Case: 18-50017      Document: 00514691599         Page: 1    Date Filed: 10/22/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                    No. 18-50017                          FILED
                                  Summary Calendar                  October 22, 2018
                                                                     Lyle W. Cayce
                                                                          Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RODNEY LYLE ROBERTS,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 5:16-CR-709-1


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Rodney Lyle Roberts appeals his convictions and sentence for four counts
of making and subscribing false federal income tax returns in violation of 26
U.S.C. § 7206(1) and requests a hearing en banc.                  Roberts’s underlying
argument is that the income he failed to report on the tax returns in question
was not subject to federal income taxation. Construed liberally, see Yohey v.
Collins, 

, 225 (5th Cir. 1993), Roberts’s brief challenges the


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                   No. 18-50017

sufficiency of the evidence supporting his convictions, as well as the procedural
correctness of his sentence given that the district court’s guidelines
calculations were based upon the total tax loss.
      Roberts contends that, under Brushaber v. Union Pac. Ry. Co., 

, 10-13 (1916), the federal income tax is an excise tax that applies only to
income derived from a privilege controllable by the government and not to
income such as his, which was derived from common right contract payments
made by private, nongovernmental entities. In Parker v. Comm’r, 

, 471-72 (5th Cir. 1984), we rejected a similar challenge to the breadth of
the federal income tax system that also relied in part on Brushaber. The
Parker court stated that, “[a]t this late date, it seems incredible that we would
again be required to hold that the Constitution, as amended, empowers the
Congress to levy an income tax against any source of income, without the need
to apportion the tax equally among the states, or to classify it as an excise tax
applicable to specific categories of activities.” 

expressed disagreement with the Parker decision, one
panel of this court may not overrule the decision of another where, as here,
there is no intervening contrary or superseding decision by the Supreme Court
or this court sitting en banc. See United States v. Lipscomb, 

, 313
& n.34 (5th Cir. 2002). Given that Roberts’s underlying legal argument is
foreclosed by Parker, his related challenges to the sufficiency of the evidence
supporting his convictions and the sentencing guidelines calculations lack
merit. See United States v. Carbins, 

, 562-63 (5th Cir. 2018). The
district court’s judgment is AFFIRMED.
      Finally, Roberts has failed to establish that “en banc consideration is
necessary to secure or maintain uniformity of the court’s decisions” or that “the
proceeding involves a question of exceptional importance.” FED. R. APP. P.



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                                 No. 18-50017

35(a); see 5TH CIR. R. 35.1. Accordingly, Roberts’s petition for en banc hearing
is DENIED.




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