USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 95-2365
UNITED STATES OF AMERICA,
Appellee,
v.
RAMON ZORRILLA,
Defendant, Appellant.
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No. 95-2249
UNITED STATES OF AMERICA,
Appellee,
v.
MIGUEL CALDERON SALMIENTO,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Dominguez, U.S. District Judge]
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Before
Selya, Cyr and Lynch,
Circuit Judges.
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Gustavo A. Gelpi, Jr., Assistant Federal Public Defender,
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with whom Benicio Sanchez Rivera, Federal Public Defender, was on
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brief, for appellants.
Jose A. Quiles-Espinosa, Senior Litigation Counsel, with
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whom Guillermo Gil, United States Attorney, Antonio R. Bazan and
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Nelson Perez-Sosa, Assistant United States Attorneys, were on
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brief, for appellee.
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August 19, 1996
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SELYA, Circuit Judge. Defendants Ramon Zorrilla and
SELYA, Circuit Judge.
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Miguel Calderon Salmiento were charged, inter alia, with aiding
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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,
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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
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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
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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
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reliance is mislaid.
We need not tarry. Although the Lopez Court struck
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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
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economic enterprise, however broadly one might define those
terms." Id. at 1630-31. The Lopez Court nonetheless made it
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perfectly clear that, under the Commerce Clause, Congress could
regulate, inter alia, those activities which have a consequential
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effect on, or which bear a meaningful relation to, interstate
commerce. See id. at 1629-30 (citing NLRB v. Jones & Laughlin
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Steel Corp., 301 U.S. 1, 37 (1937)).
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This is such a case. Here, unlike in Lopez, the
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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-
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85 (1st Cir. 1996); United States v. Staples, 85 F.3d 461, 463,
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amended, ___ F.3d ___ (9th Cir. 1996) [1996 WL 359984]; United
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States v. Genao, 79 F.3d 1333, 1336-37 (2d Cir. 1996); United
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States v. Wacker, 72 F.3d 1453, 1475 (10th Cir. 1995), petition
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for cert. filed, No. 95-9284 (U.S. June 10, 1996); United States
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v. Brown, 72 F.3d 96, 97 (8th Cir. 1995) (per curiam), cert.
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denied, 116 S. Ct. 2581 (1996); United States v. Leshuk, 65 F.3d
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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.
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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
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Choice, Inc. v. DiStefano, 4 F.3d 26, 33 (1st Cir. 1993), it is
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not surprising to find that every court which has confronted the
appellants' argument in the post-Lopez era has upheld section
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860(a) against a Commerce Clause challenge. See, e.g., United
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States v. Tucker, ___ F.3d ___, ___ (6th Cir. 1996) [1996 WL
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413411, at *1-4]; United States v. Rogers, ___ F.3d ___, ___ (7th
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Cir. 1996) [1996 WL 399850, at *11-12]; United States v. Clark,
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67 F.3d 1154, 1165-66 (5th Cir. 1995), cert. denied, 116 S. Ct.
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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
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F.2d 569, 572 (9th Cir. 1990) (scuttling pre-Lopez Commerce
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Clause challenge to earlier version of 860(a)), cert. denied,
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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
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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.
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2To the extent that the appellants raise a developed Tenth
Amendment challenge to 21 U.S.C. 860(a), it is unavailing. See
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Lerebours, 87 F.3d at 585; United States v. Owens, 996 F.2d 59,
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60-61 (5th Cir. 1993) (per curiam).
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STATUTORY APPENDIX
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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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