                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                       File Name: 08a0090p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                         X
                                   Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                          -
                                                          -
                                                          -
                                                              No. 07-3002
            v.
                                                          ,
                                                           >
 RAJAH BAYLOR,                                            -
                                 Defendant-Appellant. -
                                                         N
                          Appeal from the United States District Court
                         for the Northern District of Ohio at Cleveland.
                         No. 06-00168—James S. Gwin, District Judge.
                                  Submitted: February 7, 2008
                             Decided and Filed: February 26, 2008
              Before: SUHRHEINRICH, SUTTON, and GRIFFIN, Circuit Judges.
                                       _________________
                                           COUNSEL
ON BRIEF: James M. Campbell, Akron, Ohio, for Appellant. Duncan T. Brown, ASSISTANT
UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee.
    GRIFFIN, J., delivered the opinion of the court, in which SUTTON, J., joined.
SUHRHEINRICH, J. (p. 5), delivered a separate concurring opinion.
                                       _________________
                                           OPINION
                                       _________________
        GRIFFIN, Circuit Judge. Following a jury trial in the United States District Court for the
Northern District of Ohio, Rajah Baylor was convicted on one count of interfering with commerce
by robbery, in violation of the Hobbs Act, 18 U.S.C. § 1951(a), and one count of using a firearm in
relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Baylor was
subsequently sentenced to a term of 140 months of imprisonment. He now appeals his convictions,
arguing that the requirement of a de minimis effect on interstate commerce under the Hobbs Act is
unconstitutional in light of the Supreme Court’s decision in United States v. Morrison, 529 U.S. 598
(2000). Baylor argues further that, even assuming that the de minimis standard is appropriate, the
government failed to show that his activity had such an effect on interstate commerce. Finding each
of Baylor’s arguments to be devoid of merit, we affirm his convictions.




                                                 1
No. 07-3002           United States v. Baylor                                                   Page 2


                                                   I.
        On the evening of December 21, 2005, Little Caesar’s manager Tina Martin was in the
process of closing a Cleveland-area location of the chain pizza restaurant when a brick, thrown from
the outside, shattered the glass of the front door. A man dressed in all black, with a hooded
sweatshirt covering the top of his head and a mask covering his face, stepped forward and pointed
a .38 revolver at Martin, demanding that she open the store’s register. The man struck Martin on
the head and left with $538. Cleveland police officers later pulled over a vehicle driven by Baylor’s
accomplice, Kevin Oliver, and arrested Baylor and Oliver, finding a gun, masks, and gloves on the
floorboard of the vehicle. The police returned the suspects to the Little Caesar’s restaurant, where
Martin identified Baylor as her assailant.
        Following a two-day trial, a jury convicted Baylor of interfering with commerce by robbery
(Count One), in violation of the Hobbs Act, 18 U.S.C. § 1951(a), and of using a firearm in relation
to a crime of violence (Count Two), in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The district court
then sentenced Baylor to a term of 56 months of imprisonment on Count One and 84 months on
Count Two, to be served consecutively, for a total term of 140 months of imprisonment.
                                                  II.
        Baylor argues that in order to satisfy the jurisdictional element of the Hobbs Act, his activity
must have had more than a de minimis effect on interstate commerce. Accordingly, Baylor contends
that our prior cases interpreting the Hobbs Act, which have held that a de minimis effect on interstate
commerce is sufficient to meet constitutional requirements, should be re-examined in light of the
Supreme Court’s decision in Morrison. In Morrison, the Court invalidated the civil remedy
provision of the Violence Against Women Act, holding that it did not regulate activity that
substantially affected interstate commerce. 529 U.S. at 613. Five years earlier, in United States v.
