United States v. Hickman

Cir.1982). (5th brief, cautioned that be sanc- States, filings. further frivolous 11 tioned for to a of Rule is limited review Appeal Id. errors. at 843. AS FRIVOLOUS. DISMISSED Although the district court asked questions to the de

many of the Rule and the record does group as a

fendants to some identify responses individual inquiries, transcript the Rule 11 guilty plea contains

Salazar-Olivares’s specifically toward him directed questions America, UNITED STATES against charge nature of the regarding the Plaintiff-Appellee, him, age, and charge, on the his guilt his plea agreement. the nature of his Sala appropriately. zar-Olivares answered Sa HICKMAN; Masontae Markus D. Cho argue lazar-Olivares does the dis Jyi McCray; pane; R. T. Lim Edwin required from Rule trict court varied Gasaway, brick; Edmond Defendants- or that he did not under procedures Appellants. any rights waiving. he was stand No. 97-40237. Moreover, counsel when the his was silent objections to its anyone court asked had Appeals, States Court of United procedure. Fifth Circuit. circumstances, Salazar-Oli- Under these June might error he have vares waived district court’s Rule 11 Dreeben, asserted about the R. of Jus- Dept, Michael tice, Ñaman, guilty plea procedure. DC, group Washington, Paul E. (5th Calverley, Stevens, Jr., States v. F.3d Keith John B. Fredrick Gib- Cir.1994) (en (a banc) Beaumont, lin, TX, error “re- waived Plaintiff-Appellee. for error”). event, in no In he can- sults Henderson, Amy R. Blal- Frank Warren proce- not even how the court’s describe ock, TX, for Tyler, Hickman. dure, case, denied him as utilized this Turkel, Turkel, Ellis Dumas & Richard knowing enter opportunity Lebleu, TX, Orange, Chopane. for voluntary guilty plea. Chambers, TX, Liberty, Alan Thomas dangers arising We envision McCray. for to details in a court’s failure to attend TX, Jr., Jay Ed- Dugas, Orange, Louis are group guilty plea setting, but there Tantzen, TX, City, Lim- Bridge ward for safeguards.against two sure error: careful brick. judicial practice vigilant counsel. As issue, Barlow, Beaumont, TX, it is friv- Salazar-Olivares raises this Milton Douglas Gasaway. olous.

The other issues raised Salazar-Oli-

vares are also frivolous.1 The Federal Defender, whose office filed this

Public vated-felony sentencing proved had two issues are conviction been 1. Salazar-Olivares’s challenges complains circuit's the law that standard. He frivolous. He about in this accept- proof beyond facts in a PSR are require circuit rule that the stated aggravated felony ed unless defendant’s of an as true rebutted reasonable doubt enhancement, evidence, findings sentencing played a but on role used for but sentencing. previous aggra- found that his his district court KING, Judge, and I Before Chief POLITZ, JOLLY, HIGGINBOTHAM, We believe that the Hobbs Act prosecu- DAVIS, SMITH, DUHÉ, JONES, tions Congress’s exceeded authority, and BARKSDALE, WIENER, EMILIO M. we respectfully dissent from aspect of GARZA, DeMOSS, BENAVIDES, judgment.1 court’s Our today concern DENNIS, STEWART, PARKER and the settled principle that Con- Judges. Circuit gress may regulate criminal conduct with a substantial effect on interstate commerce.

PER CURIAM: difficulty Our is rather with what counts in By equally reason of an divided en banc determining substantial effect. We would court, we affirm all the counts of conviction hold that substantial effects upon inter- against appellants, all and we affirm the state commerce not be achieved appellants except sentences of all Chopane. diverse, aggregating separate individual relating For the reasons to Chopane’s sen activity instances intrastate where there tence out in panel opinion, set see is no rational finding basis for sufficient Hickman, United States course, among connections them. Of Con- (5th Cir.1998), reh’g 460-62 granted and gress may protect, enhance, or restrict vacated, (5th opinion 165 F.3d 1020 Cir. particular some interstate economic mar- 1999), unanimously Chopane’s vacate ket, wheat, credit, such as those minori- resentencing. sentence and remand for travel, ty service, abortion illegal drugs, like,

and the Congress may intrastate part of a broader HIGGINBOTHAM, PATRICK E. scheme. The regula- Hobbs Act is not a Judge, Circuit with whom GRADY É. any tion of relevant interstate JOLLY, JONES, EDITH H. JERRY E. market, nor are there other rational con- SMITH, DUHÉ, JOHN M. RHESA among nections nationwide robberies that BARKSDALE, HAWKINS EMILIO M. would entitle to make federal DeMOSS, GARZA and HAROLD R. crimes of them all. Judges, join, Circuit dissenting: Between March and June various Act target any Hobbs class market, combinations of the appellants product, process, robbed or or indeed Subway Shop Sandwich Beaumont of facially ap- even commercial victims. $230, a in plies any robbery, Church’s Chicken restaurant or attempt, $1848, Jasper person entity. an AutoZone automobile Taking or a child’s lemo- $1300, parts store Beaumont of at least potentially nade is as covered as other robbery, Church’s restaurant in Beau- long least as as we are free to Chicken $1160, Dairy Queen mont of aggregate restaurant all robberies. The Hobbs Act $1300, in Silsbee of and a “regulatory Hardee’s restau- offers no scheme” which rant in Beaumont of An additional “could undercut” if individual robberies $2000. robbery aggregated. was unsuccessful. When the rob- were not 549, 561, killing, they beries escalated to a drew deep Thus, attention in East Texas. Although putting 131 L.Ed.2d 626 filed, charges were part the United States aside robberies as of an effort to Attorney regulate particular obtained federal indictments. markets The state charges pursued. guns, drugs, organized syndi- were then not crime divided, cates, Equally today the court spree affirms local can be within convictions under the Congress’s power only Hobbs Act these itself has a purely local robberies. substantial effect. quarrel Chopane's remanding

