                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          APR 2 2001
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 00-3012
 v.
                                                (D.C. No. 99-CR-10086-002)
                                                    (District of Kansas)
 ELLIOT C. TOLES,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before BRORBY, McKAY and LUCERO, Circuit Judges.


      Elliot Toles was found guilty by a jury of, among other things, three counts

of robbery in violation of the Hobbs Act, 18 U.S.C. § 1951. He was sentenced to

121 months on the Hobbs Act counts and an additional thirty years for the other

counts, to run consecutively. This appeal raises one issue: Does the Hobbs Act

exceed Congress’s power to regulate under the Commerce Clause, U.S. Const. art.

I, § 8, cl. 3? Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This Court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Toles asserts that the constitutionality of the Hobbs Act must be

reevaluated in light of the Supreme Court’s recent decisions regarding Congress’s

power to regulate interstate commerce under the Commerce Clause.           See United

States v. Morrison , 120 S. Ct. 1740, 1748–54 (2000) (holding that Congress

exceeded its authority under the Commerce Clause by enacting the federal civil

remedy of the Violence Against Women Act);         United States v. Lopez , 514 U.S.

549, 567 (1995) (holding that Congress exceeded its authority under the

Commerce Clause by making it a federal offense for any individual to knowingly

possess a firearm in a school zone).     Specifically, he claims that the prior

decisions of this Court upholding the Hobbs Act under the Commerce Clause

“cannot survive the combined effect of      Lopez and Morrison unless robbery is

considered an ‘economic activity’ as defined in Commerce Clause jurisprudence.”

(Appellant’s Br. at 17.) We review that challenge de novo.        United States v.

Wilks , 58 F.3d 1518, 1519 (10th Cir. 1995).

       In the period between briefing and oral argument, this Court decided       United

States v. Malone , 222 F.3d 1286 (10th Cir.),     cert. denied , 121 S. Ct. 605 (2000).

In Malone we considered whether a district court erred in instructing a jury that

only a de minimis effect on interstate commerce is necessary to meet the




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jurisdictional requirement of the Hobbs Act.      1
                                                      Examining our prior jurisprudence

in light of the Supreme Court’s recent decisions, including       Lopez and Morrison ,

we expressly concluded that the Hobbs Act regulates economic activity and was

enacted pursuant to Congress’s Commerce Clause powers.             Id. at 1295 (“Unlike

the statutes at issue in   Morrison and Lopez , the Hobbs Act regulates economic

activity.”). As a result, Toles’s challenge to his Hobbs Act convictions must fail.

       We hold that enactment of 18 U.S.C. § 1951 was a constitutional exercise

of Congress’s authority to regulate interstate commerce. Accordingly, we

AFFIRM Toles’s convictions under that statute.

                                          ENTERED FOR THE COURT



                                          Carlos F. Lucero
                                          Circuit Judge




       1
           The Hobbs Act reads, “Whoever in any way or degree . . . affects
commerce or the movement of any article or commodity in commerce, by robbery
. . . shall be fined . . . or imprisoned . . . , or both.” 18 U.S.C. § 1951(a). “The
term ‘robbery’ means the unlawful taking or obtaining of personal property . . . .”
Id. at § 1951(b)(1).

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