                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                          SEP 7 2001
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                         No. 01-3028
 HENRY JOHNSON,                                     (D.C. No. 00-CR-20056-V)
                                                            (D.Kan.)
          Defendant-Appellant.




                                ORDER AND JUDGMENT*


Before HENRY, BRISCOE and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The 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.
      Defendant Henry Johnson appeals from his convictions of robbery affecting

interstate commerce and aiding and abetting, 18 U.S.C. §§ 1951 and 2, and using and

carrying a firearm during and in relation to a crime of violence and aiding and abetting,

18 U.S.C. §§ 924(c) and 2. Johnson contends the Hobbs Act, as applied to the

quintessential state crime of department store robbery, is an unconstitutional exercise

of Congress' power to regulate under the Commerce Clause. He argues that, in order

for the Hobbs Act to constitutionally apply, it must be proven that the specific acts

underlying the crime substantially affect interstate commerce rather than the standard

of a de minimis showing of effect on interstate commerce applied in his case. We

affirm.

      This precise argument was recently addressed in United States v. Morris, 247

F.3d 1080, 1085-87 (10th Cir. 2001). In Morris, this court noted that established

circuit precedent had upheld the requirement of only a de minimis showing of effect on

interstate commerce for application of the Hobbs Act, even in light of the Supreme

Court's decisions in Jones v. United States, 529 U.S. 848 (2000); United States v.

Morrison, 529 U.S. 598 (2000), and United States v. Lopez, 514 U.S. 549 (1995).

“U]nder Lopez, the fact that any robbery may have had only a de minimis effect on

interstate commerce does not render regulation of that activity an unconstitutional

exercise of congressional power.” Morris, 247 F.3d at 1087. As Morris is controlling

precedent, this panel must be guided by it and Johnson's constitutional challenge of the

                                            2
Hobbs Act must fail. See In re Smith, 10 F.3d 723, 724 (10th Cir. 1993).

      AFFIRMED.

                                              Entered for the Court

                                              Mary Beck Briscoe
                                              Circuit Judge




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