Lopez, 514 U.S. 549 (1995), the Court held that Congress’s enactment of the Gun-Free School Zones
Act of 1990 exceeded the scope of its authority under the Commerce Clause, in that “possession of
a gun in a local school zone is in no sense an economic activity that might, through repetition
elsewhere, substantially affect any sort of interstate commerce.” Lopez, 514 U.S. at 567. See also
United States v. Dupree, 323 F.3d 480, 485 n.1 (6th Cir. 2003) (summarizing the holdings of Lopez
and Morrison).
       We review Baylor’s argument de novo because it raises a question of law. United States v.
Smith, 182 F.3d 452, 455 (6th Cir. 1999).
         The Hobbs Act provides that “[w]hoever in any way or degree obstructs, delays, or affects
commerce or the movement of any article or commodity in commerce, by robbery or extortion . .
. shall be fined . . . or imprisoned . . . .” 18 U.S.C. § 1951(a). In Smith, we reaffirmed our pre-Lopez
holdings that the government must prove only that a robbery had a de minimis effect on interstate
commerce in order to satisfy the jurisdictional requirement of the Hobbs Act. Surveying the weight
of authority from our sister circuits, we observed that:
       All of the other circuits that have considered the issue have held that the de minimis
       standard for Hobbs Act charges survived Lopez, although the Fifth Circuit has
       recently granted a rehearing on this issue. See United States v. Harrington, 108 F.3d
       1460, 1465 (D.C. Cir. 1997); United States v. Alfonso, 143 F.3d 772, 775 (2d Cir.
       1998); United States v. Farrish, 122 F.3d 146, 147 (2d Cir. 1997); United States v.
       Hickman, 151 F.3d 446, 456 (5th Cir. 1998), reh’g granted and op. vacated, 165
       F.3d 1020 (5th Cir. 1999), [affirmed by 179 F.3d 230 (5th Cir. 1999) (en banc)];
       United States v. Miles, 122 F.3d 235 (5th Cir. 1997); United States v. Robinson, 119
       F.3d 1205 (5th Cir. 1997), cert. denied, 522 U.S. 1139 (1998); United States v.
No. 07-3002           United States v. Baylor                                                      Page 3


       Nelson, 137 F.3d 1094, 1102 (9th Cir. 1998); United States v. Woodruff, 122 F.3d
       1185 (9th Cir. 1997); United States v. Beydler, 120 F.3d 985, 987 (9th Cir. 1997);
       United States v. Nguyen, 155 F.3d 1219, 1224 (10th Cir. 1998); United States v.
       Bruce, 78 F.3d 1506, 1509 (10th Cir. 1996); United States v. Bolton, 68 F.3d 396,
       398-99 (10th Cir. 1995); United States v. Paredes, 139 F.3d 840 (11th Cir. 1998)
       (Wellford, J., sitting by designation); United States v. Castleberry, 116 F.3d 1384,
       1387 (11th Cir. 1997).
Smith, 182 F.3d at 456. We found persuasive the Tenth Circuit’s reasoning in Bolton that in Lopez,
the Supreme Court “recognized that if a statute regulates an activity which, through repetition, in
aggregate has a substantial effect on interstate commerce, the de minimis character of individual
instances arising under the statute is of no consequence,” id. (quoting Bolton, 68 F.3d at 399)
(internal citation and quotation omitted), and held that the “de minimis standard for the interstate
commerce effects of individual Hobbs Act violations survived Lopez.” Smith, 182 F.3d at 456.
        Four years later, in Dupree, we addressed the same argument that Baylor now raises – that
Morrison requires the government to prove more than a de minimis effect on interstate commerce
under the Hobbs Act. Dupree, 323 F.3d at 484-85. We rejected that claim, reaffirming our prior
holding in Smith that “the traditional de minimus standard for Hobbs Act violations” was appropriate
following Lopez and Morrison, so that “‘if a statute regulates an activity which, through repetition,
in [the] aggregate has a substantial effect on interstate commerce, the de minimus character of
individual instances arising under the statute is of no consequence.’” Dupree, 323 F.3d at 485
(quoting Smith, 182 F.3d at 456).
