                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-18-1996

United States v. Orozco
Precedential or Non-Precedential:

Docket 95-1572




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Recommended Citation
"United States v. Orozco" (1996). 1996 Decisions. Paper 57.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/57


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                THE UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                            __________

                           No. 95-1572
                            __________

                     UNITED STATES OF AMERICA

                               v.

                          ZULMES OROZCO,

                                   Appellant
                            __________

            Submitted Under Third Circuit LAR 34.1(a)
                         January 30, 1996
                            __________

            Before: GREENBERG, NYGAARD, Circuit Judges
                  and LAY, Senior Circuit Judge*

                (Opinion filed: October 18, 1996)
                            __________

                                           Wendy A. Kelly
                                           Assistant U.S. Attorney
                                           Office of the United
                                           States Attorney
                                           615 Chestnut Street
                                           Philadelphia, Pa. 19106

                                           Attorney for the Appellee

                                           Mark R. Lippman, Esq.
                                           8070 La Jolla Shores Dr.
                                           Suite 437
                                           La Jolla, Ca. 92037

                                           Attorney for Appellant
                           _________

*Hon. Donald P. Lay, Senior Circuit Judge of the United States
Court of Appeals for the Eight Circuit sitting my designation.
                            __________

                       OPINION OF THE COURT
                            __________
NYGAARD, Circuit Judge:
     Defendant-appellant, Zulmes Orozco challenges the
constitutionality of the Drug-Free School Zones Act, 21 U.S. C. §
845(a). Orozco was convicted of distributing 1080 grams of
cocaine within one thousand feet of a school. He argues on
appeal that Congress exceeded its authority under the Commerce
Clause by enacting the Drug-Free School Zones Act.
                                I.
     Appellant sold approximately 1080 grams of cocaine to a Drug
Enforcement informant within seven hundred feet of the James
Howell Public Elementary School in Philadelphia. A federal grand
jury returned a three count indictment charging appellant with
separate violations of 21 U.S.C. §§ 841(a)(1), 845(a) and 843(b).
Orozco pleaded guilty to the charge under § 841(a)(1), but
disputed the location of the drug sale and the charge under §
845(a). Appellant then requested new counsel. L. Felipe
Restrepo, Esq. was appointed to represent the Appellant. Orozco
requested a bench trial on Count Two of the indictment.
     Both the Government and the defense stipulated to the facts
of the underlying distribution charge of Count One, which was
also the subject of Count Two. The sole issue before the
district court was the location of the drug transactions. The
district court found Orozco guilty of selling drugs within one
thousand feet of a school and sentenced him to sixty months
incarceration and eight years of supervised release. Orozco
timely appealed.
     Orozco's trial counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S. Ct. 1398 (1967). Counsel
asserted that there were no non-frivolous issues for appeal and
requested leave to withdraw. Appellant, acting pro se, filed a
carefully crafted brief in which he questioned whether, in light
of the Supreme Court's decision in United States v. Lopez, ---
U.S. ---, 115 S. Ct. 1624 (1995), the district court had imposed
a legal sentence. We granted trial counsel's request to withdraw
from the case. We agreed, however, that Orozco's pro se brief
had raised an issue for this appeal and appointed new appellate
counsel to examine the implications of the Supreme Court's
decision in Lopez.
                               II.
     Orozco argues that 21 U.S.C. § 860(a) is an unconstitutional
exercise of Congress' power under the Commerce Clause. He relies
on the Supreme Court's decision in Lopez to support his argument.
We are not persuaded.
     The Constitution gives Congress power to "regulate Commerce
with foreign Nations, and among the several states and with the
Indian Tribes." U.S. Const. Art. I, § 8, cl. 3. In Lopez, the
Supreme Court examined the constitutionality of the Gun-Free
School Zones Act, 18 U.S.C. § 922(q). This Act prohibited
possession of a firearm within one-thousand feet of a school. A
five-member majority of the Court struck down the statute as an
unconstitutional exercise of Congress' commerce power. Lopez,
115 S.Ct. at 1630-34. The Court reviewed the three areas in
which Congress could exercise its commerce power and not run
afoul of the Constitution. First, Congress "may regulate the use
of the channels of interstate commerce." Id. at 1629. Second,
Congress may "regulate and protect instrumentalities of
interstate commerce or persons or things in interstate commence
even though the threat may only come from intrastate activities."
Id. Third, Congress may "regulate those activities having a
substantial relation to interstate commerce." Id. (citations
omitted). The Court held that Congress could enact the Gun-Free
School Zones Act only if the Act regulated an activity which
substantially affected interstate commerce. Lopez, 115 S. Ct. at
1630. In determining that the Gun-Free School Zones Act was
unconstitutional, the Court held that the Act
          [i]s a criminal statute that has nothing to do with
          "commerce" or any sort of economic enterprise, however
          broadly one might define those terms. Section 922(q)
          is not an essential part of a larger regulatory scheme
          that could be undercut unless the intrastate activity
          were regulated. It cannot, therefore, be sustained
          under our cases upholding regulation of activities that
          arise out of or are connected with a commercial
          transaction, which viewed in the aggregate,
          substantially affects interstate commerce.
     Lopez, 115 S. Ct. at 1630-31. The Court reasoned that "the
possession of a gun in a local school zone is in no sense an
economic activity that might . . . substantially affect
interstate commerce." Id. at 1634.
     We have no difficulty here in finding that the sale of 1080
grams of cocaine within one thousand feed of a school zone is an
activity which "substantially affects interstate commerce." In
so holding, we recognize that the Drug-Free School Zones Act
directly regulates commerce in illegal drugs. See, e.g., United
States v. Zorilla et al., 93 F.3d 7 (1st Cir. 1996) ("Drug Free
School Zones Act" directly regulates interstate commerce.").
     A large interstate market exists for illegal drugs. Congress
has the power to regulate that market just as it has the power to
regulate food and drugs in general. See, e.g., Minor v. United
States, 396 U.S. 87, 98, n.13, 90 S.Ct. 284, 289, n.13 (1969);
Reina v. United States 364 U.S. 507, 511, 81 S. Ct. 260, 263,
(1960).   Moreover, when Congress enacted the Comprehensive Drug
Abuse Prevention and Control Act of 1970 (of which 21 U.S.C. §
860 is a part), Congress expressly found that drug trafficking
affected interstate commerce. See 21 U.S.C. § 801; Comprehensive
Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513,
1970 U.S.C.C.A.N. (84 Stat.)4566, 4595-96.
     We do not find Lopez helpful to appellant. The Gun-Free
School Zones Act and the Drug-Free School Zones Act are
distinguishable. 18 U.S.C. § 922(q) punished mere possession of
a firearm near a school. In contrast, 21 U.S.C. § 860 prohibits
the sale, distribution and possession with intent to distribute
illegal drugs near a school. Drug trafficking is an inherently
commercial activity; the mere possession of a firearm is not.
Drug trafficking near a school zone is an economic activity that,
through repetition, substantially affects interstate commerce.
See United States v. Thortnon, 901 F.2d 738, 741 (9th Cir. 1990);
United States v. McDougherty, 920 F.2d 569, 572 (9th Cir. 1991)
("it would be illogical to believe that [drug] trafficking ceases
to affect commerce when carried out within 1000 feet of a
school").
                                I                III.
     In sum, we find that 21 U.S.C. § 860 is a constitutional
exercise of congressional authority under the Commerce Clause.
The decision of the district court will be affirmed.
