                   UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT

                             ______________


                               No. 92-2598

                             ______________



                        UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                                    versus


                            CARLOS ECHEVARIA,

                                                Defendant-Appellant.

                             ______________


            Appeal from the United States District Court
                 for the Southern District of Texas

                             ______________

                        ON PETITION FOR REHEARING

       ( Opinion June 2, 1993, 5th Cir.,_______F.2d______ )

                              July 1, 1993

Before GOLDBERG, GARWOOD and WIENER, Circuit Judges.


GOLDBERG, Circuit Judge:

     The petition for rehearing is hereby granted and this opinion

is substituted for the earlier opinion issued on June 2, 1993.

     Carlos Echevaria pleaded guilty to possession of crack cocaine

with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1).

At   the   sentencing    hearing,    the     district   court   found   that


                                      1
Echevaria's          offense   occurred      within    one      thousand   feet   of     a

"protected area" and enhanced Echevaria's sentence by two levels

under     §    2D1.2      of   the     United    States      Sentencing    Guidelines

("U.S.S.G."). On appeal, Echevaria challenges the district court's

application of § 2D1.2.              We affirm.



                           FACTS and PROCEEDINGS BELOW

       The facts of this case are not in dispute.                  On the evening of

February 18, 1992, at approximately 7:55 p.m., undercover police

officer       R.F.    Benavides      drove   through      the    parking   lot    of    an

apartment complex in Houston.                    Benavides was flagged down by

Echevaria who asked Benavides what he needed.                         Benavides told

Echevaria that he wished to purchase $120 worth of crack cocaine.

Echevaria sold the requested amount of crack to Benavides and was

promptly arrested by other police officers on the scene.                               The

parking       lot    at   which      the   transaction     between    Echevaria        and

Benavides took place was 634 feet away from the "Robindell School,"

a private kindergarten.

       During Echevaria's sentencing hearing, the government urged

the district court to enhance Echevaria's sentence under § 2D1.2 of

the U.S.S.G. because the drug offense occurred within a thousand

feet    of    a     "protected    location."          Echevaria     objected     to    the

enhancement, arguing that the Robindell School is not a protected

location.         The district court agreed with the government that the

Robindell School was a protected location and increased Echevaria's

sentence by two offense levels.                  Echevaria was sentenced to 36


                                             2
months imprisonment to be followed by six years of supervised

release.



                                    ANALYSIS

     Section     2D1.2   of   the   U.S.S.G.    provides   for    an   enhanced

sentence   for    offenses     occurring       near   protected    locations.

Protected locations are defined in 21 U.S.C. 8601 as all areas

     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 playground, or within 100 feet of a
     public or private youth center, public swimming pool, or
     video arcade facility.

     It is undisputed that Echevaria sold crack cocaine within one

thousand feet of the Robindell School.                The question we must

resolve is whether the Robindell School, a kindergarten, is a

"protected location" within the meaning of § 860.

     The   government     claims     that   kindergartens    are       protected

locations under § 860 because they fall within the definition of

"elementary schools."         Unfortunately, § 860 does not define or

elaborate on the meaning of "elementary schools."           The question of

whether a kindergarten is an elementary school for the purposes of

§ 860 has never been squarely addressed by a federal court.                 Two

federal courts have indicated in dicta that kindergartens are not

elementary schools.      The Ninth Circuit in United States v. Pitts

intimated that elementary schools "may not include day care centers

or preschools."    908 F.2d 458, 460 n.4 (9th Cir. 1990).          Similarly,


     1
         The statute was originally codified at 21 U.S.C. 845a.

                                       3
the District of Connecticut, in United States v. Parsell, 815

F.Supp 84 (D. Conn. 1993), stated in dicta that under the "rule of

lenity" a religious nursery school might well fall outside the

scope of § 860.2

     To determine whether the Robindell School is an elementary

school under § 860, we must examine the purpose behind § 860.

Congress enacted § 860 in recognition of the dangers that drugs,

and the crimes associated with drug dealing, pose to children.                 As

we explained in U.S. v. Wake:

     there is an obvious and great danger in the mere presence
     of drug dealers around schools. Among other things, the
     existence of large quantities of prohibited substances in
     a school zone, not to mention the concomitant crimes and
     risk of harm associated with drug dealers, increases
     greatly the likelihood that schoolchildren will come in
     contact with them or otherwise be placed directly in
     harm's way. 948 F.2d 1422, 1433 (5th Cir. 1991) cert.
     den. 112 S.Ct. 2944 (1992).

The aim of the statute is to "create a 'drug-free zone' around our

schools and to send a clear signal to drug dealers that we will not

tolerate their presence near our schools."              United States v. Crew,

916 F.2d 980, 982 (5th Cir. 1990)(quoting 130 Cong.Rec. S559,

statement of Senator Hawkins).         The statute attempts to create the

desired   drug    free    zones   by       penalizing     more    harshly    drug

transactions     that   occur   near   places,    such     as    schools,   where

children gather.

