                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-12-2001

USA v. Spinello
Precedential or Non-Precedential:

Docket 00-3504




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Filed September 11, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-3504

UNITED STATES OF AMERICA

v.

ROBERT SPINELLO,
       Appellant

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
D.C. Crim. No. 99-cr-00536
District Judge: The Honorable Joseph A. Greenaway, Jr.

Argued: July 24, 2001

Before: ROTH, BARRY, and AMBRO, Circuit Judges

(Opinion Filed: September 11, 2001)

       Mark A. Berman, Esq. (Argued)
       Lawrence S. Lustberg, Esq.
       Gibbons, Del Deo, Dolan, Griffinger
        & Vecchione
       One Riverfront Plaza
       Newark, NJ 07102-5497

       Attorneys for Appellant
       Robert J. Cleary, Esq. (Argued)
       United States Attorney
       George S. Leone, Esq.
       Asst. United States Attorney
       Office of the United States Attorney
       970 Broad Street, Room 700
       Newark, NJ 07102

       Attorneys for Appellees

OPINION OF THE COURT

BARRY, Circuit Judge:

We are principally called upon in this appeal to decide
two issues of first impression in this Court. The first is one
in a long line of post-Lopez1 challenges to federal statutes
on Commerce Clause grounds, this one to the federal bank
robbery statute, 18 U.S.C. S 2113. The second asks that we
determine whether a recent amendment to the United
States Sentencing Guidelines which, in the words of the
Sentencing Commission, "defines and describes aberrant
behavior" was a mere clarification or a substantive change
in the law. We reject the challenge to S 2113 and conclude
that the amendment at issue effected a substantive change
and, thus, cannot be applied retroactively. Accordingly, we
will affirm.

What has brought us to this point is uncomplicated and
not in dispute. Shortly before 3:00 p.m. on January 13,
1999, appellant Robert Spinello, an officer with the Edison,
New Jersey, Police Department, walked into the First
Savings Bank in Edison. He approached a bank teller,
flashed the service pistol that he had concealed in a
newspaper, placed a plastic bag on the counter, and
demanded of the teller, "[G]ive me all your fifty and [one]
hundred straps." In response to the teller's statement that
she had only one strap each of fifty and one-hundred dollar
bills, Spinello told the teller to "keep on going," and then
waited as she filled the plastic bag with $3,500 in the
_________________________________________________________________

1. United States v. Lopez, 514 U.S. 549 (1995).

                                 2
following denominations: $1,000 in one hundred dollar
bills, $1,000 in fifty dollar bills, $1,000 in twenty dollar
bills, and $500 in ten dollar bills. After the bag was filled,
Spinello "told [the teller] to count to ten, and then started
to walk away." After exiting the bank, Spinello drove to his
brother's condominium and stashed the $3,500 in a living
room table. Spinello put the money straps and the hat he
wore during the robbery into a garbage can, hung his jacket
in a closet, and proceeded to the Edison Police
Headquarters, where he arrived at approximately 3:30 p.m.
for his 3:50 p.m. tour of duty.

Later that same day, Spinello, who had been followed out
of the bank by a bank customer who memorized his license
plate number, was told by his superiors to go to the bank
for questioning by the FBI. After his interview with the FBI,
Spinello submitted to a "show-up" identification procedure
where he was positively identified by the victim teller. A
subsequent search of the Edison condominium revealed
$3,500 in the same denominations as had been stolen from
the bank. Spinello was arrested.

On September 16, 1999, Spinello was charged by a
federal grand jury in a three-count indictment with: (1)
bank robbery, in violation of 18 U.S.C. SS 2113(a) and 2; (2)
bank robbery with a dangerous weapon, in violation of
SS 2113(d) and 2; and (3) use of a firearm in relation to a
crime of violence, in violation of SS 924(c) and 2. Prior to
trial, Spinello moved to dismiss the indictment, alleging
that the bank robbery statute itself, or the application of
the bank robbery to the facts of his case, exceeded
Congress's power under the Commerce Clause. The District
Court denied Spinello's motion. See United States v.
Spinello, 95 F. Supp. 2d 242 (D.N.J. 2000). As a result,
Spinello went to trial.

On May 17, 2000, the jury convicted Spinello on all three
counts of the indictment. Prior to his sentencing, Spinello
admitted that he had, in fact, robbed the First Savings
Bank and submitted a memorandum that set forth certain
facts pertinent to sentencing -- in particular, facts by
which he hoped to rebut an obstruction of justice
enhancement and support, on various grounds, his motion
for a downward departure. Two of those grounds are

                               3
reraised on appeal -- the aberrational nature of his
behavior and the "extraordinary" anguish and remorse he
was suffering because of the prosecution of his brother,
Michael, for perjury allegedly committed by him in his
defense of Spinello. The District Court denied the motion
for a downward departure and sentenced Spinello to an
aggregate term of 111 months in prison.