1. We have nd with the court’s deci- sentence and for resen- panel opinion by vacating tencing. sion to follow the II under robberies aggregate If one could satisfy the constitutional Act the Hobbs Supreme Court summarized As the effect substantial demand categories of “three broad Lopez, there are could merce, no reason one there would be may regulate under felonies, murders, or other at aggregate power.” U.S. its commerce “First, regulate jurisdiction Congress may over federal 1624. general to S.Ct. sustain of interstate of the channels the use in crimes great A reduction all crimes. inapplicable power Id. This merce.” have a cumula- obviously would generally victim, a river or unlike here. A interstate commerce. tively large effect a ordinarily provide highway, Marshall said Cohens As Chief Justice move. goods can “Sec- means which Wheat) (6 264, 5 L.Ed. Virginia, 19 U.S. ond, empowered to however, .:. (1821), no “Congress has of inter- the instrumentalities protect punish to murder committed general right commerce, things or persons clear, states,” and “[i]t within commerce, though the interstate even punish gen- felonies Congress cannot intrastate ac- may only come threat some Id. at 428. Without erally.” inapplicable, also tivities.” Id. This is the outer limits to judicially enforceable robbery victim is a even when a because theory, per- “it is difficult to aggregation store, instrumentality of is not an store even power, on federal ceive limitation and, commerce, car, though like boat or ... law in areas such as enforcement commerce, it in interstate does business historically have been sover- where States in interstate is not commerce. itself eign.” category third is the one must The the care here. ’The greatest address with by the authority Congress, of to grant no assistance government The offers Clause, to the Commerce “includes power. the limits of any effort to locate having activities substan regulate those in brief did not offer The Solicitor General i.e., tial relation any principled argument limit or oral in substantially affect those activities local rob- authority prosecute federal 558-59, 115 terstate commerce.” money by force— taking the of bery or omitted). (citation Yet it is not five-year-old’s hypothetical from a even that the activities of the always necessary Although govern- the lemonade stand. sub parties litigation themselves Supreme the Court ment conceded Wickard affect commerce. Since stantially limits, it that there are reaffirmed in Filburn, 82, 87 to locate limits claimed to be unable those (1942), L.Ed. 122 beyond point some redoubt aggregation principle, recognized too interstate commerce becomes nexus to Congress may reach an instance attenuated. “substantial that itself does not myriad if a of such together ly affect” commerce the tie that binds We think that have a substan aggregate instances in the be made of activities must disparate tial effect. demands con- stronger Aggregation stuff. that we are about principles

