United States v. Evans ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50585
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK ANTHONY EVANS, also known as Mark Evans,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-96-CR-2-1
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March 18, 1998
Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Mark Anthony Evans was convicted of conspiracy to possess
with the intent to distribute cocaine. He challenges his
conviction and sentence on several grounds.
Evans first argues that the district court erred in
increasing his offense level under U.S.S.G. § 3B1.1(a) for his
role in the offense. We have reviewed the record and the briefs
on appeal and find that the district court did not clearly err in
*
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that this opinion should not be published and is not precedent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.
No. 97-50585
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assessing a four-level increase in Evans’ offense level for his
leadership role. See United States v. Puig-Infante, 19 F.3d 929,
944 (5th Cir. 1994).
Evans argues next that the district court erred in
calculating his criminal history score. The district court's
calculation of Evans’ criminal history score did not rise to the
level of plain error. See United States v. Calverley, 37 F.3d
160, 162-64 (5th Cir. 1994)(en banc).
Evans also avers that the district court erred in failing to
hold a formal evidentiary hearing regarding his claim made
pursuant to Batson v. Kentucky, 476 U.S. 79 (1986). A review of
the record reveals that Evans was granted the necessary
procedural protections in the trial court's review of his Batson
challenge. United States v. Clemons, 941 F.2d 321, 324 (5th Cir.
1991).
Lastly, Evans argues that 21 U.S.C. §§ 841(a)(1) and 846 are
unconstitutional and violate the Tenth Amendment to the
Constitution. His contentions are foreclosed by this court’s
precedent. This court has determined that §§ 841 and 846 are
valid exercises of Congress' commerce power. United States v.
Owens, 996 F.2d 59, 61 (5th Cir. 1993); see also United States v.
Lopez, 2 F.3d 1342, 1367 n.50 (5th Cir. 1993), aff’d, 115 S. Ct.
1624, 1630-31 (1995) (reaffirming that all drug trafficking,
intrastate as well as interstate, is subject to regulation under
the Commerce Clause). Sections 841 and 846 also do not violate
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the Tenth Amendment. Owens, 996 F.2d at 60-61 (if the challenged
statute is a proper exercise of congressional power under the
Commerce Clause, the statute does not violate the Tenth
Amendment).
AFFIRMED.