Spinello filed a timely notice of appeal. We have
jurisdiction pursuant to 28 U.S.C. S 1291 and 18 U.S.C.
S 3742.

I.

The Commerce Clause and 18 U.S.C. S 2113

We turn, first, to Spinello's argument that in enacting 18
U.S.C. S 2113 -- the federal statute criminalizing bank
robbery -- Congress exceeded its power under the
Commerce Clause,2 an argument which one of our sister
circuits has somewhat pithily described as "popular with
criminal defendants these days." United States v. Watts,
256 F.3d 630, 631 (7th Cir. 2001). Relying on United States
v. Lopez, 514 U.S. 549 (1995), Spinello claims that, as an
intrastate activity, bank robbery -- or, at least, his bank
robbery -- does not have a "substantial effect" upon
interstate commerce and, thus, S 2113 must fall. "Our
review of the statute's constitutionality is plenary, though
we must respect Congress's ample discretion to determine
the appropriate exercise of its Commerce Clause authority."
United States v. Rodia, 194 F.3d 465, 469 (3d Cir. 1999),
cert. denied, 120 S.Ct. 2008 (2000). Indeed, there is a
"presumption of constitutionality." United States v.
Morrison, 529 U.S. 598, 607 (2000). The precise question
we must answer is this: Did Congress have a rational basis
for concluding that bank robbery substantially affects
interstate commerce? The answer is a ringing "Yes."
_________________________________________________________________

2. The Constitution of the United States provides: "The Congress shall
have power . . . [t]o regulate Commerce with foreign Nations, and among
the several States, and with the Indian Tribes." U.S. Const., Art. I, S 8,
cl. 3.

                               4
In Lopez, the Supreme Court struck down the Gun-Free
School Zones Act of 1990, 18 U.S.C. S 922(q), because the
Act "neither regulate[d] a commercial activity nor
contain[ed] a requirement that possession be connected in
any way to interstate commerce." Lopez, 514 U.S. at 551.
Lopez was significant not so much because, in terms of its
analysis of the commerce power, it plowed new ground.
Rather, it was significant -- and jumped on by defendants
-- because it was the first case in more than half a century
in which the Supreme Court invalidated an act of Congress
solely because Congress had exceeded its authority under
the Commerce Clause; indeed, S 922(q) bore virtually no
relation to interstate commerce. Although, since Lopez, we
have upheld numerous federal criminal statutes against
challenges that they were impermissible exercise of
Congress's commerce power,3 this is our first occasion to
consider that challenge when addressed to S 2113.

It is by now familiar teaching, by virtue of Lopez and its
progeny and lower court decisions too numerous to count
much less mention, that Congress may regulate under its
commerce power in three broad categories. First,"Congress
may regulate the use of the channels of interstate
commerce." Second, "Congress is empowered to regulate
and protect the instrumentalities of interstate commerce, or
persons or things in interstate commerce, even though the
threat may come only from intrastate activities." And, third,
"Congress' commerce authority includes the power to
regulate those activities having a substantial relation to
_________________________________________________________________

3. See, e.g., United States v. Gregg, 226 F.3d 253 (3d Cir. 2000), cert.
denied, 121 S.Ct. 1600 (2001) (upholding Freedom of Access to Clinic
Entrances Act); United States v. Rodia, 194 F.3d 465 (3d Cir. 1999), cert.
denied, 529 U.S. 1131 (2000) (upholding federal statute prohibiting
intrastate possession of child pornography); United States v. Parker, 108
F.3d 28 (3d Cir. 1997), cert. denied, 522 U.S. 837 (1997)(upholding Child
Support Recovery Act, which criminalizes failure to pay past due support
obligations); United States v. Rybar, 103 F.3d 273 (3d Cir. 1996), cert.
denied, 522 U.S. 807 (1997)(upholding federal statute criminalizing
possession of a machine gun); United States v. Orozco, 98 F.3d 105 (3d
Cir. 1996)(upholding Drug-Free School Zones Act); United States v.
Gateward, 84 F.3d 670 (3d Cir. 1996) (upholding federal statute barring
felons from possessing firearms); United States v. Bishop, 66 F.3d 569
(3d Cir. 1995) (upholding federal carjacking statute).

                               5
interstate commerce" -- activities that "substantially affect
interstate commerce." Lopez, 514 U.S. at 558-59. Because
the Gun-Free School Zones Act at issue in Lopez did not
involve any channels or instrumentalities of interstate
commerce, it could only have survived, if it were to have
survived, under the "substantially affects" category, and
that was the category on which the Court focused.