nection. explain though, This does principle, underly- are no more than to describe aggregated can be when we what activities decisions, by-product past ing theme of acts. We are to the effects add discrete path that an effort to find a coherent dangers of undue abstrac- recognize justify myriad would connects them and tion, of what it without some account but modesty prin- Its regulatory schemes. aggregate, aggregation federal means to from the root aside, principled ciple that it offers becomes disconnected we believe regu- individual acts idea that some limit. judicially enforceable they meaningfully part excise, lated because are courts have no trivial, class.”) greater whole. We would hold individual some instances of the (internal omitted). quotation where aggregated activities marks weAs see, will play the interactive of their effects there are no such is such interactive ef- fects for ability robbery. When regulation requires someone steals $100, the solely effect- attributable reach individual instances of the to that robbery on interstate commerce does not be effective. depend on many how other robberies oc- keystone similarity is not in some year, curred last nor itwill determine or essentialist sense. Whatever many effect how other robberies will oc- strength of Professor Westen’s observa- cur. concept tions about the equality, Ordinarily, say always, we would not the concept similarity of empty is “both and interactive effects will be supply-and- in confusing: ‘empty’ it derives its demand tugs activity. of economic meaning entire from normative standards Where. sought regulate protect, it; logically precede in ‘confusing’ — enhance, or particular restrict —some mar- it obscures the content of the nor- wheat, credit, travel, ket such as minority logically mative standards precede service, or abortion pointed way it has Westen, Meaning it.” Peter The of aggregation to a rational Law, Science, Math, test. It has iden- Equality in and market, tified those things affect that Reply, Morals: A 81 Mich. L.Rev. things which if subject not all regu- Merely robbery because one lation would erode the effort. Intrastate similar in to another that both are production and can aggregated, sales legislatively-selected members of the class prices goods because the of and services of activities that constitute does If, are determined interstate markets. not mean that we should examine all rob- for example, the federal government en- beries a group pur- for constitutional a price acts control to ensure sufficient poses. producers, income for it will if be thwarted Rather, least, at the individual acts can- buying goods consumers switch to in intra- not be aggregated their effects on com- produce state commerce or the goods independent merce are causally of one an- themselves. Because the instances of eco- is, if other. That the effect on interstate activity intimately nomic are connected directly commerce attributable to one in- aggregate substantially affect activity stance of an depend commerce, Congress can regulate such ac- part many how substantial other tivity. occur, activity stances of the there is an We will focus on the distinction between words, insufficient connection—in other activity. economic and noneconomic interactive effect—and the effect of differ- com-, conjured limit distinction is not If, ent instances cannot be added. on the power arbitrarily. precisely merce It is hand, other the occurrence of one instance contrary. directly follows activity of the it substantially makes more notion interdependence of causal likely or less that other instances will oc- —ulti- mately from an that aggregation insistence cur, then there is an interactive effect and rest on a principle. rational the effects of different instances principle added. It is this that we believe A meant speaks when the Court E.g., Lopez starting point. a “class of activities.” Perez v. is a useful Its States, 146, 154, reasoning suggests a distinction between (1971) (“Where 28 L.Ed.2d commercial and noncommercial class of regulated Lopez activities is and that The Court struck down the Gun- within the power, class is reach of federal Free Act School Zones 18 U.S.C. V). (1988 dissenting statement of ed., Breyer’s Justice Supp. § 922(q)(l)(A) critically differed principle aggregation “for individual it a crime Act made determining “In majority’s. from the at a place a firearm possess knowingly likely will have whether a local knows, reason- or has individual effect significant believe, zone.” school able cause to consider, merce, ef- must court con approvals of analyzing prior In (a single act instance of an fect individual em authority, the gressional but rather the cumula- gun possession), activi nature of the phasized the economic instances,” the tive effect of all similar noted, for The Court ty those cases. dissent stated. wide vari upheld that “we have example, J., From this state- (Breyer, dissenting). regulating intra Acts ety ment, a “local not restricted to notably we have economic where activity,” the rest dissent’s af activity substantially that the concluded violence, cause argument followed. Guns commerce.” Id. fected interstate education, ignorance violence hurts added). (emphasis Wick 115 S.Ct. 1624 id. at hinders commerce. See ard, activ example, “involved economic gun possession that the ity way in a rejected majority posi- Lopez The 560, 514 at a school zone does not.” U.S. by referring danger sliding tion 1624. 115 S.Ct. slippery slope: “[I]f down the proverbial accept argu- we were to the Government’s Finally, explained, pos- “The the Court ments, posit any pressed we are hard in a zone is in gun of a local school session that activity by an individual activity might, an economic that no sense 564, regulate.” without Id. at elsewhere, substantially through repetition In re- (majority opinion). 115 S.Ct. 1624 any sort of interstate affect commerce.” analysis, mode of the jecting the dissent’s 567, 115 statement S.Ct. 1624. This analytic did not announce a new Court because it characterizes important in an test. It made express framework applying to “eco- aggregation principle however, unmistakable, the proper & activity.” nomic Gerald Gunther Cf. distinguish framework must economic Sullivan, Law M. Constitutional Kathleen from noneconomic The Court did (13th ed.1997) (noting possibility 191 offering following so while concession: principle applies only aggregation that the a determination whether “Admittedly, activity, expressing without to economic activity is commercial or non- intrastate issue). Though the Court position on commei'cial some cases result explicitly only did not state that 566, legal uncertainty.” Lopez, 514 U.S. at interactive) (or ag- activities can be other 115 S.Ct. 1624. avoid- gregated, telling it is that the Court activity as “an mean that can- characterizing possession ed This does elsewhere, through repetition noncommercial might, substantially affects commerce. substantially affect sort of interstate itself Rather, de- conclude the Court commerce.”2 authority political opinion and would blur and concurring suggested 2. also a dis- A illusory.''); commercial noncom- responsibility tinction between and would id. at become activities, though 583, it did not link this ("The mercial now before 115 1624 statute S.Ct. aggregation principle. See distinction beyond regulal[es] us ... J., 577, (Kennedy, S.Ct. 1624 con- id. curring, joined by 115 ordinary usual in the and realm commerce O'Connor, J.) ("Were term.”). A sense of second concurrence regula- take Government to over Federal tion of entire areas of cern, aggregation principle directly. rejected the state con- traditional J., 600, (Thomas, 115 S.Ct. 1624 See id. having nothing areas with the do O’Connor, Kennedy, Justices concurring). activities, regulation of commercial majority opinion. joined the also Thomas spheres of federal between boundaries

235 distinction, principle of that that allows recognition mands noneconomic activi- ty aggregated. to be expansive concerning more one' inter- symbolizes, in the active effects Supreme allowing Other Court decisions principle itself. aggregation context of the congressional authority are also consistent. implied gun pos- that besides The Court Court, indeed, Lopez listed several zone, in a school school curriculum session examples of cases that involve economic rearing and child were areas be- design activity: v. Virginia Hodel Min Surface id. at 565- yond Congress’s control. See Ass’n, Inc., ing & Reclamation 452 U.S. 66, activi- 115 S.Ct. 1624. As noneconomic 264, 2352, 69 1 S.Ct. L.Ed.2d ties, aggregated, cannot' be and indi- these (coal States, mining); Perez v. United them can vidual instances of be reached 146, 1357, U.S. S.Ct. 28 L.Ed.2d 686 only they individually have a substantial (1971) (credit transactions); Katzenbach v. effect on interstate commerce. 294, 377, McClung, 379 U.S. (1964) (restaurants); L.Ed.2d 290 Heart of

