurisdictional element which would ensure, through a case-by-case inquiry, that the firearm possession in question affects interstate commerce.’ ” United States v. Luna, 165 F.3d 316, 320 (5th Cir.1999) (quoting Lopez, 514 U.S. at 561 , 115 S.Ct. 1624 ); see United States v. Cunningham, 161 F.3d 1343 (11th Cir.1998) (“[A] statute regulating noneconomic activity necessa…

United States v. Luna, 165 F.3d 316, 321 (5th Cir.1999) (footnoted omitted).

United States v. Luna, 165 F.3d 316, 319 (5th Cir. 1999).

United States v. Luna, 165 F.3d 316, 319 (5th Cir. 1999), cert. denied, 526 U.S. 1126 , 119 S.Ct. 1783 , 143 L.Ed.2d 811 (1999).

United States v. Luna, 165 F.3d 316, 320-21 (5th Cir. 1999).

United States v. Luna, 165 F.3d 316, 319 (5th Cir.), cert. denied, 119 S. Ct. 1783 (1999).

See United States v. Fernandez, 770 F.3d 340, 342, 344-45 (5th Cir. 2014). “[T]he Guidelines do not prohibit double counting except when the particular Guideline at issue expressly does so.” United States v. Luna, 165 F.3d 316, 323 (5th Cir. 1999); accord United States v. Jimenez-Elvirez, 862 F.3d 527, 541 (5th Cir. 2017).

Fenton , 309 at 827-28; see United States v. Luna, 165 F.3d 316, 323-24 (5th Cir.1999) (holding that enhancement could apply when firearm was obtained as a result of burglary); United States v. Kenney, 283 F.3d 934, 938-39 (8th Cir.2002) (concluding that enhancement could apply when firearm was obtained as result of theft).

See United States v. Luna, 165 F.3d 316, 323-24 (5th Cir.1999).

See United States v. Luna , 165 F.3d 316, 323 (5th Cir. 1999) (upholding the application of both the (b)(4) and (b)(5) enhancements when a convicted felon was prosecuted in federal court for possession of firearms which were obtained through a burglary); United States v. Kenney, 283 F.3d 934, 938 (8th Cir. 2002) (holding that the Commission intended to allow both the (b)(4) and (b)(5) enhancements to apply to the same conduct).

See United States v. Luna, 165 F.3d 316, 323 (5th Cir. 1999) (holding that double counting is permitted unless 1 Unpublished opinions issued in or after 1996 “are not precedent” except in limited circumstances, 5TH CIR.

See United States v. Luna, 165 F.3d 316 (5th Cir. 1999).

See United States v. Luna, 165 F.3d 316, 323-24 (5th Cir. 1999); accord United States v. Jimenez-Elvirez, 862 F.3d 527, 541 (5th Cir. 2017).

United States v. Jimenez-Elvirez, 862 F.3d 527, 541 (5th Cir. 2017) (internal quotation marks and citation omitted); accord United States v. Luna, 165 F.3d 316, 323 (5th Cir. 1999).

See United States v. Luna, 165 F.3d 316, 319 (5th Cir.1999).

See United States v. Luna, 165 F.3d 316, 319 (5th Cir. 1999). 18 . 577 F.3d 254, 260-64 (5th Cir.2009) (finding that due process was satisfied through the defendant's knowledge of his duty to register under state law; SORNA is a valid exercise under the Commerce Clause; and delegation to the Attorney General was permissible). 19 . 585 F.3d 199, 206 (5th Cir.2009).

See United States v. Luna, 165 F.3d 316, 319 (5th Cir.1999).

See United States v. Luna, 165 F.3d 316, 323 (5th Cir.1999).

See United States v. Luna, 165 F.3d 316, 319-22 (5th Cir.1999).

Fenton, 309 at 827-28; see United States v. Luna, 165 F.3d 316, 323-24 (5th Cir. 1999) (holding that enhancement could apply when firearm was obtained as a result of burglary); United States v. Kenney, 283 F.3d 934, 938-39 (8th Cir. 2002) (concluding that enhancement could apply when firearm was obtained as result of theft).

See United States v. Luna, 165 F.3d 316, 324-25 (5th Cir.1999). *975 Wilhelm argues that his sentence violates Blakely v. Washington, 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004), because it was increased on the basis that the handgun was stolen, a finding that was not made by a jury.

See United States v. Luna, 165 F.3d 316, 319-22 (5th Cir. 1999).

See United States v. Luna, 165 F. 3d 316, 319-22 (5th Cir. 1999); Does #1-7 v. Abbott, 345 F. Supp. 3d 763, 773 (N.D.

See United States v. Luna, 165 F.3d 316, 319-22 (5th Cir.1999) (analyzing the constitutionality of 18 U.S.C. § 922 both facially and as applied); United States v. Robinson, 119 F.3d 1205, 1213-15 (5th Cir.1997) (holding the Hobbs Act to be constitutional both facially and as applied to the defendant).

See United States v. Luna, 165 F.3d 316, 319-22 (5th Cir.1999) (analyzing the constitutionality of 18 U.S.C. § 922 both facially and as applied); United States v. Robinson, 119 F.3d 1205, 1213-15 (5th Cir.1997) (holding the Hobbs Act to be constitutional both facially and as applied to the defendant).