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USCA1 Opinion
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
_________________________
No. 95-2365
UNITED STATES OF AMERICA,
Appellee,
v.
RAMON ZORRILLA,
Defendant, Appellant.
_________________________
No. 95-2249
UNITED STATES OF AMERICA,
Appellee,
v.
MIGUEL CALDERON SALMIENTO,
Defendant, Appellant.
_________________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Dominguez, U.S. District Judge] ___________________
_________________________
Before
Selya, Cyr and Lynch,
Circuit Judges. ______________
_________________________
Gustavo A. Gelpi, Jr., Assistant Federal Public Defender, ______________________
with whom Benicio Sanchez Rivera, Federal Public Defender, was on ______________________
brief, for appellants.
Jose A. Quiles-Espinosa, Senior Litigation Counsel, with ________________________
whom Guillermo Gil, United States Attorney, Antonio R. Bazan and _____________ ________________
Nelson Perez-Sosa, Assistant United States Attorneys, were on __________________
brief, for appellee.
_________________________
August 19, 1996
_________________________
SELYA, Circuit Judge. Defendants Ramon Zorrilla and SELYA, Circuit Judge. ______________
Miguel Calderon Salmiento were charged, inter alia, with aiding _____ ____
and abetting each other in the intended distribution of a
controlled substance (approximately two kilograms of cocaine)
within 1,000 feet of a school. See 21 U.S.C. 841(a)(1) & ___
(b)(1)(B), 860(a); 18 U.S.C. 2.1 They challenged the
constitutionality of section 860(a), but the district court ruled
against them. See United States v. Salmiento, 898 F. Supp. 45, ___ _____________ _________
46-48 (D.P.R. 1996). They then pled guilty to the charge,
reserving the right to revisit the constitutional question on
appeal. The lower court sentenced them under 21 U.S.C. 841(b),
making use of the enhancement directed by 21 U.S.C. 860(a).
These proceedings followed.
We review the constitutionality of an Act of Congress
de novo. See United States v. Gifford, 17 F.3d 462, 472 (1st ___ ______________ _______
Cir. 1994). The statute that the appellants challenge, 21 U.S.C.
860(a), by its terms applies to some but not all offenders
who manufacture or distribute, or who possess with intent to
manufacture or distribute, controlled substances, thereby
violating 21 U.S.C. 841(a)(1). The selection process under
section 860(a) operates by plucking from the mine-run of
miscreants who violate section 841(a)(1) those whose crimes are
committed within 1,000 feet of a school and essentially doubling
____________________
1We reproduce the relevant text of sections 860(a),
841(a)(1), and 841(b)(1)(B) in the appendix. 18 U.S.C. 2 is,
of course, the familiar statute that criminalizes aiding and
abetting, and we see no need to reprint it.
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the maximum available punishment. Thus, section 860(a) is a
sentence-enhancer, pure and simple.
The defendants contend that this sentence-enhancement
scheme runs afoul of the Commerce Clause, U.S. Const. art. I,
8, cl. 3, because Congress lacked power under the Clause to
legislate in this realm. They pin their hopes on the Court's
opinion in United States v. Lopez, 115 S. Ct. 1624 (1995). Their _____________ _____
reliance is mislaid.
We need not tarry. Although the Lopez Court struck _____
down the Gun-Free School Zones Act, 18 U.S.C. 922(q)
(criminalizing the possession of firearms within a school zone),
on the ground that the prohibited conduct was not of a type that
substantially affects interstate commerce, 115 S. Ct. at 1631, it
did so because the underlying conduct firearms possession
simpliciter "has nothing to do with ``commerce' or any sort of ___________
economic enterprise, however broadly one might define those
terms." Id. at 1630-31. The Lopez Court nonetheless made it ___ _____
perfectly clear that, under the Commerce Clause, Congress could
regulate, inter alia, those activities which have a consequential _____ ____
effect on, or which bear a meaningful relation to, interstate
commerce. See id. at 1629-30 (citing NLRB v. Jones & Laughlin ___ ___ ____ _________________
Steel Corp., 301 U.S. 1, 37 (1937)). ___________
This is such a case. Here, unlike in Lopez, the _____
statutory scheme has an unmistakable commercial nexus and the
underlying conduct possesses a significant economic dimension.