With reference to the third category, under Lopez a
federal criminal statute that includes a jurisdictional
element which would ensure, through case-by-case inquiry,
that the prohibited conduct substantially affects interstate
commerce would, without more, pass muster as would a
statute reaching intrastate economic activity that
substantially affects interstate commerce. See id. at 559-61.
It is, thus, appropriate to consider, first, whether there is in
S 2113 a jurisdictional element which "adequately performs
the function of guaranteeing that the final product
regulated substantially affects interstate commerce." Rodia,
194 F.3d at 473. If it does, as it did not in Rodia, there
would be no necessity to perform the inherently imprecise
analysis of S 2113's constitutionality under the remaining
Lopez considerations -- and more about those
considerations later -- to determine if intrastate bank
robbery substantially affects interstate commerce.

A jurisdictional element, as that phrase has been used in
and after Lopez, "refers to a provision in a federal statute
that requires the government to establish specific facts
justifying the exercise of federal jurisdiction in connection
with any individual application of the statute." Rodia, 194
F.3d at 471.4 Spinello correctly notes that "[t]he mere
presence of a jurisdictional element . . . does not in and of
itself insulate a statute from judicial scrutiny under the
Commerce Clause, or render it per se constitutional. To the
_________________________________________________________________

4. A jurisdictional element is not, however, required, at least where the
federal statute under review regulates economic activity -- and, as we
will discuss, S 2113 does just that. "The law, made clear in Lopez, is
that
where Congress is not regulating economic activity, or instrumentalities
in interstate commerce, the concept of federalism requires a
jurisdictional element linking the criminal act to interstate commerce."
United States v. Wilson, 73 F.3d 675, 694, n.7 (7th Cir. 1995) (Coffee,
J.,
dissenting).

                               6
contrary, courts must inquire further to determine whether
the jurisdictional element has the requisite nexus with
interstate commerce," i.e. whether that element "limits the
statute to items that have an explicit connection with, or
effect upon, interstate commerce." United States v. Bishop,
66 F.3d 569, 585 (3d Cir. 1995).

It requires no great mental gymnastics to conclude that
a more than adequate jurisdictional element is present in
S 2113. Section 2113, unlike S 922(q), contains an express
jurisdictional element with the requisite limitation because
a covered bank is defined, in pertinent part, as a member
of the Federal Reserve System or a banking institution
organized under the laws of the United States or an
institution whose deposits are insured by the Federal
Deposit Insurance Corporation. See 18 U.S.C.S 2113(f). The
Ninth Circuit, in the course of rejecting the same lack of
nexus argument raised here, concluded that it was
sufficient that S 2113 "contains jurisdictional language that
requires the prosecutor to establish a connection to
interstate commerce because the statute's coverage is
limited to banks that are members of the Federal Reserve
System or insured by the FDIC." United States v. Harris,
108 F.3d 1107, 1109 (9th Cir. 1997). See also United States
v. Fryer, 896 F. Supp. 763, 764-65 (N.D. Ill. 1995).

The "case-by-case inquiry" Lopez requires leaves no
doubt not only that the jurisdictional element inS 2113
ensures that bank robbery substantially affects interstate
commerce but that, as the jury found, the First Savings
Bank was within the statute's coverage because it was
insured by the FDIC. But even if the jurisdictional element
in S 2113 had been found wanting, the statute would,
nonetheless, survive a Commerce Clause challenge because
intrastate bank robbery "substantially affects" interstate
commerce.

The Lopez Court, in setting forth the analytical
framework for determining whether a regulated activity
substantially affects interstate commerce, specified four
considerations: (1) whether the statute is one "that by its
terms has nothing to do with `commerce' or any sort of
economic enterprise, however broadly one might define
those terms," Lopez, 514 U.S. at 561; (2) whether, as we

                               7
have already discussed, the statute is one that contains an
"express jurisdictional element which might limit its reach
to a discrete set of [intrastate activities] that additionally
have an explicit connection with or effect on interstate
commerce," id. at 562; (3) whether the statute or "its
legislative history contain[s] express congressional findings
regarding the effects upon interstate commerce" of the
regulated intrastate activity, id.; and (4) whether the link
between the regulated intrastate activity and the effect on
interstate commerce is too attenuated, id. at 563-67. The
Court concluded: "These are not precise formulations, and
in the nature of things they cannot be. But we think they
point the way to a correct decision in this case. The
possession of a gun in a local school zone is in no sense an
economic activity that might, through repetition elsewhere,
substantially affect any sort of interstate commerce." Id. at
567.

