                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             SEP 03 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 12-50388

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00968-SJO-2

  v.
                                                 MEMORANDUM*
MARCUS LEWIS EDWARDS, AKA
Bird, AKA Pops,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                    S. James Otero, District Judge, Presiding

                       Argued and Submitted August 5, 2014
                               Pasadena, California

Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.

       Marcus Lewis Edwards appeals his conviction and sentence under 21 U.S.C.

§ 841(a) for selling 54.5 grams of crack cocaine. We have jurisdiction pursuant to

28 U.S.C. § 1291, and we affirm in part and dismiss in part.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Assuming that Edwards properly raised his Commerce Clause challenge

before the district court, we now reject it. The Commerce Clause empowers

Congress to regulate, among other things, “the intrastate, noncommercial

cultivation, possession and use of marijuana.” Gonzales v. Raich, 545 U.S. 1, 32

(2005) (internal quotation marks omitted). Indeed, based on Congress’s “specific

findings concerning the effect that drug trade has on interstate commerce” and “the

ample judicial recognition that an interstate market for illegal drugs exists,” we

have held that § 841(a) is a permissible exercise of Congress’s Commerce Clause

authority. See United States v. Kim, 94 F.3d 1247, 1250 (9th Cir. 1996).

      Furthermore, the Supreme Court’s decision in National Federation of

Independent Business v. Sebelius (NFIB), 132 S. Ct. 2566 (2012), is inapplicable

here because § 841(a) does not compel commerce. See United States v. Sullivan,

753 F.3d 845, 854 (9th Cir. 2014) (holding that the intrastate production and

possession of child pornography did not “compel commerce, but merely

regulate[d] an activity that Congress could rationally determine would affect

interstate commerce, taken in the aggregate”). Thus, the district court had

jurisdiction over Edwards’ conduct under § 841(a) of the Controlled Substances

Act, which Congress was permitted to enact under its Commerce Clause power.




                                          2
      Because the government did not breach the plea agreement, the appellate

waiver it includes is enforceable. See United States v. Watson, 582 F.3d 974, 986

(9th Cir. 2009). In accordance with the conditions of the appellate waiver,

Edwards’ sentence was within the statutory maximum specified in the plea

agreement, the district court did not depart upward in offense level or determine

that the total offense level was above 27, and the district court’s 96-month sentence

was within the appropriate Guidelines range. Furthermore, because the district

court concluded that Edwards’ offense level was 23, the government was under no

obligation to recommend a low-end sentence. Thus, the government did not breach

the plea agreement, the appellate waiver is enforceable, and we dismiss the non-

constitutional claims raised in this appeal. See Watson, 582 F.3d at 988.1

             AFFIRMED in part and DISMISSED in part.




      1
       During oral argument, we requested supplemental letter briefing as to the
question whether remand for resentencing in light of Amendment 782 is
appropriate at this time. Having reviewed the briefs, we agree with the
government that it is preferable for Edwards to file a motion for a reduction of
sentence under 18 U.S.C. § 3582(c)(2) after the Amendment goes into effect.
                                          3
