UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
"LNU" OMAR AKA FERNANDEZ OMAR, DEFENDANT-APPELLANT

11th Cir. | 1994-07-06
No. 91-5414
Before EDMONDSON and CARNES, Circuit Judges, and HILL, Senior Circuit Judge.
24 F.3d 1356 Court of Appeals for the Eleventh Circuit (1994) Positive Treatment
Cited by 6 cases
Opinion of the Court
PER CURIAM:

PER CURIAM: Upon consideration of the Appellee’s petition for rehearing in the nature of a request for modification, that petition is granted, and the opinion filed in this case on March 23, 1994, and published at 16 F. 3d 1168, is modified in one respect. The overlapping paragraph on 16 F. 3d at 1171-72, and the two footnotes accompanying it, are deleted, and in their place the following paragraph is substituted: Considering the elements of the offense of bank robbery and the specific offense characteristics of § 2B3.1, we conclude that the fact that the crime in this case involves four bank robbers, and the fact that three of the robbers were armed and went into the bank, one with an Uzi machine pistol, are aggravating factors present to a degree not adequately considered by the Sentencing Commission in formulating the guidelines. In other words, these particular facts take this case outside the heartland of bank robberies and justify an upward departure. See 18 U.S.C. § 3553(b). Judge HILL adheres to his dissent. 16 F. 3d at 1172-73.

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Cited By

  • United States v. Wilda M. Thomas, 62 F.3d 1332 (11th Cir. 1995)
    …as a basis for departure. United States v. Valle, 929 F. 2d 629, 631 (11th Cir.), cert. denied, 502 U.S. 950, 112 S.Ct. 401, 116 L.Ed.2d 350 (1991); see also United States v. Lnu, 16 F. 3d 1168, 1169 (11th Cir.1994), modified, United States v. Omar, 24 F. 3d 1356 (11th Cir.1994). The Thomases’ contention that the district court erred in determining that consequential damages are not adequately considered under the Sentencing Guidelines finds strong support in one of our recent decisions. United States v. W…
  • United States v. Bourne, 130 F.3d 1444 (11th Cir. 1997)
    …] of a firearm or dangerous weapon, should not include an independent increase, whether by departure or otherwise, for an express threat of death.” United States v. LNU, 16 F. 3d 1168, 1171 (11th Cir.1994), modified sub nom., United States v. Omar, 24 F. 3d 1356 (11th Cir.1994). The Government concedes that LNU controls and has waived its argument that Bourne failed to preserve this issue on appeal. Since a threat of death is implicit when a dangerous weapon is displayed, the district court erred when it…
  • United States v. Wooden, 169 F.3d 674 (11th Cir. 1999)
    …his criminal histoiy category of VI, yields a sentence range of 110-137 months rather than the 120-150 month range used based on adjusted offense level 26. . In United States v. Omar, 16 F. 3d 1168, 1170 (11th Cir.) (per curiam), modified on reh'g, 24 F. 3d 1356 (11th Cir.1994), we noted the application of the then-four-level increase for "otherwise us[ing]” a firearm in determining the sentence of a defendant who had pointed a gun at an assistant manager’s head during a bank robbery. However, the propriet…

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