Clearly, for starters, the robbery of a bank, unlike the
intrastate possession of a gun within a school zone which
Congress attempted to regulate in S 922(q), is an
"economic" activity almost by definition and is certainly an
economic activity within the broad definition that we
adopted in Bishop. In Bishop, we upheld the federal
carjacking statute and explained that carjacking was an
"economic" activity: "When a criminal points a gun at a
victim and takes his or her car, the criminal has made an
economic gain and the victim has suffered an undeniable
and substantial loss. Replicated 15,000 or 20,000 times per
year, the economic effects are indeed profound." Bishop, 66
F.3d at 581; see also United States v. Gregg, 226 F.3d 253,
262 (3d Cir. 2000) (finding that the misconduct regulated
by the Freedom of Access to Clinic Entrances Act (FACE),
which barred abortion protestors from blocking entrances
to reproductive health care facilities, had "an effect which
is, at its essence, economic" since it interfered with the
commercial transaction of a potential abortion). A bank
robber is obviously motivated by his or her own immediate
economic gain -- money is, of course, "economic" -- and,
wholly aside from whether FDIC insurance will ultimately
kick in, the victim bank and its depositors suffer immediate
economic losses as well as the disruption to their respective
abilities to engage in commerce, interstate or otherwise, by

                               8
such activities as lending and purchasing assets. Thus, it
cannot be said that S 2113 "has nothing to do with
`commerce' or any sort of economic enterprise, however,
broadly one might define those terms." Lopez , 514 U.S. at
561.

With regard to whether the link between the regulated
intrastate activity -- here, bank robbery -- and the effect on
interstate commerce is too attenuated -- a question we
have already answered in the negative in the course of our
discussion of the jurisdictional element which, we found,
guaranteed that nexus -- we stress that S 2113 is not
plagued by the exaggerated "but-for" causation that
brought a death knell, first, to the statute in Lopez, where
the Court rejected the speculative effects of school-zone
possession of guns on interstate commerce and, then, to
the statute in United States v. Morrison, 529 U.S. 598
(2000), where the Court struck down the civil remedy
provision of the Violence Against Women Act (VAWA) after
rejecting the similarly-speculative effects of gender-
motivated violence on interstate commerce. Unlike the
activities regulated in S 922(q) and the VAWA, and separate
and apart from the existence or lack thereof of a
jurisdictional element, bank robbery has immediate, non-
collateral, non-speculative effects on interstate commerce.
As the government puts it:

        Robberies of banks insured by the FDIC, in the
       aggregate, clearly have a substantial affect on
       interstate commerce. The deposits of the banks are
       often the assets of companies, other entities, and
       individuals, who are engaged in interstate commerce,
       and who depend on these assets to conduct their
       interstate business. Individual banks themselves are
       involved in interstate commerce in their deposits and
       other financial services, and are integral, indispensable
       parts of a large complicated financial web that is
       employed every day to move money across the nation
       and around the globe. Additionally, banks lend their
       deposits and other funds to companies, other entities,
       and individuals so that they may participate in
       interstate financial and business transactions. The
       banks' assets are constantly moving in and out of

                                9
       interstate commerce. In fact, interstate commerce
       would be crippled without the funds of banks insured
       by the FDIC. Robberies of these banks threaten the
       uninterrupted operation of these financial institutions
       and the confidence the public has in them.

Appellee's Br. at 33-34. Indeed, long ago, Mr. Justice
Holmes observed, in a case involving a fraud on a state
bank which was a member of the Federal Reserve System,
"[E]very fraud like the one before us weakens the member
bank and therefore weakens the System." Westfall v. United
States, 274 U.S. 256, 259 (1927). Almost as long ago,
Congress itself recognized the connection between
interstate commerce and the federally-insured status of
banks when it concluded that interstate commerce would
be facilitated by a system of federal insurance for the
deposits of banks that preserves the "sound, effective, and
uninterrupted operation of the banking system." See
Banking Act of 1935, ch. 614, 49 Stat. 684 (1935). Thus,
unlike the farfetched "effects" suggested in Lopez and
Morrison, there is no need to "pile inference upon inference"
to manufacture an effect of this intrastate criminal activity
upon interstate commerce. See Lopez, 514 U.S. at 567.

Finally, as the District Court recognized with reference to
the remaining Lopez consideration, "where the connection
to interstate commerce is plainly apparent," as it is here,
"the absence of detailed, numeric [congressional] findings
[regarding the effects of bank robbery on interstate
commerce] is not dispositive." Spinello , 95 F. Supp. 2d at
247. The legislative history is far from silent, however, and
it is quite clear from that history that when S 2113 was
originally enacted in 1934, it was in response to the
problem of " `gangsters who operate habitually from one
State to another in robbing banks.' " Bell v. United States,
462 U.S. 356, 361 (1983), quoting S.Rep. No. 537, 73d
Cong., 2d Sess. 1 (1934), itself quoting a Justice
Department memorandum. The House Report quoted the
same memorandum: "From all sections of this country
Federal relief has been requested. It is asserted that these
criminals are sufficiently powerful and well equipped to defy
local police, and to flee beyond the borders of the State
before adequate focus can be organized to resist and

                               10
capture these bandits." H.R. Rep. No. 1461, 73d Cong., 2d
Sess., 2 (1934). As we observed in Bishop,"[I]f a criminal
activity is rationally believed to be one of the conduits of a
nationwide and international pipeline of illegal activity,
Congress may justifiably step in and regulate that activity
although it is wholly intrastate." 66 F.3d at 585.

