UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
SALVADOR MAGLUTA, DEFENDANT-APPELLANT

11th Cir. | 2000-02-17
Nos. 98-4023, 98-4024
Before BIRCH and CARNES, Circuit Judges, and MILLS, Senior District Judge.
203 F.3d 1304 Court of Appeals for the Eleventh Circuit (2000) Negative Treatment
Cited by 7 cases
Opinion of the Court
RICHARD MILLS, Senior District Judge:

Before BIRCH and CARNES, Circuit Judges, and MILLS, Senior District Judge. RICHARD MILLS, Senior District Judge: Magluta was convicted and sentenced for illegally possessing various false identification documents — -18 U.S.C. § 1028, § 1425, § 1542, 1546, and 42 U.S.C. § 408 — and for failure to appear in violation of 18 U.S.C. § 3146. Magluta appealed his conviction in the false identification case, and the sentences received in both cases. We previously affirmed the conviction in the false identification case, but remanded for re-sentencing in both cases. See United States v. Magluta, 198 F. 3d 1265, (11th Cir.1999).

Before the opinion was issued, Magluta moved to withdraw all issues relating to the sentence he received in the false identification case, rendering portions of our opinion moot. The court allowed Magluta to withdraw the issues. Based on that ground, the government now moves for rehearing in order for the Court to vacate the portions of the opinion which relate to the discussion of the withdrawn issues. The government’s petition is granted. The Court vacates section IV. B (pages 1033 -1040 of the-slip opinion) of its previous opinion in this case. Magluta also petitions for rehearing and/or clarification with regard to this Court’s review of the district court’s application of U.S.S.G. § 2J1.6. He requests that the Court review the district court’s application under the de novo review and not the more exacting “plain error” beview. Alternatively, -he requests a clarification that he be allowed to argue on remand the subsequent amendment to the Sentencing Guidelines, Amendment 579, that clarifies the application of § 2J1.6. To the extent Magluta seeks a de novo review of the district court’s application of § 2J1.6, the petition is denied.

However, since the applicable sentencing guideline has been amended to clarify the issue after the district court imposed sentence, the district court is directed to follow the amended application note. To that extent, Magluta’s petition for clarification is granted. 1 The case is REMANDED to the district court for further proceedings consistent with this opinion.

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  • United States v. Lejarde-Rada, 319 F.3d 1288 (11th Cir. 2003)
    …s Court directly resolving it. United States v. Magluta, 198 F. 3d 1265, 1280 (11th Cir.1999) (“a district court’s error is not ‘plain’ or ‘obvious’ if there is no precedent directly resolving an issue”), vacated in unrelated part on other grounds, 203 F. 3d 1304 (11th Cir.2000). No decision of this Court or the Supreme Court requires a district court to inform the defendant during a guilty plea colloquy that he may or will be unable to appeal any refusal by the court to depart downward at sentencing. Our…
  • United States v. Svete, 521 F.3d 1302 (11th Cir. 2008)
    …1291 (11th Cir.2003) (citing United States v. Magluta, 198 F. 3d 1265, 1280 (11th Cir.1999) (“[A] district court’s error is not ‘plain’ or ‘obvious’ if there is no precedent directly resolving an issue”), vacated in unrelated part on other grounds, 203 F. 3d 1304 (11th Cir.2000)). Neither the Eleventh Circuit nor the Supreme Court has determined whether funds to ensure the viability of fraudulently induced investments may be included in a restitution order. As such, if there was error, it was not plain. Se…
  • United States v. Ellis, 419 F.3d 1189 (11th Cir. 2005)
    …e Government’s argument relies primarily on two cases. At oral argument, the Government said that United States v. Magluta, 198 F. 3d 1265 (11th Cir.1999), was its “best case.” The relevant portion of that opinion, however, was subsequently vacated, 203 F. 3d 1304 (11th Cir.2000), and vacated opinions “are officially gone. They have no legal effect whatever. They are void. [They have no] remaining force and cannot be considered to express the view of this Court.” United States v. Sigma Int’l, Inc., 300 F. 3d…

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