B Motel, States, Atlanta Inc. v. United 85 S.Ct. 13 L.Ed.2d 258 A rule that noneconomic activities can- (1964) (inns hotels). See aggregated, not be where there are no 559-60, 115 U.S. at relevant interactive among other effects activities, those would be consistent approach We are told that our runs precedents Lopez. besides States, afoul of Russell v. United particular explained Court in (1985), 85 L.Ed.2d 829 Wickard, “perhaps how the most far in which the Court upheld federal convic reaching example of Commerce Clause au- tion for amounting conduct to arson. That thority activity,” over intrastate id. at Court, brief opinion unanimous of the how 1624, 115 properly seen as consid- ever,'did not confront a constitutional chal Act ering economic “The was lenge. statutory Rather it was an effort at volume of designed regulate Russell, 862, to wheat construction. 471 at See U.S. foreign in interstate moving commerce (alluding aggregation 105 S.Ct. 2455 to the surpluses shortages, order to avoid principle only paragraph beginning by a statute”). and concomitant fluctuation in wheat examining the “terms [of] Russell, prices, previously had obtained.” See also United States v. (7th Cir.1984), 858, 862, Congress attempting regulate Id. was a aff'd, 471 U.S. market, (1985) 2455, and it was essential to reach the 105 S.Ct. 85 L.Ed.2d 829 issue). components discrete of the market. (treating directly only statutory best, At that the government claim emphasized The Wickard Court litigants interpretive assumed the issue player farmer’s role in an dispositive, opin was and Justice Stevens’s (“ system. See id. we assume that ‘[I]f ion for the more than settle Court did no marketed, supplies is never [wheat] lower courts disagreements among the grew need of the man who it which would meaning over the of the statute. He did by reflected in the purchases otherwise be explore aggregation not venture to ”) Wickard, (quoting open market.’ thicket. 128). many at led to sus- U.S. Wickard Here, pect up- merely that the was identified a prepared Congress objectionable hold whatso- congressional legislation class of conduct— comfortably sought ever. We think Wickard fits and extortion —and has possible. with our insistence interactive ef- such conduct as far as See 18 1951; States, § compelling example. fects—indeed it is a U.S.C. Stirone 212, 215, 270, least, ambiguity L.Ed.2d At the there is sufficient U.S. (1960) (finding in the Hobbs Act “a truly over whether the conduct was eco- 252 nomic, support purpose for to use all the constitutional that it offers little or no 91 S.Ct. 1357. state crime.” interference punish has to Congress Likewise, robbery”). organized group ... if an crime by commerce together spe a market or mitted various robberies Without identification commerce, pro affected we would Congress substantially wishes property cific tect, ability prosecute to assess whether Congress’s it is difficult at best not doubt reaching for had a rational basis one of them Congress group member of the when viewed insubstantial appropriate acts that are to an statute. Such pursuant inquiry constitutional of a part alone. The relevant would be an essential prosecution now, Ho purpose. See turns on For regulatory scheme. larger (“The del, at 101 S.Ct. 2352 beyond our though, we need not venture congressional finding must defer to court interdependence. principle of economic activity affects interstate regulated that a was as the financial sharking Loan seen any rational basis for if there is organized crime. life blood finding.”). suggested rights that the civil cases invent rational Significantly, we cannot Clause, Heart turning on the Commerce Congress might have identified. bases McClung, Atlanta and can be understood Bass, 404 U.S. aggregated to have discrete acts dis- Cf. 30 L.Ed.2d 488 sure, 92 S.Ct. ex- To be the Court crimination. (“[Ujnless conveys purpose principle pressly applied aggregation sig- it will deemed to have clearly, not be activi- to the affected businesses’ economic federal-state bal- nificantly changed 300-01, See, McClung, ty. e.g., ance.”). supplied Hypothetical purposes pointed 85 S.Ct. 377. Justice Clark judiciary place counsel or the have no clog testimony before in such a sensitive area of constitutional travel worked the virtu- upon interstate balance. apartheid al of racial discrimination. See Court, 377. The id.

C however, that “while specifically also noted on the legislation focuses on economic ac- the focus of the was Though to inter- tivity, strong argument there is a individual restaurant’s relation commerce, Congress appropriately upholding congressional some of the cases may explained resting importance considered the of that connec- also be the knowledge noneconomic activities tion with the that discrimi- upon aggregation of ways. representative many The Perez nation was but of oth- interacting other Court, throughout country.” ers example, emphasized the con- (internal quotation marks sharking orga- nections between loan and 85 S.Ct. 377 omitted). nized crime. See 402 U.S. An individual offense commit- had regulation That this economic also by organized group an crime is not

ted larger goal' under- goal —of —-even isolated from other offenses committed mining a racist social norm does defeat group, and indeed the commission of that constitutionality. Lessig, Lawrence Cf. promotes the others. Loan one offense Regulation Meaning, The 62 U. Social of an of sharking important part was seen as (explaining Chi. L.Rev. 965-67 regulation For to be organized whole. Act of 1964 served to Rights that the Civil effective, government may need to be change meaning the social ascribed to the prosecute able to various intrastate of- serving by person per- a white of a black individually do not have a sub- fenses that son). acts of discrimi- Banning particular commerce. stantial effect on interstate changing ineffectual in atti- nation noted, of a perceptions “In tudes and the absence expressly course, there is a blanket ban. we do not mean setting present of the case Of inter- that has the tie-in between local loan sharks and tions, making it can thus other whenever it believes that robberies harder activity effect, however, type to commit. This of simple fact is change a social norm. The inference,” “pile seems to inference of discrimination local the context Lopez, 514 resisting a norm of racism restaurant concluding robbery that because one de- competitors to its who did not would lose another, Congress aggregate ters again thus once economic change. is them, downright seems bizarre. finds its sustenance regulation that Congress enact- power. commerce When might argue robbery One is eco- provision it public ed the accommodations nomic because involves the transfer of discrimination, acts of each confronted money property or from the victim to the Only with cumulative economic effect. be- account, any robber. On this such trans- directly acts were connected cause these activity fer interacts with all other in the they form a wall of and interlaced could system aggregable. economic and is thus resistance, cemented sometimes economist, eyes While to the such discrimination. perpetuated laws world, law, web, like the ais seamless separate activity must con- properly