It is important to note that the decisions in Lopez and
Morrison were largely driven by the principle that there
must remain "a distinction between what is truly national
and what is truly local." Lopez, 514 U.S. at 567-68. In this
regard, we find it eminently appropriate that, in rejecting
Spinello's challenge, the District Court noted that"federal
law has prohibited bank robberies for 65 years. Thus,
S 2113 neither invades an area of long-standing exclusive
state regulation nor upsets the traditional balance between
the states and the federal government." Spinello, 95 F.
Supp. 2d at 248 n.9; see also Rodia, 194 F.3d at 479
(pointing to the over twenty-year history of federal
regulation of child pornography).

Those courts of appeals that have thus far addressed in
reported opinions Lopez challenges to S 2113 have given
those challenges much shorter shrift than we have given
them, and have uniformly rejected them.5 The Seventh
Circuit, in the most recent rejection, did not reach the issue
of whether the robbery of an intrastate bank substantially
affects interstate commerce because it found that"at the
very least, the FDIC-insured financial institutions are
instrumentalities and channels of interstate commerce and
their protection from robbery is well within Congress's
Commerce Clause power." Watts, 256 F.3d at 634. See also
Harris, 108 F.3d at 1109 (banks that are members of the
Federal Reserve System or insured by the FDIC are
instrumentalities and channels of interstate commerce and
_________________________________________________________________

5. We note that, in unreported opinions, the Fourth and Eighth Circuits
have also rejected Lopez challenges to S 2113, and have similarly given
those challenges short shrift. See United States v. Kluver, No. 99-1848,
2000 WL 1705073 (8th Cir. Nov. 15, 2000)(the requirement that the
victim bank be federally insured provided the necessary connection to
interstate commerce); United States v. Walker , No. 95-5223, 1996 WL
414302 at *2 (4th Cir. July 25, 1996)(S 2113 is a valid exercise of
Congress's Commerce Clause power).

                               11
their regulation is well within Congress's Commerce Clause
power). The only other courts which have, to date,
considered the issue in reported opinions have been even
more succinct. See Fryer, 896 F. Supp. at 764-65 (it is
"crystal clear" by the definitions of the included federal
institutions that the crime of bank robbery underS 2113(a)
and (d) is "unquestionably well within the United States'
commerce power"). An earlier Seventh Circuit case
described the argument that S 2113 exceeds Congress's
powers under the Commerce Clause in one word, with no
further discussion required: "untenable." United States v.
Wicks, 132 F.3d 383, 390 (7th Cir. 1997).

Given our disposition that the activity of bank robbery
substantially affects interstate commerce, we need not
consider, much less decide, whether banks, as defined in
S 2113(f), are channels and/or instrumentalities of
interstate commerce, although such a conclusion would
seem logical given that banks are the sources and the
repositories of the very fuel of our complex interstate
(indeed, global) economy. Banks, although static and
incapable of themselves moving in interstate commerce, are
integral to the web of interstate commercial activity that
permeates our economy today and, as described by the
government, are "the conduit for the primary factor in
commerce -- money -- and the channel through which vast
amounts of interstate commerce are conducted." See
Spinello, 95 F. Supp. 2d at 249.6 Moreover, as the Watts
Court explained:

       FDIC-insured banks are fundamental to the conduct of
       interstate commerce. Congress created the FDIC to
       "keep open the channels of trade and commercial
       exchange." Weir v. United States, 92 F.2d 634, 636 (7th
       Cir. 1937) . . . [T]he government insurance is federally
_________________________________________________________________

6. The District Court found the government's argument that S 2113 is a
legitimate regulation of a channel or instrumentality of interstate
commerce to be "compelling" and "strongly supported by the role banks
play in facilitating, and indeed, permitting the flow of interstate
commerce . . . ." Spinello, 95 F. Supp. 2d at 249, n.11. Because,
however, it had decided the issue under the "substantially affects"
category of commerce power, it, as we, did not need to decide the issue
under the channels or instrumentalities categories.

                                12
       administered, federal officials periodically examine the
       accounts, and the reports sent to the FDIC deal with
       money that has been deposited from many sources,
       including those outside the state." United States v.
       Peay, 972 F.2d 71, 75 (4th Cir. 1992). Robberies of
       FDIC-insured banks thus have an interstate economic
       effect . . . Accordingly, at the very least, the FDIC-
       insured financial institutions are instrumentalities and
       channels of interstate commerce . . . .