       Most recently, we considered the de minimis standard’s applicability to the Hobbs Act in
United States v. Davis, 473 F.3d 680, 681 (6th Cir. 2007). Specifically, in Davis, we rejected the
defendant’s argument that the de minimis standard is no longer applicable to the Hobbs Act after the
Supreme Court’s decision in Gonzales v. Raich, 545 U.S. 1 (2005). Davis, 473 F.3d at 682. As we
explained:
       There is no reading of Raich that supports Davis’s contention that this Court cannot
       continue to apply the de minimis standard to Hobbs Act cases, where, as here, the
       extortion is directed at a business. The Hobbs Act, like the [Controlled Substances
       Act at issue in Raich], regulates activities, which, in the aggregate, have a substantial
       effect on interstate commerce. See United States v. Bolton, 68 F.3d 396, 399 (10th
       Cir. 1995) (“In enacting the Hobbs Act, Congress determined that robbery and
       extortion are activities which through repetition may have substantial detrimental
       effects on interstate commerce.”) (citing H.R. Rep. No. 238, 79th Cong., 1st Sess.,
       (1945), reprinted in 1946 U.S.C.C.A.N. 1360, 1370); see also [United States v.]
       Wang, 222 F.3d [234] at 238 [(6th Cir. 2000)] (“Lopez did not require realignment
       of the Hobbs Act’s jurisdictional nexus because individual instances arising under
       the statute could, through repetition, have a substantial effect on interstate
       commerce.”) (citing Smith, 182 F.3d at 456). Therefore, Raich permits, rather than
       restricts, the continued application of the de minimis standard where the Hobbs Act
       offense is directed at a business.
Davis, 473 F.3d at 683. We are bound by our prior published opinions in Smith, Dupree, and Davis,
and must reject Baylor’s challenge to the de minimis standard. See Sixth Cir. R. 206(c); United
States v. Humphrey, 287 F.3d 422, 452 (6th Cir. 2002).
        Finally, we note that since Smith, which was published prior to Morrison, our sister circuits
have continued to apply the de minimis standard to the interstate commerce nexus under the Hobbs
Act in the wake of Morrison. See United States v. Griffin, 493 F.3d 856, 861 (7th Cir. 2007); United
No. 07-3002           United States v. Baylor                                                  Page 4


States v. Nascimento, 491 F.3d 25, 37 n.3 (1st Cir. 2007); United States v. Boyd, 480 F.3d 1178,
1179 (9th Cir. 2007); United States v. Davila, 461 F.3d 298, 306-07 (2d Cir. 2006); United States
v. Foster, 443 F.3d 978, 983 n.3 (8th Cir. 2006); United States v. Urban, 404 F.3d 754, 766 (3d Cir.
2005); United States v. McCormack, 371 F.3d 22, 28 (1st Cir. 2004), vacated on other grounds, 543
U.S. 1098 (2005); United States v. Malone, 222 F.3d 1286, 1294-95 (10th Cir. 2000). It appears that
the Fifth Circuit is divided as to whether the aggregation principle may be applied to allow Hobbs
Act convictions where the impact on interstate commerce of individual robberies is minimal. See
United States v. McFarland, 311 F.3d 376, 409-10 (5th Cir. 2002) (en banc) (dividing equally on
aggregation principle, and therefore affirming defendant’s conviction).
                                                 III.
        Although he does not identify this claim in his brief’s “Issues Presented For Review,” Baylor
also argues that the government did not offer sufficient evidence at trial to satisfy the de minimis
standard. Federal Rule of Appellate Procedure 28(a) requires the appellant’s brief to contain, inter
alia, “a statement of the issues presented for review . . . .” See also, e.g., United States v. Winkle,
477 F.3d 407, 416 n.4 (6th Cir. 2007); Marks v. Newcourt Credit Group, Inc., 342 F.3d 444, 462
(6th Cir. 2003). Baylor’s brief on appeal identified only a single issue for review: “Whether the de
minimis threshold is constitutionally sufficient to fulfill the jurisdictional element of the Hobbs
Act?”