     Section 860 places "the burden on drug dealers to ascertain


     2
        A Florida state court of appeals, interpreting a state
law analogous to § 860, ruled that a kindergarten is not an
elementary school. State of Florida v. Roland, 577 So.2d 680
(Fla. App. 1991).

                                       4
their proximity to schools."              U.S. v. Wake, 948 F.2d at 1433.        If

a defendant distributes, possesses with the intent to distribute,

or manufactures a controlled substance within a thousand feet of a

school his sentence may be enhanced regardless of whether the

defendant intended to commit a drug offense within one thousand

feet of a school.

       Examining the nature of the Robindell School in light of

Congress' intent in enacting § 860, we find that the Robindell

School is an elementary school and a protected location within §

860.       Any   reasonable       person   who   attempted    to   ascertain    the

proximity of schools to the parking lot where the drug sale took

place would have easily noticed the presence of the Robindell

School     634   feet     away.      The    Robindell   School     is   a    private

educational institution that is indistinguishable from an ordinary

elementary       school    in     size,    operation,   and   outward       physical

appearance.      The school teaches three hundred and fifty students.

It has numerous enclosed classrooms, two playgrounds,3 a lunch

room, and a teacher's lounge.

       While the Robindell School predominantly teaches kindergarten

age children, the school also provides after-school tutoring for

children up to twelve years of age.                Students at the Robindell

School sit in classrooms behind desks while receiving instruction




       3
        We note that even if the Robindell School was not an
elementary school, the school might still be a protected location
under § 860 as a "playground."

                                            5
in math, spelling, reading, phonics, social studies, and health.4

The teachers      at    the    Robindell       School   are     state    licensed        and

certified, and must undertake annual continuing education.5

      The school posts a large sign in the front of its building

reading:   "THE    ROBINDELL       SCHOOL."          Due   to    the     school's        own

designation,     its     appearance,      and     its   function,        a   reasonable

passerby   could       not    distinguish      the   Robindell     School         from   an

ordinary elementary school.              In fact, in all years prior to the

school year of Echevaria's offense, the Robindell School did teach

first and second grade.

      Given the nature of the Robindell School, finding that it is

a protected location under § 860 furthers Congresses's intent in

enacting   §   860.          Echevaria    cannot     reasonably        claim      to   have

concluded that the Robindell School is not an elementary school.

The building posts a sign advertizing itself as a school, is large

enough to have three hundred and fifty students, two playgrounds

and   numerous     classrooms.           The    Robindell       School       is   readily

observable as the kind of place that Congress wanted to make a drug

free protected area.            We note that while we conclude that the

Robindell School is an elementary school under § 860, we need not

      4
        One can easily imagine these children singing "school
days, school days, golden golden rule days. Reading and writing
and arithmetic, taught to the tune of a hickory stick."
      5
        We also note that Texas law provides for free public
kindergartens, see Tex. Educ. Code Ann. § 21.132 (Vernon 1987 &
Supp 1993), the state board of education selects textbooks for
use in kindergarten, see Tex. Educ. Code Ann. § 12.14(a), and in
the Texas public school system, kindergartens are considered part
of the elementary schools, see Tex. Educ. Code Ann. § 21.797
(Vernon Supp 1993).

                                           6
decide whether all kindergartens are elementary schools under §

860.

       Having concluded that the Robindell School is an elementary

school under § 860 and thus a protected location, we must review

the district court's two level enhancement of Echevaria's sentence

under U.S.S.G. § 2D1.2(a)(1).       Section 2D1.2(a)(1) provides for a

two level sentence increase on the basis of the "quantity of

controlled substances directly involving a protected location. . ."

Echevaria argues that a two level increase under § 2D1.2(a)(1) is

inappropriate in the instant case because his transaction with

Benavides   did   not   "directly   involve"   the   protected   location.

Echevaria points out that the sale of crack involved two adults,

neither of whom had anything to do with the school.          However, as

the Ninth Circuit recently found in United States v. Walker, No.

92-50223 (9th Cir. May 19, 1993), slip op. 5158, "[i]t does not

matter whether the drugs were sold on school property or to school

children, or whether the drugs were merely possessed near the

protected location by someone unconnected to the school.                It

suffices that the drugs are present within 1,000 feet of the

school."6   The district court correctly held that Echevaria's drug

       6
        In Walker, the Ninth Circuit explained the intended
meaning of the phrase "directly involving" in the context of §
2D1.2(a)(1):   the phrase directly involving a
               protected location in subsection
               (a)(1) is intended to distinguish
               that quantity from the 'total
               quantity' of controlled substances
               involved in the offense. Thus, the
               distinction drawn by the Guideline
               is between drugs actually sold or
               possessed near the location and

                                     7
offense directly involved a protected area for the purposes of §

2D1.2(a)(1).



                              CONCLUSION

     For the foregoing reasons we AFFIRM the decision of the

district court.




                  those drugs that are part of the
                  same course of conduct but are sold
                  or possessed outside the protected
                  area. Walker Slip Op. at 5157.

                                   8