Watts, 256 F.3d at 633-34.

We find that 18 U.S.C. S 2113 avoids the infirmities that
doomed the statutes at issue in Lopez and Morrison. Bank
robbery is an economic activity that, with or without
repetition elsewhere, substantially affects interstate
commerce and, thus, is an activity that Congress was well
within its rights to criminalize pursuant to its power under
the Commerce Clause. There was simply no federal overkill
here, and we reject Spinello's challenge to the
constitutionality of S 2113.7
_________________________________________________________________

7. Spinello suggests something akin to an "as applied" challenge as well.
He argues that because bank robbery is a noncommercial activity (a
proposition it should by now be quite clear we reject), the government
was required -- but failed -- to prove that his offense -- $3,500 from a
local branch bank -- had a "substantial effect' upon interstate
commerce. Citing United States v. McGuire, 178 F.3d 203 (3d Cir. 1999),
he claims that each non-commercial intrastate offense predicated upon
Commerce Clause powers must be shown to have its own"substantial
effect" upon interstate commerce in order to be a constitutional exercise
of federal criminal jurisdiction. See McGuire , 178 F.3d at 211-12
(reversing the defendant's conviction for blowing up his mother's car
where the only evidence in support of a jurisdictional link was an orange
juice container that was fortuitously in the car at the time of the
explosion and happened to have moved in interstate commerce). McGuire
stands for the unremarkable proposition that the evidence of a
connection to interstate commerce may be too trivial or attenuated to
support a conviction. Moreover, the McGuire Court was explicit that it
was not saying that the government is required to establish that each
particular use must have a substantial effect on interstate commerce but
only that the evidence presented in that case was not sufficient to
support a conviction. McGuire, 178 F.3d at 212, n.10. And, of course,
Lopez itself was quite clear that where the regulatory statute bears a
substantial relation to commerce, as clearly S 2113 does, the de minimus
character of particular instances is of no consequence. Lopez, 514 U.S.
at 558.

                               13
II.

       5K2.20 -- The Aberrant Behavior Guideline

Spinello argues, next, that the District Court's reliance on
the legal standard enunciated in United States v. Marcello,
13 F.3d 752, 761 (3d Cir. 1994), in its denial of his motion
for a downward departure based on "aberrant behavior,"
was erroneous. Under Marcello, aberrant behavior "must
involve a lack of planning; it must be a single act that is
spontaneous and thoughtless, and no consideration is given
to whether the defendant is a first time offender." Marcello,
13 F.3d at 761. At sentencing, Spinello recognized that
Marcello was circuit precedent which the District Court was
obliged to apply. However, effective November 1, 2000,
subsequent to his sentencing, the Sentencing Commission
amended the Guidelines via Amendment 603 to add
S 5K2.20, which defines "aberrant behavior" in a manner
different from Marcello, to wit: " `Aberrant behavior' means
a single criminal occurrence or single criminal transaction
that (A) was committed without significant planning; (B)
was of limited duration; and (C) represents a marked
deviation by the defendant from an otherwise law-abiding
life." U.S.S.G. S 5K2.20, Comment., n.1. 8 Spinello seeks a
remand to give the District Court the opportunity to
consider S 5K2.20 and, hopefully, to resentence him to a
lower term. Because Spinello contends that the addition of
_________________________________________________________________

8. S 5K2.20 itself provides, under the heading "Aberrant Behavior (Policy
Statement)":

       A sentence below the applicable guideline range may be warranted
       in an extraordinary case if the defendant's criminal conduct
       constituted aberrant behavior. However, the court may not depart
       below the guideline range on this basis if (1) the offense involved
       serious bodily injury or death; (2) the defendant discharged a
       firearm or otherwise used a firearm or a dangerous weapon; (3) the
       instant offense of conviction is a serious drug trafficking
offense; (4)
       the defendant has more than one criminal history point, as
       determined under Chapter Four (Criminal History and Criminal
       Livelihood); or (5) the defendant has a prior federal, or state,
felony
       conviction, regardless of whether the conviction is countable under
       Chapter Four.

U.S.S.G. S 5K2.20.

                               14
S 5K2.20 demonstrates that the District Court committed
legal error in applying Marcello, we have jurisdiction to
consider this claim. Our review is plenary. See United
States v. Paster, 173 F.3d 206, 212 (3d Cir. 1999).

