
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-2365                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   RAMON ZORRILLA,                                Defendant, Appellant.                              _________________________          No. 95-2249                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                              MIGUEL CALDERON SALMIENTO,                                Defendant, Appellant.                              _________________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Daniel R. Dominguez, U.S. District Judge]                                              ___________________                              _________________________                                        Before                                Selya, Cyr and Lynch,                                   Circuit Judges.                                   ______________                              _________________________               Gustavo  A. Gelpi, Jr.,  Assistant Federal  Public Defender,               ______________________          with whom Benicio Sanchez Rivera, Federal Public Defender, was on                    ______________________          brief, for appellants.               Jose A.  Quiles-Espinosa,  Senior Litigation  Counsel,  with               ________________________          whom Guillermo Gil, United States Attorney, Antonio R. Bazan  and               _____________                          ________________          Nelson  Perez-Sosa,  Assistant United  States Attorneys,  were on          __________________          brief, for appellee.                              _________________________                                   August 19, 1996                              _________________________                    SELYA, Circuit  Judge.   Defendants Ramon  Zorrilla and                    SELYA, Circuit  Judge.                           ______________          Miguel Calderon  Salmiento were charged, inter  alia, with aiding                                                   _____  ____          and  abetting  each  other  in  the  intended  distribution of  a          controlled  substance  (approximately two  kilograms  of cocaine)          within 1,000  feet of a  school.   See 21 U.S.C.     841(a)(1)  &                                             ___          (b)(1)(B),  860(a);   18  U.S.C.     2.1    They  challenged  the          constitutionality of section 860(a), but the district court ruled          against them.   See United States v. Salmiento, 898  F. Supp. 45,                          ___ _____________    _________          46-48  (D.P.R. 1996).    They then  pled  guilty to  the  charge,          reserving  the right  to revisit  the constitutional  question on          appeal.  The lower court sentenced them under 21 U.S.C.   841(b),          making use of  the enhancement  directed by 21  U.S.C.    860(a).          These proceedings followed.                    We review  the constitutionality of an  Act of Congress          de novo.   See United  States v. Gifford,  17 F.3d 462,  472 (1st                     ___ ______________    _______          Cir. 1994).  The statute that the appellants challenge, 21 U.S.C.            860(a), by its terms applies to some    but not all   offenders          who  manufacture or  distribute, or  who possess  with intent  to          manufacture   or   distribute,  controlled   substances,  thereby          violating 21  U.S.C.    841(a)(1).   The selection  process under          section  860(a)  operates  by   plucking  from  the  mine-run  of          miscreants who  violate section 841(a)(1) those  whose crimes are          committed within 1,000 feet of a school  and essentially doubling                                        ____________________               1We   reproduce  the  relevant   text  of  sections  860(a),          841(a)(1), and  841(b)(1)(B) in the appendix.   18 U.S.C.   2 is,          of  course, the  familiar  statute that  criminalizes aiding  and          abetting, and we see no need to reprint it.                                          2          the maximum  available punishment.    Thus, section  860(a) is  a          sentence-enhancer, pure and simple.                    The defendants contend  that this  sentence-enhancement          scheme runs afoul of  the Commerce Clause, U.S. Const.  art. I,            8,  cl.  3, because  Congress lacked  power  under the  Clause to          legislate in  this realm.   They pin their  hopes on  the Court's          opinion in United States v. Lopez, 115 S. Ct. 1624 (1995).  Their                     _____________    _____          reliance is mislaid.                    We need  not tarry.   Although  the Lopez  Court struck                                                        _____          down  the   Gun-Free  School  Zones  Act,  18   U.S.C.     922(q)          (criminalizing the possession of  firearms within a school zone),          on the ground that the prohibited  conduct was not of a type that          substantially affects interstate commerce, 115 S. Ct. at 1631, it          did  so  because the  underlying  conduct    firearms  possession          simpliciter   "has nothing  to do with `commerce' or  any sort of          ___________          economic  enterprise,  however  broadly one  might  define  those          terms."   Id. at 1630-31.   The Lopez  Court nonetheless  made it                    ___                   _____          perfectly clear  that, under the Commerce  Clause, Congress could          regulate, inter alia, those activities which have a consequential                    _____ ____          effect on,  or which  bear a  meaningful relation  to, interstate          commerce.  See  id. at 1629-30 (citing  NLRB v. Jones  & Laughlin                     ___  ___                     ____    _________________          Steel Corp., 301 U.S. 1, 37 (1937)).          ___________                    This  is such  a  case.   Here,  unlike in  Lopez,  the                                                                _____          statutory  scheme has  an unmistakable  commercial nexus  and the          underlying  conduct possesses  a significant  economic dimension.          Many  courts,   including  this   court,  have  held   that  drug                                          3          trafficking  is precisely  the kind  of economic  enterprise that          substantially  affects interstate  commerce and  that, therefore,          comes  within  Congress's  regulatory  power under  the  Commerce          Clause.  See, e.g., United States v. Lerebours, 87 F.3d 582, 584-                   ___  ____  _____________    _________          85 (1st Cir.  1996); United States v. Staples, 85  F.3d 461, 463,                               _____________    _______          amended,  ___ F.3d ___ (9th  Cir. 1996) [1996  WL 359984]; United          _______                                                    ______          States v. Genao,  79 F.3d  1333, 1336-37 (2d  Cir. 1996);  United          ______    _____                                            ______          States v. Wacker, 72  F.3d 1453, 1475 (10th Cir.  1995), petition          ______    ______                                         ________          for  cert. filed, No. 95-9284 (U.S. June 10, 1996); United States          ________________                                    _____________          v.  Brown, 72  F.3d 96,  97 (8th  Cir. 1995) (per  curiam), cert.              _____                                                   _____          denied, 116 S. Ct. 2581 (1996); United  States v. Leshuk, 65 F.3d          ______                          ______________    ______          1105, 1112 (4th Cir. 1995).  Indeed, Congress made particularized          findings  to  this effect  when it  enacted  the full  panoply of          criminal laws anent controlled substances.  See 21 U.S.C.   801.                                                      ___                    Given both this background and the truism "that courts,          when passing upon the constitutionality of a statutory provision,          must view it in the context of the whole  statutory scheme," Vote                                                                       ____          Choice, Inc. v.  DiStefano, 4 F.3d 26, 33 (1st  Cir. 1993), it is          ____________     _________          not  surprising to find that every court which has confronted the          appellants'  argument in  the post-Lopez  era has  upheld section                                             _____          860(a) against  a Commerce Clause  challenge.  See,  e.g., United                                                         ___   ____  ______          States v. Tucker,  ___ F.3d  ___, ___  (6th Cir.  1996) [1996  WL          ______    ______          413411, at *1-4]; United States v. Rogers, ___ F.3d ___, ___ (7th                            _____________    ______          Cir. 1996) [1996 WL  399850, at *11-12]; United States  v. Clark,                                                   _____________     _____          67 F.3d 1154, 1165-66 (5th  Cir. 1995), cert. denied, 116 S.  Ct.                                                  _____ ______          1432 (1996); United  States v. Garcia-Salazar, 891 F.  Supp. 568,                       ______________    ______________                                          4          569-72 (D. Kan. 1995); see also United States v. McDougherty, 920                                 ___ ____ _____________    ___________          F.2d  569,  572 (9th  Cir.  1990)  (scuttling pre-Lopez  Commerce                                                            _____          Clause  challenge to earlier version of    860(a)), cert. denied,                                                              _____ ______          499  U.S. 911 (1991).  Because we  do not doubt that Congress has          the authority under the Commerce  Clause to regulate an  activity          as  clearly  commercial in  character  as  drug trafficking,  and          because the  particular statute that the  appellants challenge is          nothing  more  than  a sentence-enhancer  applicable  to  certain          proscribed drug trafficking activities, we  hold that 21 U.S.C.            860(a) does not trespass into constitutionally forbidden terrain.          See generally Lopez, 115 S. Ct. at 1633 (hypothesizing that a law          ___ _________ _____          enacted  by virtue  of Congress's  "authority under  the Commerce          Clause   to  regulate   numerous   commercial   activities   that          substantially  affect  interstate  commerce and  also  affect the          educational process" would survive a constitutional attack).                    We need go  no further.2   The  challenged statute,  21          U.S.C.   860(a), passes  constitutional muster under the Commerce          Clause.   Hence, the  defendants' convictions and  sentences must          stand.          Affirmed.          Affirmed.          ________                                        ____________________               2To the extent that  the appellants raise a  developed Tenth          Amendment challenge to 21 U.S.C.   860(a), it is unavailing.  See                                                                        ___          Lerebours, 87 F.3d at  585; United States v. Owens,  996 F.2d 59,          _________                   _____________    _____          60-61 (5th Cir. 1993) (per curiam).                                          5                                  STATUTORY APPENDIX                                  __________________                    The sentence-enhancing  statute,   21 U.S.C.    860(a),          provides in relevant part (with certain exceptions not applicable          here) that:                         Any   person    who   violates   section                    841(a)(1)   .   .   .  of   this   title   by                    distributing,   possessing  with   intent  to                    distribute,  or  manufacturing  a  controlled                    substance in  or on,  or 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 a                    playground,  or housing  facility owned  by a                    public  housing authority, or within 100 feet                    of a public or  private youth center,  public                    swimming pool, or video arcade facility, is .                    .  .   subject  to  (1)  twice   the  maximum                    punishment  authorized  by section  841(b) of                    this title;  and (2) at least  twice any term                    of supervised release  authorized by  section                    841(b) of this title for  a first offense.  A                    fine up to twice  that authorized by  section                    841(b)  of  this  title  may  be  imposed  in                    addition   to   any   term  of   imprisonment                    authorized by this subsection . . . .          Section  860(a)  cross-references 21  U.S.C.    841(a)(1),  which          provides in relevant part:                         Except as [otherwise authorized by law],                    it shall be unlawful for any person knowingly                    or intentionally                                      (1) to  manufacture, distribute, or                         dispense, or possess with intent to                         manufacture,     distribute,     or                         dispense, a  controlled substance .                         . . .          Section 860(a) also cross-references 21 U.S.C.   841(b)(1), which          provides in relevant part:                         Except as otherwise provided  in section                    859, 860,  or 861  of this title,  any person                    who violates subsection  (a) of this  section                                          6                    shall be sentenced as follows:                                        * * *                         (B)  In  the case  of  violation of                         subsection  (a)   of  this  section                         involving                                           * * *                         (ii) 500 grams or more of a mixture                         or    substance     containing    a                         detectable amount of                                          * * *                         (II)  cocaine,  its salts,  optical                         and geometric isomers, and salts of                         isomers;                                        * * *                         such person shall be sentenced to a term                    of imprisonment which may  not be less than 5                    years and not  more than 40 years  . . .  , a                    fine  not  to  exceed  the  greater  of  that                    authorized in accordance with  the provisions                    of Title  18, or $2,000,000 if  the defendant                    is an individual . . . .                                          7
