                     REVISED - September 18, 2001

                    UNITED STATES COURT OF APPEALS
                         For the Fifth Circuit



                                 No. 00-10569



                         UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,


                                    VERSUS


                           JAMES MCFARLAND, JR.,

                                                      Defendant-Appellant.




           Appeal from the United States District Court
                For the Northern District of Texas
                              August 29, 2001


Before GARWOOD, JOLLY, and DeMOSS, Circuit Judges.

PER CURIAM:

     On four different dates in a one month period in 1998, James

W. McFarland (“McFarland”) robbed four different retail convenience

stores   operated   by    four   different   owners    at   four   different

locations in the City of Ft. Worth, Texas.         His modus operandi was

extremely simple: enter the store and pretend to look for something

to buy; when he was the only customer in the store, approach the

clerk at the cash register and pull out a .25 caliber pistol;
instruct the clerk to open the cash drawer and then lay down on the

floor; reach in and grab all of the paper currency in the cash

drawer; and tell the clerk to stay on the floor for five minutes

and walk out the door.    The dollar amount of his take at each store

was modest: at Quick Way Shopping, he got $50; at Buy Low, he got

$100; at Jeff Stop, he got $145; and at Gateway Liquor, he got

somewhere between $1,500 and $2,000.        In each case, the clerk

victim called 911 and reported the robberies to the Ft. Worth

Police Department which conducted an investigation and ultimately

arrested and jailed McFarland on charges of robbery under state

law.   However, instead of being prosecuted by the State as would

the perpetrators of hundreds of other similar robberies which

occurred in the City of Ft. Worth in that year, McFarland was

treated differently.     Through the alchemy of federal prosecutorial

discretion, a federal grand jury indicted McFarland for a count of

“interference with interstate commerce by robbery” (Hobbs Act) and

a count for use of a firearm in commission of a federal felony (gun

count) on each of the four robberies.     He was tried before a jury

in federal court and found guilty on all counts.      On each of the

Hobbs Act counts, he was sentenced to 210 months in prison, to be

served concurrently with the other Hobbs Act sentences.       On the

first gun count, he was sentenced to 60 months and, on each of the

remaining three gun counts, he was sentenced to 300 months, all of

such gun count sentences to be served consecutive to the Hobbs Act

counts and consecutive to each other, as mandated by the United

                                   2
States Congress.      As a result, his total sentence to be served is

1,170 months.        Since federal sentencing does not contain any

provision for parole, McFarland will serve 97 and one-half years,

less   any   small   percentage   reduction   as    he    may   earn   by   good

behavior.    In contrast, under Texas law, McFarland could have been

sentenced to as little as five years.1             And, regardless of the

length of his sentence, he would have been eligible for parole

after serving half his sentence, or 30 years, whichever was less.

See TEX. CODE CRIM. PROC. art. 37.07, sec. 4(a).         By prosecuting these

crimes in the federal system, McFarland has received, in effect, a

life sentence without parole.

       McFarland appeals, asserting that the application of the Hobbs

Act to these local robberies is unconstitutional, and citing

particularly the recent decisions of the United States Supreme

Court in United States v. Jones2 and United States v. Morrison.3

This is not the first occasion on which this Court has agonized

over the propriety of the gambit of prosecuting criminal conduct

which has historically and traditionally been prosecuted under the

state system as a federal crime in order to maximize punishment.

In United States v. Hickman, 151 F.3d 446 (5th Cir. 1998), another


  1
      Aggravated robbery under Texas law is a first degree felony,
TEX. PEN. CODE § 29.03(b), and carries a punishment of a minimum of
5 and a maximum of 99 years. TEX. PEN. CODE § 12.32.
  2
       529 U.S. 848 (2000).
  3
       529 U.S. 598 (2000).

                                     3
panel of this Court addressed factual circumstances amazingly

similar and raising the same constitutional issues.        The Hickman

panel concluded that they were bound by existing Circuit precedent

in United States v. Robinson, 119 F.3d 1205 (5th Cir. 1997), which

held:

               We find the reasoning of Bolton unassailable.
          We agree that under the third category of the
          commerce power described in Lopez, the particular
          conduct at issue in any given case need not have a
          substantial   effect   upon  interstate   commerce.
          Congress is free to act -- and the government to
          apply the law -- so long as the regulated activity,
          in the aggregate, could reasonably be thought to
          substantially affect interstate commerce.

               Appellant’s as-applied challenge to the Hobbs
          Act collapses in the face of the aggregation
          principle. Every robbery or act of extortion in
          violation of the Hobbs Act must have an effect on
          interstate    commerce;    the    Act’s    express
          jurisdictional element ensures this.    It follows
          with the inexorable logic of the multiplication
          table that the cumulative result of many Hobbs Act
          violations is a substantial effect upon interstate
          commerce.

Id. at 1215.   A majority of the active judges of this Court voted

to reconsider the Hickman decision en banc; but that en banc

reconsideration   resulted   in   a   tie   vote   among   the   judges

participating in that reconsideration, which left the Robinson

panel decision in place as the binding precedent for this Circuit.

See United States v. Hickman, 179 F.3d 230 (5th Cir. 1999).