The remand that Spinello seeks as a result of the conflict
between Marcello and S 5K2.20 is only possible if that
guideline section can be applied retroactively. Because
S 5K2.20 is not listed in S 1B1.10(c) for automatic
retroactive application, the question before us is whether
S 5K2.20 is a mere "clarification" of the law that merits
retroactive application to a defendant on direct appeal or a
"substantive change" to the Guidelines that does not. See
United States v. Marmolejos, 140 F.3d 488, 491 (3d Cir.
1998); see also U.S.S.G. S 1B1.11(b)(2) ("[T]he court shall
consider subsequent amendments, to the extent that such
amendments are clarifying rather than substantive
changes."). In Marmolejos, we recognized"the established
principle that a post-sentencing amendment to a
sentencing guideline or its comments should be given effect
if it `clarifies' the guideline or comment in place at the time
of sentencing," while also noting that if an"amendment
effects a substantive change in the law, the defendant does
not reap the benefit of the new provision." Id. at 491
(emphasis added).

We find that Amendment 603, which added S 5K2.20,
worked a substantive change to the Guidelines rather than
a mere clarification of the Guidelines. In Marmolejos, we
acknowledged that there was no bright-line test for
ascertaining whether an amendment was a clarification or
a substantive change. We stressed, however, that our point
of reference was "the guideline or comment in place at the
time of sentencing," Id. at 490, and that the important
factors to consider with respect to that point of reference
were (1) whether, as a matter of construction, that point of
reference was consistent with the amended manual, (2) the
purpose and effect of the enabling amendment, and (3) the
language of the amendment itself. See id. at 491 (citations
omitted). We shall address each of these factors in turn
with respect to S 5K2.20 and Amendment 603-- the
amendment that put into place that section of the
Guidelines.

                               15
First, we concern ourselves with matters of general
construction. Prior to the addition of S 5K2.20, the only
identifiable primary source for the secondary case law that
had developed the notion of aberrant behavior departures
was Chapter One, Part A, Subpart 4(d) of the Guidelines.
Significantly, it was there expressly stated that"[t]he
Commission, of course, has not dealt with the single acts of
aberrant behavior that still may justify probation at higher
offense levels through departures." U.S.S.G. Ch. 1, Pt. A,
4(d) (emphasis added). The Commission's express
acknowledgment that it had not, prior to Amendment 603,
decided what to do about aberrant behavior departures
suggests that, as a matter of construction, any subsequent
guideline that issued on that subject would not merely be
providing some additional guidance or clarification from the
Commission regarding a concept that it had unsuccessfully
attempted to explain in the past. Rather, that
acknowledgment demonstrates that any subsequent
guideline that issued on that subject would constitute the
Commission's first impression and announcement of the
necessary grounds for such a departure and, thus, effect a
substantive change as opposed to a clarification. Stated
somewhat differently, it cannot be seriously maintained
that an amendment that creates an entirely new guideline
is a mere clarifying amendment; the Commission cannot
clarify a position where there was no prior position.

Next, with respect to the stated purpose and effect of
Amendment 603, we note that this amendment added
S 5K2.20 to the Guidelines to "respond[ ] to a circuit conflict
regarding whether, for purposes of downward departure
from the guideline range, a `single act of aberrant behavior'
(Chapter One, Part A, Subpart 4(d)) includes multiple acts
occurring over a period of time." See U.S.S.G. App. C,
amend. 603 (Reason for Amendment). Significantly,
Amendment 603 does not indicate that its purpose is to
clarify its position or the Guidelines approach to aberrant
behavior departures. While we noted in United States v.
Diaz, 245 F.3d 294, 304 (3d Cir. 2001), that the presence
or absence of the words "clarify" or "clarifying" does not
alone determine the retroactivity of an amendment, we also
noted that "it is our own interpretation of the pre-
amendment guidelines that determines whether the

                               16
Amendment clarified that interpretation or substantively
changed it." Id. at 304 (emphasis added). In this regard,
because there was no pre-amendment guideline that even
tangentially addressed an aberrant behavior departure in a
manner that resembles that which S 5K2.20 now
incorporates, we consider it to be of some significance that
the Commission did not indicate that the Amendment was
designed to clarify some previously-held position. 9 Indeed,
the absence of any such indication supports our conclusion
that Amendment 603 and S 5K2.20 set forth the
Commission's first statement of what would -- or could --
constitute the grounds for an aberrant behavior departure.
Parenthetically, we also find significant one of the professed
effects of Amendment 603 -- the incorporation of specific
characteristics for offense conduct that makes one eligible
for an aberrant behavior departure. See U.S.S.G. App. C,
amend. 603 (Reason for Amendment). The fact that the
Commission acknowledges that it "chose" these specific
characteristics from case law and public comment again
confirms to us that the Commission was formulating a new
position as opposed to clarifying an existing one. See id.