D activity sidered economic from other having while some connection to economic train of un- Catching government’s activity properly part is not considered yielding power, creative defenses of its one system of the economic itself. We must might argue robbery that each incident of beyond thus look our definition of interac- society likely hardens and makes it more tivity develop an account of what “eco- Accepting that other robberies will occur. is, activity” embracing nomic here without argument would allow suggestions Gary of Becker and other regulation activity— of disfavored way that all in one economists quite government’s argument close to the “economic.” theory another Economic Though in this an individual act of case. development forms and assists robbery may resigned make us more constitutional doctrine —but it is not and crime, inevitability diverse robberies organic claim to limit causally rationally cannot be said to be government. Thus, if dependent one another. vari- aggregated, they original understanding ous robberies are to be of “com- need to constitute economic source for such an provides would merce” one they persuasively We would hold that do not. account. As Justice Thomas original the time the Consti- argued, “[a]t Perhaps plausible argument the most ratified, tution was ‘commerce’ consisted is that it well as selling, buying, bartering, prices goods has an effect on sold on Lopez, transporting purposes.” for these interstate markets. Because some robber- (Thomas, 585, 1624 514 U.S. at 115 S.Ct. business, doing ies increase the cost of course, J., Supreme dissenting). Of robbery prices all argument goes, causes understanding of Court’s “commerce” argu- to rise and is thus economic. This production, entailing to include grown ment, however, circular. It seeks to is services, manufacture, all agriculture, and that aggregate robberies on the basis economic ac- unquestionably of which are aggregated, those robberies were sub- understanding original tivities. While the stantial on commerce can be dis- effect juris- yield Supreme Court’s must ap- question, cerned. The under our they prudence, aligned, where are proach, is whether robberies interact with wary choosing a different ought to be in it way one another that makes rational path. in Act cases. to sum their effects Hobbs original in the robbery causes There is no basis either might argue One that each in- or in the case law for security precau- understanding to take additional victims 238 informing activity. police power within the is an robbery in economic