        Assuming, without deciding, that Baylor has raised this issue properly for our review, his
argument is plainly without merit. At trial, the government offered the testimony of Joe Mestrovich,
the senior director of logistics and transportation services for Blue Line Food Service Distribution
(“Blue Line”). Mestrovich testified that Blue Line distributes food products for Little Caesar’s
restaurants, including the Cleveland location that was robbed by Baylor. He testified further that
the food products (cheeses, flours, sauces) traveled through interstate commerce to the Blue Line
warehouse in Columbus, Ohio, before they were shipped to the Little Caesar’s restaurant that Baylor
robbed. For example, Mestrovich stated that the flour used by the Cleveland Little Caesar’s
restaurant originated in Minnesota, the sauce from California, and the cheese from Wisconsin. This
testimony alone is sufficient to satisfy the de minimis standard. See United States v. Watkins, 509
F.3d 277, 281 (6th Cir. 2007) (holding that de minimis standard is satisfied where defendant robbed
check-cashing business that drew checks on nationwide banks); Davis, 473 F.3d at 684 (finding de
minimis standard satisfied by extortion of a bar that purchased alcohol that had traveled in interstate
commerce); United States v. Brown, 959 F.2d 63, 68 (6th Cir. 1992) (holding that de minimis
standard was satisfied where defendant attempted to rob a bar that purchased alcohol that had
traveled in interstate commerce).
                                                 IV.
       For the reasons stated, we affirm Baylor’s convictions.
No. 07-3002              United States v. Baylor                                                           Page 5


                                           ____________________
                                             CONCURRENCE
                                           ____________________
       SUHRHEINRICH, Circuit Judge, concurring. I concur because the majority’s decision is
consistent with the law of this Circuit and most other circuits, and is thus correct. However, I think
those decisions are inconsistent with the recent Supreme Court precedent, and more fundamentally,
the doctrine of federalism.
        In United States v. Lopez, the Supreme Court held that to fall within the scope of the
Commerce Clause, the regulated activity must substantially affect interstate commerce. United
States v. Lopez, 514 U.S. 549, 559 (1995) (“Where economic activity substantially affects interstate
commerce, legislation regulating that activity will be sustained.”). In United States v. Morrison, the
Supreme Court expressly rejected an aggregation theory when regulating non economic activity.
        The regulation and punishment of intrastate violence that is not directed at the
        instrumentalities, channels, or goods involved in interstate commerce has always
        been the province of the States. Indeed, we can think of no better example of the
        police power, which the Founders denied the National Government and reposed in
        the States, than the suppression of violent crime and vindication of its victims.
United States v. Morrison, 529 U.S. 598, 617 (2000) (citations omitted). By continuing to allow a
de minimis standard for individual violations of the Hobbs Act, we are essentially nullifying the
“substantial effect” test of Lopez and Morrison. See United States v. Dupree, 323 F.3d 480, 485 (6th
Cir. 2003) (holding that “the traditional de minimis standard for Hobbs Act violations survived
Lopez”).1
         The effect of our Court’s rulings is that every local robbery of a business in the United States
is a federal crime. I acknowledge that the Supreme Court has held that Congress intended to include
within the scope of the Hobbs Act conduct that was already punishable under the state robbery and
extortion statutes. See United States v. Culbert, 435 U.S. 371, 379-80 (1978). However, I cannot
believe that this is what the Founding Fathers intended. Moreover, I have harbored the hope that
the Supreme Court in Lopez was seeking to restore a proper state-federal balance that gives actual
meaning to the term federalism. I also hope that the Supreme Court will consider the issue of
whether the de minimis test survives Lopez and Morrison.




        1
           Notably, United States v. Dupree never directly addressed the holding from Morrison, but rather found it
sufficient to rely on United States v. Smith, 182 F.3d 452 (6th Cir. 1999), which was decided after Lopez but before
Morrison.
