United States of America, Plaintiff-appellee, v. Derrick Cornelius Gayle, Claude Bertram Hester, Defendants-appellants, 967 F.2d 488 (11th Cir. 1992)

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US Court of Appeals for the Eleventh Circuit - 967 F.2d 488 (11th Cir. 1992)

July 29, 1992

L. Scott Johnson, Jr., Montgomery, Ala., for Gayle.

Thomas M. Goggans, Montgomery, Ala., for Hester.

Louis V. Franklin, Sr., U.S. Atty's Office, Montgomery, Ala., for U.S.

Appeals from the United States District Court for the Middle District of Alabama; Joel F. Dubina, Judge.

Prior Report: 967 F.2d 483.

Before KRAVITCH, Circuit Judge, MORGAN and JOHNSON* , Senior Circuit Judges.


The En Banc Court for the Eleventh Circuit Court of Appeals upheld the indictments of defendants Gayle and Hester as sufficient under 18 U.S.C. § 912 and remanded this case to the original panel for resolution of the remaining issues not addressed in this panel's initial opinion.1  We find that the remaining issues are either moot, because both defendants have served their full terms, or do not merit further discussion. We therefore affirm the section 912 convictions and the district court's imposition of sentences.


See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit


The remaining issues argued in the original appeal were:

(1) Whether the district court erred in finding that appellants' impersonation was for the purpose of conducting an unlawful detention?

(2) Whether a prior conviction which results in the imposition of a fine, qualifies as a "prior sentence" under the United States Sentencing Guidelines?

(3) Whether the district court displayed an unawareness that a downward departure was an option at sentencing?

(4) Whether U.S.S.G. § 3D1.5 was applicable to the calculation of defendant's sentence?

(5) Whether the defendant's Fifth Amendment right against double jeopardy was violated?

(6) Whether the evidence was sufficient to sustain the jury's verdict of guilty as to count one of the indictment?

(7) Whether defendant Gayle should have been considered a minimal participant?