Finally, the language of the Amendment itself and, most
particularly, two phrases therein, also prompts the
conclusion that what was afoot was a substantive change
to the Guidelines. First, we note that the Amendment, by
its very terms, "defines and describes `aberrant behavior' "
and "creates a new policy statement and accompanying
commentary." See id. Obviously, because these words are
suggestive of more activity on the part of the Commission
than the words "explains", "clarifies," or "simplifies" would
connote and because there was no prior guideline on
aberrant behavior, we find that they suggest a substantive
change in the law. Our conclusion is reinforced by the fact
that Amendment 603 was, admittedly, a "compromise
amendment." See id. Again, the Commission's intention to
"compromise" between two very different circuit views when
giving meaning to the phrase "aberrant behavior" evidences
_________________________________________________________________

9. We find   it interesting that in seven other amendments to the
Guidelines   that also became effective on November 1, 2000, the
Commission   specifically used the word "clarify." See, e.g., U.S.S.G. App.
C, amends.   577, 579, 581, 591, 598, 599, and 600.

                                 17
the fact that it merely responded to external sources and
created a new guideline as opposed to reflecting internally
upon what aberrant behavior was always intended to mean.
The Tenth Circuit -- the only other circuit court to date to
consider the issue -- recently came to the same conclusion:

       It is clear to us that the Commission viewed S 5K2.20
       as a "substantive" change. Section 5K2.20 adds an
       entirely new section to the Guidelines--new text and
       new commentary. It "alter[ed] the controlling pre-
       amendment interpretation" of "aberrant behavior" in all
       the federal Courts of Appeals, since it rejected in part
       both the majority and minority rules on the issue.
       Consequently, we conclude that S 5K2.20 is
       "substantive" and, as such, off-limits for purposes of
       our review of Alvarez's case.

United States v. Alvarez-Pineda, 2001 WL 876784, at *5
(10th Cir. Aug. 3, 2001).

In sum, the Commission has not in any way indicated
that its current definition of aberrant behavior is precisely
what it meant to say (but neglected to) all along. We hold
that S 5K2.20 was a substantive change to the Sentencing
Guidelines and cannot be applied retroactively to Spinello.10

III.

Monaco Challenge Based on an "Extraordinary"
Family Situation

Spinello focuses, finally, on whether the District Court
relied on an erroneous legal standard in denying his motion
for a downward departure due to an "extraordinary
situation" which he analogizes to that which warranted a
departure in United States v. Monaco, 23 F.3d 793 (1994),
where a father had unwittingly involved his son in a crime.
"[W]e have jurisdiction to decide whether a sentencing court
_________________________________________________________________

10. Given this   disposition, we need not reach the question of whether,
had we decided   the issue differently, the commentary and one or more
of the various   exclusions to S 5K2.20 would have precluded the
application of   the guideline to Spinello.

                                 18
erred legally when not making a requested downward
departure, but we cannot hear a challenge to the merits of
a sentencing court's discretionary decision not to depart
downward from the Guidelines." United States v.
Georgiadis, 933 F.2d 1219, 1221 (3d Cir. 1991).

Spinello contends that the District Court ruled as a
matter of law that it lacked the authority to grant a
departure because of its belief that the basis for departure
in Monaco was limited to the "special relationship that
fathers have with their sons" where, here, Spinello was
invoking his relationship with his brother, Michael, and the
anguish he felt over having caused his brother to be
indicted and tried for perjury.11 Spinello claims that we
have jurisdiction to review his claim that the District
Court's narrow reading of Monaco was erroneous.

While the Court did, in fact, note that the absence of a
father-son relationship was a ground for its ruling, it did
not say that it was the only ground. Rather, the Court
stated that it was "not convinced that even if what
happened in Monaco [a conviction of a relative] happens
here, that Mr. Robert Spinello might suffer the greater
moral anguish and remorse than is typical." We consider
the District Court's statement to be a finding on the merits
that, wholly aside from its belief that the application of a
Monaco departure was limited to father-son or even parent-
child relationships, Spinello failed to show that his anguish
and remorse rose to a level warranting relief. Accordingly,
we lack jurisdiction to consider the District Court's
discretionary decision to deny the motion for a downward
departure. United States v. Nathan, 188 F.3d 190 (3d Cir.
1999).
_________________________________________________________________

11. Shortly after Robert Spinello was convicted, Michael Spinello was
charged with perjury in connection with his testimony before the grand
jury and at his brother's trial. The perjury charges related to Michael's
contention that the $3,500 found in his living room table was the
proceeds from a November 8, 1998 gambling excursion. Subsequent to
Robert's sentencing, Michael was acquitted after Robert testified that,
all
unbeknownst to Michael, he had removed $3,500 from the table on the
same day that he later robbed the bank and that his act of "replacing"
the gambling money with the robbery loot caused Michael to actually
believe that his testimony at Robert's trial was truthful.

                                19
IV.

Conclusion

For the reasons stated above, we will affirm the judgment
of conviction and sentence.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               20
