United States v. Corey Brown ( 1995 )

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No. 95-2456
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Corey D. Brown, * [PUBLISHED]
*
Appellant. *
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Submitted: December 18, 1995
Filed: December 28, 1995
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Before WOLLMAN, MAGILL, and HANSEN, Circuit Judges.
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PER CURIAM.
Corey D. Brown was convicted of possession of cocaine base (crack)
with intent to distribute and use of a firearm during a drug trafficking
offense, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 924(c)(1).
He appeals his conviction and the 181-month sentence imposed by the
district court.1 We affirm.
Brown argues that Congress has no power under the Commerce Clause,
U.S. Const. art. I, § 8, cl. 3, to criminalize the intrastate use or
possession of weapons, and that section 924(c) is thus unconstitutional as
applied to the facts of his case. Brown relies on the Supreme Court's
recent decision in United States v. Lopez, 115 S. Ct. 1624 (1995)
(concluding Congress exceeded its Commerce Clause authority in enacting
Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q)). Reviewing this
constitutional challenge
1
The Honorable Catherine D. Perry, United States District
Judge for the Eastern District of Missouri.
de novo, United States v. Johnson, 56 F.3d 947, 953 (8th Cir. 1995), we
reject Brown's argument.
Section 924(c)(1) mandates an additional term of imprisonment for one
who uses or carries a firearm "during and in relation to any crime of
violence or drug trafficking crime . . . for which he may be prosecuted in
a court of the United States." As defined in section 924(c)(2), a "drug
trafficking crime" includes any felony punishable under the Controlled
Substances Act, 21 U.S.C. § 801, et seq. Prior to Lopez, at least two
appellate courts held that Congress validly exercised its Commerce Clause
authority in enacting section 924(c)(1). United States v. Owens, 996 F.2d
59, 61 (5th Cir. 1993) (per curiam) (10th Amendment challenge); United
States v. Dumas, 934 F.2d 1387, 1390 (6th Cir. 1990) (same), cert. denied,
502 U.S. 1006 (1991); see also United States v. McMillian, 535 F.2d 1035,
1037 n.1 (8th Cir. 1976) (rejecting argument that § 924(c) not within scope
of Congress's power to regulate interstate commerce), cert. denied, 434
U.S. 1074 (1978). In Lopez, the Supreme Court distilled its Commerce
Clause jurisprudence and identified three categories of activity Congress
may regulate under the Commerce Clause: (1) the use of the channels of
interstate commerce; (2) the instrumentalities of interstate commerce, or
persons or things in interstate commerce; and (3) those activities bearing
a substantial relation to, or substantially affecting, interstate commerce.
Lopez, 115 S. Ct. at 1626-30; see United States v. Robinson, 62 F.3d 234,
236 (8th Cir. 1995) (discussing Lopez).
Prosecution under section 924(c)(1) does not occur in a vacuum.
Rather, it is triggered when one "uses or carries"2 a
2
Brown has not challenged the facts underlying his section
924(c)(1) conviction. Thus, we need not consider the impact of
the Supreme Court's recent decision in Bailey v. United States,
Nos. 94-7448 & 94-7492, 1995 WL 712269 (U.S. Dec. 6, 1995)
(defining "use" prong of section 924(c)(1)).
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firearm during a drug trafficking offense or violent crime for which the
individual may be independently prosecuted. We note that intrastate drug
activity affects interstate commerce, 21 U.S.C. § 801; that Congress may
regulate both interstate and intrastate drug trafficking under the Commerce
Clause, United States v. Curtis, 965 F.2d 610, 616 (8th Cir. 1992); and
that section 841(a)(1) is a valid exercise of Congress's Commerce Clause
power, United States v. Leshuk, 65 F.3d 1105, 1111-12 (4th Cir. 1995)
(rejecting Lopez Commerce Clause challenge to section 841(a)(1)). Because
Brown's section 924(c)(1) conviction is based on his section 841(a)(1) drug
trafficking offense, which involved "an activity that substantially
affect[ed] interstate commerce," we reject Brown's Lopez challenge. See
Lopez, 115 S. Ct. at 1630; cf. United States v. Bolton, 68 F.3d 396, 398-99
& n.2. (10th Cir. 1995) (rejecting Lopez-based Commerce Clause challenges
to Hobbs Act, 18 U.S.C. § 1951, and defendant's section 924(c)(1)
convictions).
Brown also challenges the constitutionality of the 100-to-1 ratio
between penalties for crack cocaine and powder cocaine, set forth in 21
U.S.C. § 841(b), arguing that there is no scientific difference between the
two substances. In support of this contention, he relies on evidence
originally presented in United States v. Davis, 864 F. Supp. 1303 (N.D. Ga.
1994), appeal pending, (No. 95-8057 11th Cir.). He maintains that section
841(b) is thus void for vagueness, or alternatively, that its application
is barred by the rule of lenity. Brown also argues that the penalty
provisions of section 841(b) violate his equal protection and due process
rights. These arguments are foreclosed by our recent decisions in United
States v. Jackson, 67 F.3d 1359, 1367 (8th Cir. 1995), and United States
v. Jackson, 64 F.3d 1213, 1219-20 (8th Cir. 1995).
The judgment is affirmed.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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