eluding resolving ambiguity. Be- buying, or means of Robbery selling, is not barter- is at robbery’s cause “economic” status anything. It produce it does not ing, and uncertain, robbery that is a tradition- resources, best transfer of only effects police power buttresses our target al transfer at that. makes involuntary robbery conclusion that is not economic wanted sense that the Framers aggre- that cannot be and thus robberies against to be able to strike balkanization gated. qualitative judgment, is a true This legislating, regulating for pro- enough. never-ending Yet the task of in- the terms for economic Congress sets government would be tecting our federalist Robbery implicate teraction. only of a sorely purchase weakened terms, robbery everywhere quantitative set. single party to de- unlawful decision involuntarily property. of his prive another Ill of commerce is “commercial The essence (9 intercourse,” pause possible 22 We consider other Ogden, v. U.S. Gibbons Wheat.) 1, 193, (1824), the Commerce yet terpretive approaches 6 L.Ed. 23 robbery exchange. explain preference. there is no Clause and to our held, circuits have even after Other strong are all reasons to conclude These un- that a de minimis effect on commerce activity in robbery is not economic constitutionally Act is suffi- der Hobbs sense, arguably relevant but we do not reasoning cient. of their is concluso- Some analysis today. need this See, Stillo, ry. e.g., v. 57 United States accepted, in Lopez indeed took for (7th Cir.1995) n. 2 (stating F.3d 558 family law granted, education type Act ... aimed at a the “Hobbs within commerce. were not See U.S. extortion,” activity, of economic without Along why explaining extortion should count regulation pos of crimes such as firearm activity”); v. “economic United States session, control over these areas tradition (8th Cir.1996) Farmer, 73 F.3d ally police power falls under the of the (“We have no doubt of the of Con- necessary majority states. The believed gress protect from violence businesses truly what is na distinguish “between chain.”); of an part are cf. local,” truly tional and what is id. at 567- Atcheson, F.3d police power and the (9th Cir.1996) (assuming, explana- without provides rough guide. Stone Mis Cf. tion, that directly “the Hobbs Act is aimed 814, 818, sissippi, 101 25 L.Ed. activities”). at economic far (noting conceptually it is simply aggre- easier to determine whether an Other cases assume that activities, police gation within the than it all ac- applies falls is to without provide police knowledging an accurate dis- approvingly definition power). aggregation principle only We would hold that cussed the See, police power. conjunction likewise in the realm of the with economic Bolton, e.g., United States v. The federalization of criminal law is a (10th (“if Cir.1995) regulates a statute See, e.g., recent innovation. Task Force which, through repetition, Law, on the Federalization of Criminal has a substantial affect aggregate [sic] Ass’n, American Bar The Federalization of ”) commerce ... (emphasis interstate add- police Criminal Law 7-9 The ed). question None answers the of who power may regulation include some game. decides what to count in the sums activity, criminal economic and such activi- circuit, ty aggregated. panel could be But where there A in United States (5th Robinson, 1205, ambiguity activity as to whether certain 119 F.3d 1210-15 economic, Cir.1997), ul- properly recognized whether that would be a with there was rational Court was concerned connections be- tímate test is whether id. at action. See tween activities and commerce that basis for seem characterizing attenuated, this standard Though Court, Lopez too and the see “deferential,” recognized 566, panel quoted ” ' “ ‘[djeference acquiescence.’ Id. Steel, Laughlin earlier remark in & Jones Knutson, 113 (quoting 1, 37, 81 L.Ed. 893 curiam)). (5th Cir.1997) (per (1937), F.3d congressional power under the however, recognize failed to panel, necessarily Commerce Clause “is one of conceptual ques- applied that when degree.” interpretation think the We summed, may be tion of what effects making trouble the Supreme sense of can have bite. In the rationality test signal Court’s that courts will need to dis- case, acknowledged that panel stant tinguish commercial and between noncom- are not the sort of eco- “local robberies end, mercial In the though, we legitimately that can nomic agree that when the Supreme Court has in for traditional eco- aggregate viewed test, explicitly finding announced ma- impact analysis purposes,” nomic jestic pronouncements in a sentence or two but was bound Robinson. arguments of its has the earmark of a Rudyard Kipling “just story. so” event, fight will not straw In we Rather, will examine the five men. approach Our concern about this is that approaches that we interpretive alternative At is not line or test. best it is uphold- promise believe offer the most descriptive of an outcome that lacks an ing Hobbs Act convictions local robber- identifying con- supporting principle. Any takes com- approaches ies. Each of these A trary suggestion is illusion. domestic cases, but we fort one or more crime homicide can be made a federal be- wanting. nonetheless find each We Battery victim is a wage time the earner. fairly treats approach lieve that our both yards doing within five of a store hundred and offers a clearer basis for the cases might business in interstate commerce also Congress’s power. reach of delineating the adultery even in a regulated. Perhaps hotel room rented interstate commerce A A could be made federal crime. court The most ambitious defense of Con- far, might go find that these too the con- power here denies that there must gress’s But we cannot be nection too attenuated. among be connections discrete activities they why beyond the conclusion that sure Lo- aggregated. for those activities to be it.” they “know it when see view, announces a sort of pez, on this Indeed, approach is so ill-defined test, permitting regula- proximate cause clear it should allow that it is not even when aggregated tion of activities that here. prosecution of the robberies Such percep- that is have an effect on commerce prosecuted been under robberies have inference infer- “pil[ingj tible without theory, the notion that depletion-of-assets See, Merritt, e.g., ence.” Deborah Jones money victims will have less Commerce!, Mich. L.Rev. purchases to make can be read as (arguing absurd, effect, while not commerce. This jurisprudence shifting Commerce Clause and victims without probabilistic, is at best to a more purely quantitative from a test well write liquidity problems might severe one). qualitative The connection between buy the loss and as before. off per- and commerce can be guns schools infer- only through ceived the series of proxi- problem. There is another Breyer offered. ences that Justice applies its limits af- approach mate cause imply unsup- aggregation. ter This seems not claim that this is We do all anything aggregated. can be Can reading Certainly, portable Lopez. scenario, aggregated together? be each factual a ‘substantial’ rather crimes of violence leap, than a com all crimes? It takes no ‘concrete’ effect on interstate How about inference, Harrington, to conclude merce must be shown.” no inference Indeed, that crime a whole has a substantial F.3d at 1467. Court as Surely ap- such an noted that the Gun-Free School Zones Act effect on commerce. right jurisdictional to “has no element proach give express magic might But what limit its reach to a discrete regulate all crime. all them to that ... an possessions about robberies that allows set of firearm have together, grouped explicit rather than lumped connection or effect on inter commerce,” 561, 115 any a depending into subclasses on proximate omitting requirement variables? A cause number of ultimately supple- needs approach to be effect be “substantial.” limiting scope test mented some matter, preliminary As a we do not aggregated. what can be scaling think back to an insubstantial but appropriate is an crea- Proximate cause concrete effect could make a difference legislatures ture for law. Because tort jury here. The was allowed to convict judges precisely cannot define the con- any based on indirect effect on liability, juries leave it to tours of and there was no evidence of concrete supply vague legal common sense to stan- significantly, Harrington effect. More dards, judicial with occasional intervention. only conclusion that a concrete effect on necessarily What works for torts does not commerce need be shown mistakes the work for constitutional law. If we leave failure mouth Supreme Court’s “sub- proximate cause determinations to Con- repeatedly stantial” subtle limitation then it will be able to find gress, some holding. explicitly on the The Court held justification virtually any legislation. proper requires analysis that “the test And we leave such determinations to of whether the regulated activity ‘substan- courts, give then we can little advance commerce,” tially affects’ interstate rule, guidance Congress. With 514 U.S. at without course, case-by-case interpretation some is mentioning aggregation principle. inevitable. But some tests are clearer Indeed, approach this threatens to rein- than others. troduce the discredited direct-indirect dis- jurispru- tinction into

B Commerce Clause dence, guise. albeit a new It would argument Another that would find fed allow direct effects that are not substan- prosecution eral of local robberies reacha tial, requiring while indirect effects to be appears ble under the Commerce Clause pickpocket substantial. A who steals Harrington, token, subway causing his victim to walk (D.C.Cir.1997), again home, could potentially federally prose- (2d Farrish, States v. 122 F.3d 146 Cir. cuted, while someone who lifts $100 1997). argument puzzle avoids the rich change spending owner too his aggregation, maintaining ment of that be patterns not. result could There is no jurisdictional cause the Hobbs Act has a reason to think the Supreme Court intend- element, any concrete effect anything ed of the kind. commerce is sufficient. jurisdictional jurisdictional Where a statute has ele A element itself cannot ment, maintains, argument “each case save a statute that exceeds authority. jurisdictional stands alone on its evidence that a con element exist, specific way crete and effect does and we must in some be meaningful, and the authority can find no controlling suggest specified condition that, ing that require meaningfulness courts must as to for its substantial ef