McFarland urges us to read the Supreme Court’s language in Jones

and Morrison as being clear enough and sufficiently on point for


                                  4
this panel to reach a conclusion different from the existing

Circuit precedent in Robinson.       But neither Jones nor Morrison

dealt with the Hobbs Act which is the heart of this continuing

controversy.   And this Circuit has followed a tradition and custom

of a rule of orderliness which precludes a subsequent panel from

disregarding the holding of a prior panel unless that prior holding

has been changed by an intervening en banc decision of this Court

or by a Supreme Court decision.      While the tie vote on en banc

reconsideration in Hickman certainly indicates that this Court

sitting en banc has not finally resolved the question of the

constitutionality of applying the Hobbs Act to criminal conduct

which has traditionally been prosecuted as a matter of State

responsibility, this panel nevertheless considers itself obligated

to adhere to the Circuit precedent in Robinson and, therefore, we

affirm the convictions and sentences against McFarland in this

appeal.



ENDRECORD




                                 5
DeMOSS, specially concurring:

     I concur in the conclusion reached by the panel that our rule

of orderliness and considerations of collegiality within the Court

require our adherence to the Circuit precedents in Robinson unless

and until changed by an en banc decision.     I write separately to

advise the parties and the rest of the Court that, in due course

after issuance of this opinion, I will timely hold the mandate and

call for a ballot for en banc reconsideration.     I will take this

action for the following reasons:

     1.     I think it is unhealthy to have a Circuit precedent

hanging by the slender thread of an en banc tie vote; and as a

matter of Court policy we should work to reach a definitive

conclusion, one way or the other, on that Circuit precedent as soon

as possible.

     2.     In our en banc reconsideration in Hickman, we had before

us only the Supreme Court decision in Lopez as a guide for testing

the power of Congress under the Interstate Commerce clause to

regulate intrastate activities.     There are some commentators who

think that Lopez was “an aberration” or “a single shot decision” or

a “flash in the pan” or “was unlikely to be applied in any other

context.”      But the decision of the Supreme Court in Morrison

clearly shows that such characterizations are incorrect.         In

Morrison, the Supreme Court reaffirmed, readopted, and reapplied

all of the key holdings of Lopez, particularly those relating to

the third prong of Lopez giving Congress the power to regulate
“activities which substantially affect interstate commerce.”            I

would hope, therefore, that some of my colleagues who concluded in

Hickman that Lopez was not a sufficient basis for changing our

Circuit precedent, would, in light of Morrison, at least be willing

to reconsider that conclusion.

     3.    In two respects I would suggest that the language of

Morrison   directly   undercuts   the   foundation   of   this   Circuit’s

precedent in Robinson.    First of all, the Supreme Court stated:

           We accordingly reject the argument that Congress
           may regulate non-economic, violent criminal conduct
           based solely on that conduct’s aggregate effect on
           interstate commerce.

120 S.Ct. at 1754.     Our Circuit precedent in Robinson stands or

falls on the validity of its conclusion that the aggregate effect

of all robberies on convenience stores may justify the application

of the Hobbs Act to those robberies.

     Secondly, in Morrison the Supreme Court undercut Robinson by

stating:

           Gender motivated crimes of violence are not in any
           sense of the phrase economic activity.

120 S.Ct. at 1751.    This conclusion is similar to the one reached

by the Supreme Court in Lopez where it held that possession of a

gun in the vicinity of a school was not in any sense of the word an

economic activity. In Morrison the Supreme Court went on to state:

           Indeed, if Congress may regulate gender motivated
           violence, it would be able to regulate murder or
           any other type of violence since gender motivated

                                   7
              violence, as a subset of all violent crime, is
              certain to have lesser economic impacts than the
              larger class of which it is a part.

120 S.Ct. at 1753.             I can see no rational basis upon which the

robberies perpetrated here in McFarland could be categorized as an

“economic activity” in light of these statements from Morrison.

      4.      The last statement of the Supreme Court in Morrison which

I think is particularly relevant to our decisions here in McFarland

is:

              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.

120   S.Ct.    at    1754.       It     is   beyond     dispute   that   the   retail

convenience stores involved as victims of the robberies in this

case were not instrumentalities or channels of interstate commerce.

I would submit that the paper currency in the cash drawer of a cash

register      in    one   of    these    stores    is    not   “goods    involved   in

interstate commerce.”           The currency in the cash drawer is money, a

medium of exchange.            The money gets in the cash drawer because a

customer brings it in and exchanges that money for some “goods”

which he desires to purchase.4               This purchase transaction is a sale



  4
     This distinction between “goods” and “money” is recognized by
the Uniform Commercial Code which defines “goods” as “all things
(including specially manufactured goods) which are moveable at the
time of identification of the contract for sale other than the
money in which the price is to be paid.” U.C.C. § 2-105 (emphasis
added).

                                              8
to the ultimate consumer of those “goods or commodities” and is the

final transaction by which those goods or commodities become the

personal property    of   the   purchaser        and   leave    any    channel   of

interstate commerce which they may have been in prior to that

moment.    Since McFarland took only cash from the cash drawer, I

would suggest that his robbery was not directed at “goods involved

in   interstate   commerce”;    and,        therefore,   this    language    from

Morrison gives us another basis upon which to distinguish this

case.

      5.   Finally, I would urge the members of this Court to read

again the dissent filed by Judge Higginbotham to the en banc tie

vote decision in Hickman.          179 F.3d at 231 (Higginbotham, J.,

dissenting).      This   dissent   is       a   comprehensive    and    masterful

treatment of all of the various issues which have been raised as to

when Congress may regulate activities under the third prong of

Lopez, which “substantially affect interstate commerce.”                    While

Judge Higginbotham’s dissent was written one year prior to the

Supreme Court decision in Morrison, you will be surprised on re-

reading to see how comfortably his analysis, reasoning and language

fit on the aegis of the language of the Supreme Court in Morrison.




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