Many courts, including this court, have held that drug
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trafficking is precisely the kind of economic enterprise that
substantially affects interstate commerce and that, therefore,
comes within Congress's regulatory power under the Commerce
Clause. See, e.g., United States v. Lerebours, 87 F.3d 582, 584- ___ ____ _____________ _________
85 (1st Cir. 1996); United States v. Staples, 85 F.3d 461, 463, _____________ _______
amended, ___ F.3d ___ (9th Cir. 1996) [1996 WL 359984]; United _______ ______
States v. Genao, 79 F.3d 1333, 1336-37 (2d Cir. 1996); United ______ _____ ______
States v. Wacker, 72 F.3d 1453, 1475 (10th Cir. 1995), petition ______ ______ ________
for cert. filed, No. 95-9284 (U.S. June 10, 1996); United States ________________ _____________
v. Brown, 72 F.3d 96, 97 (8th Cir. 1995) (per curiam), cert. _____ _____
denied, 116 S. Ct. 2581 (1996); United States v. Leshuk, 65 F.3d ______ ______________ ______
1105, 1112 (4th Cir. 1995). Indeed, Congress made particularized
findings to this effect when it enacted the full panoply of
criminal laws anent controlled substances. See 21 U.S.C. 801. ___
Given both this background and the truism "that courts,
when passing upon the constitutionality of a statutory provision,
must view it in the context of the whole statutory scheme," Vote ____
Choice, Inc. v. DiStefano, 4 F.3d 26, 33 (1st Cir. 1993), it is ____________ _________
not surprising to find that every court which has confronted the
appellants' argument in the post-Lopez era has upheld section _____
860(a) against a Commerce Clause challenge. See, e.g., United ___ ____ ______
States v. Tucker, ___ F.3d ___, ___ (6th Cir. 1996) [1996 WL ______ ______
413411, at *1-4]; United States v. Rogers, ___ F.3d ___, ___ (7th _____________ ______
Cir. 1996) [1996 WL 399850, at *11-12]; United States v. Clark, _____________ _____
67 F.3d 1154, 1165-66 (5th Cir. 1995), cert. denied, 116 S. Ct. _____ ______
1432 (1996); United States v. Garcia-Salazar, 891 F. Supp. 568, ______________ ______________
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569-72 (D. Kan. 1995); see also United States v. McDougherty, 920 ___ ____ _____________ ___________
F.2d 569, 572 (9th Cir. 1990) (scuttling pre-Lopez Commerce _____
Clause challenge to earlier version of 860(a)), cert. denied, _____ ______
499 U.S. 911 (1991). Because we do not doubt that Congress has
the authority under the Commerce Clause to regulate an activity
as clearly commercial in character as drug trafficking, and
because the particular statute that the appellants challenge is
nothing more than a sentence-enhancer applicable to certain
proscribed drug trafficking activities, we hold that 21 U.S.C.
860(a) does not trespass into constitutionally forbidden terrain.
See generally Lopez, 115 S. Ct. at 1633 (hypothesizing that a law ___ _________ _____
enacted by virtue of Congress's "authority under the Commerce
Clause to regulate numerous commercial activities that
substantially affect interstate commerce and also affect the
educational process" would survive a constitutional attack).
We need go no further.2 The challenged statute, 21
U.S.C. 860(a), passes constitutional muster under the Commerce
Clause. Hence, the defendants' convictions and sentences must
stand.
Affirmed. Affirmed. ________
____________________
2To the extent that the appellants raise a developed Tenth
Amendment challenge to 21 U.S.C. 860(a), it is unavailing. See ___
Lerebours, 87 F.3d at 585; United States v. Owens, 996 F.2d 59, _________ _____________ _____
60-61 (5th Cir. 1993) (per curiam).
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STATUTORY APPENDIX __________________
The sentence-enhancing statute, 21 U.S.C. 860(a),
provides in relevant part (with certain exceptions not applicable
here) that:
Any person who violates section
841(a)(1) . . . of this title by
distributing, possessing with intent to
distribute, or manufacturing a controlled
substance in or on, or within one thousand
feet of, the real property comprising a
public or private elementary, vocational, or
secondary school or a public or private
college, junior college, or university, or a
playground, or housing facility owned by a
public housing authority, or within 100 feet
of a public or private youth center, public
swimming pool, or video arcade facility, is .
. . subject to (1) twice the maximum
punishment authorized by section 841(b) of
this title; and (2) at least twice any term
of supervised release authorized by section
841(b) of this title for a first offense. A
fine up to twice that authorized by section
841(b) of this title may be imposed in
addition to any term of imprisonment
authorized by this subsection . . . .
Section 860(a) cross-references 21 U.S.C. 841(a)(1), which
provides in relevant part:
Except as [otherwise authorized by law],
it shall be unlawful for any person knowingly
or intentionally
(1) to manufacture, distribute, or
dispense, or possess with intent to
manufacture, distribute, or
dispense, a controlled substance .
. . .
Section 860(a) also cross-references 21 U.S.C. 841(b)(1), which
provides in relevant part:
Except as otherwise provided in section
859, 860, or 861 of this title, any person
who violates subsection (a) of this section
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shall be sentenced as follows:
* * *
(B) In the case of violation of
subsection (a) of this section
involving
* * *
(ii) 500 grams or more of a mixture
or substance containing a
detectable amount of
* * *
(II) cocaine, its salts, optical
and geometric isomers, and salts of
isomers;
* * *
such person shall be sentenced to a term
of imprisonment which may not be less than 5
years and not more than 40 years . . . , a
fine not to exceed the greater of that
authorized in accordance with the provisions
of Title 18, or $2,000,000 if the defendant
is an individual . . . .
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Document Info
Docket Number： 95-2365
Filed Date： 8/19/1996
Precedential Status： Precedential
Modified Date： 9/21/2015