241 “§ merce” under a statute is different from 922(q) noted that The Court test. fects is “in commerce” for constitu element whether one jurisdictional express no has 562, 115 reach,” purposes. tional at limit its id. might added), never but (emphasis 1624 S.Ct. references to its Even the Court’s any jurisdictional element stated jurisprudence mean Commerce Clause would “affecting commerce” words offering seen as that Robertson is to be adequately. its reach limiting succeed holding implicit holding, constitutional this reaffirming interpreted

is better “reg- category Lopez, first C of interstate ulate the use of channels reject suggestion We also commerce,” 558, at 514 U.S. 115 S.Ct. the convictions government 1624, dramatically expanding than as the three the second of upheld based on exam- The Court offered several second. in Lopez, the categories identified Robertson conducted activities ples of how protect the instrumentali- “to and using the channels of interstate commerce. commerce, persons or or ties of interstate occa- example, For more than one “[0]n even in interstate things sion, sought Robertson workers from out only from threat come though the brought state and them to Alaska to 558, 115 activities.” 514 U.S. at intrastate 671, mine.” 514 115 work U.S. theory government’s 1624. S.Ct. Moreover, S.Ct. “in victims were that the the statute was an investment of violated inventory they purchased merce” because equipment in one for that was money outside Texas. We view supplies another state. id. at transported to See encompassing only vehi- category 670, 115 S.Ct. 1732. move in interstate cles that move or could goods traveling or people commerce D 558, 115 1624 See id. at S.Ct. commerce. Cases, Rate 234 U.S.

(citing Shreveport one, government Category which the (1914); 833, 342, L.Ed. 1341 S.Ct. in this press, apply not also does not does States, 222 U.S. R. Co. United Southern applica- strongest argument case. (1911)). 2, 32 S.Ct. 56 L.Ed. category govern- is that tion of this for “re- may prosecute someone ment maintains that Unit The United States affecting ... in commerce ceiv[ing] Robertson, 669, 115 ed States “if it commerce” a firearm demonstrates (per L.Ed.2d 714 previously the firearm received curiam), just days after decided Bass, in interstate commerce.” traveled involved analysis. Robertson supports 515; pro of narcotics illegal investment 563, 97 Scarborough, 431 U.S. States v. ceeds, investment and narcotics and both These L.Ed.2d 582 undoubtedly economic. trafficking are cases, however, are also exercises statu- however, held, did The Court constitutional, interpretation. tory, not “affecting commerce” need to consider the a difference between anyway There is because the commercial ac jurisprudence an item that has possession of banning in were engaged Robertson was tivities protecting a in commerce and id. at traveled interstate activities. See themselves items Instead, purchases person or business the Court 115 S.Ct. 1732. we need commerce. While “engaged in interstate that Robertson had concluded one, it category a test for develop here meaning of 18 within commerce” if the latter nexus 1962(a). note that does suffices to § But this conclusion U.S.C. regu- could enough, then category two were that Robertson is not mean activities, wearing say, people late the in com “engaged one is case. Whether statute, § in interstate commerce. to purchased 922(g)(1), clothes session 18 U.S.C. one, statute, in expressed Lopez, machine-gun as nota- the federal 18 U.S.C. Category 922(o). § Congress protect disagree. Typical prosecu- not entitle to We bly does justifiable those who from time to otherwise tions for these statutes are ei- commerce, time use the channels of 'and ther under our test or under one of the broadly. power. see no reason to read it so other branches of the commerce Act, in Congress

But the Hobbs has not E identified, find, and probably cannot aggregation rational basis for that would reject a rule that would We also would government prose- entitle the federal to way, long as Congress allow have cute local In purely demanding robberies. legislative findings it made sufficient Congress the qualitative accommodate certain conduct affected commerce. The principle of our federalism that local crime Supreme Court mentioned absence of states, today be left to the we do no more findings in the School legislative Gun-Free than Congress, identify insist that a non- 562-63, Zones Act. 514 U.S. at See pretextual, rational concluding basis for promise 115 S.Ct. 1624. But it did not that there are sufficient interactive effects findings such of “substantial ef- among aggre- activities to allow them to be judi- legislation fect” would immunize gated. Lopez says Today there is a line. scrutiny. merely cial indicated that we must draw that line. findings might make a difference “to the [they] extent that would enable us to eval- recently, fifty years judicial Until def- legislative judgment uate the that the ac- erence committed to the political branches question tivity substantially affected power to define the limits of their though terstate even no power under the Commerce Clause. To substantial effect visible to the naked was sure, the judiciary occasionally has eye.” (emphasis 1624 role, grasp claimed a but its on each occa- added). See also id. at 115 S.Ct. See, slipped away. e.g., sion has National (“The (Souter, J., dissenting) question League Usery, Cities 426 U.S. courts, for the all agree, is not whether (1976), 49 L.Ed.2d 245 over- predicate as a legislation Congress by ruled Garcia San Antonio Metro. fact found that a particular activity sub- Auth., Transit commerce.”). stantially affects interstate 1005, 83 L.Ed.2d 1016 today, Even Lopez tell us that the Commerce Clause is government says in effect political question wholly not a committed Congress what that al- discretion and is, say subject only the President to the though legislative findings are a useful vague most and thin constraints. prelude analysis, to a constitutional sidelines, judicial repair This has point some constitutional doctrine must police left itself. With the take over. increased federalization of traditional state crimes, the consequence acquies- of this IV judiciary cence of the large. looms Not horribles, government parades list- surprisingly, the overlapping increased ing statutes that it asserts would fall with traditional state criminal statutes taxes the our upon rationality aggrega- insistence institution of Article III courts. tion, statute, from the federal arson 844(1), § gambling U.S.C. to the federal That the federal courts were created as statute, 1955; § jurisdiction U.S.C. from the federal courts of limited is no histori- money statute, laundering happenstance, cal III quirk U.S.C. some of Article statute, § to the federal carjacking without reflection elsewhere the Consti- 2119; § Rather, 18 U.S.C. from the felon-in-pos- jurisdiction, tution. their limited by adding a reachable cution jurisdiction general against set Act— government’s And rea- single It is line. courts, federalism. integral to our virtually all overwhelming per- that includes robber- soning, state courts judge not' the extent always been ies. need litigation all We centage of yet remains play cannot which the commerce Federal courts conducted. to be to conclude that they political question are ra- nigh historical role vital their courts, to the exercise trying tionality gate the remains of major criminal as cast assaults, authority robberies, murders, power and extortion even congressional politi- states. no than its free of the be limited more historically province the (or reading) the Com- cal will. reading not And without locatable support to

merce Clause the Hobbs Act convic- We would reverse of overlap jurisdictional limits federal tions. inevitably crimes traditional state these only by the federalization —checked breeds DeMOSS, Judge, specially Circuit conspicu- here Congress, of self-restraint dissenting: is a serious so- That crime ously absent. dissenting join Judge I Higginbotham’s mean that it is cial concern the mandate He has heeded of opinion. matter. a federal that circumstance in and has un- the vertical movement Resisting this demarcating task of dertaken the arduous way steps in no to federal courts of power, the “outer limits” of federal dis- defining in the role congressional the upon truly is between “what national tinguishing courts, ham- a role jurisdiction of federal local.” United States v. truly what is and Compromise. from the mered Madisonian Lopez, and con- may expand By design, Congress The inter- 131 L.Ed.2d 626 juris- diversity question and federal tract espoused Judge principle action diction, rea- political for the of and rawest is a much needed Higginbotham’s opinion about the Founders sons. The concerned of injecting some measure ra- step toward could be confident vitality of state courts tionality process. into that jurisdiction Congress to define allowing however, because the separately, I write organic exter- they knew that because Act the Hobbs ex- debate over present I would cabin constraints of Article nal whether beyond issue of well tends state courts. legislation protect may, conceptual in this robberies case with the proved to be problem matter, Aggre- a class. aggregated as grant Congress to define power of case, aspect important is an gation jurisdic- question courts of federal federal truly But determinative be sure. Rather, judicially it the absence of tion. lost I fear one which question, of Con- limits enforceable aggregation, in- over the abstract debate the Commerce Clause gress under teraction, and the interdependence, causal into traditional bod- ject question a federal like, this case whether conduct of state criminal law. ies “substantially affects use The ad hoc and random all, standard, after merce.” local robberies prosecute Act to Hobbs touchstone, and is our constitutional reach of federal the dramatic masks control the out- ultimately which should The full them. force required sustain 560, 115 S.Ct. Id. of this case. come authority, assertion of government’s summing irrationality of I have written years several past In the it, by the is unmasked undergirding effects robberies of the why local length the Act application if this reality that “substantially affect do sustained, grant present sort could also were States interstate commerce.” prose- all jurisdiction to federal exclusive (5th Cir.1997) (De Hebert, 131 F.3d 514 event bears on our national Moss, J., dissenting part); United commerce. Miles, (5th Cir.1997)

States v. F.3d 235 Thus, join while I Judge Higginbotham’s (DeMoss, J., specially concurring). And dissent, I my continuing reiterate belief I repeating. the reasons have offered bear the applicability of the Hobbs Act determining In a class of activi- whether should be determined with these more ba- substantially ties affects interstate com- principles. sic merce, we of course look to legislative

record for evidence of find-

ings Judge effect.

Higginbotham states in his dissent identify did not the market to protect by passing

wished the Hobbs Hickman, Act. United States v. L (5th Cir.1999) J., (Higginbotham, dis- NEXT LEVE COMMUNICATIONS senting). I beg legisla- But to differ. The LP; Manager LLC; KK General In history tive replete the Hobbs Act is Corporation, formerly strument Congress evidence that passed the Systems known as Next Level Incor highway statute to combat robberies porated; Spencer Company Trask & which, labor union members at the rate of Incorporated, Plaintiffs-Appellees, 1,000 per day, more than were having a impact considerable on interstate Miles, (DeMoss, merce. F.3d at 244 J. DSC COMMUNICATIONS CORPORA However, dissenting). nothing in TION; leg- Technologies Corpora DSC history islative Hobbs Act indicates tion, Defendants-Appellants. was concerned with local No. 98-40682. robberies of retail establishments. There absolutely legislative no history suggest- of Appeals, ing that retail robberies were having a Fifth Circuit. substantial effect on interstate commerce. June Consequently, simply there is no rational concluding basis for that Congress found stores,

that local robberies of retail wheth- not, aggregated

er have a substantial

affect on interstate commerce.

In the absence of legislative history sup-

porting the extension of the Hobbs Act to robberies,

local we are plain left with the

language of the statute. IAs have ex- cases,

plained in previous it is clear from wording of the statute that “com-

merce” refers to intercourse between the Hebert, 528-29; Miles,

states. F.3d F.3d at 245. thus meant sense,

“commerce” in ordinary flow goods people across state lines.

surely did not intend some metaphysical

interpretation, taking where the of money register

from a cash purse or attendant’s magically

becomes transformed into an

Case Details

Case Name: United States v. Hickman

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 21, 1999

Citation: 179 F.3d 230

Docket Number: 97-40237

Court Abbreviation: 5th Cir.