The principal issues in this direct criminal appeal are whether the Hobbs Act is a constitutional exercise of Congress’s power to regulate interstate commerce; and if so, whether the Act is constitutional as applied to a defendant whose conduct, viewed in isolation, does not substantially affect interstate commerce.
The Hobbs Act makes it a federal offense to impede interstate commerce through robbery or extortion. The appellant, relying on
United States v. Lopez,
Applying the lessons of Lopez, we hold that the Hobbs Act is a permissible exercise of the congressional power to regulate commerce among the states. Our holding aligns us with every other circuit that has addressed the issue. 1 We further hold that in Hobbs Act prosecutions based on local activities that affect interstate commerce, the government need not prove that the effect of an individual defendant’s conduct was substantial. It suffices to show a slight effect in each case, provided that the defendant’s conduct is of a general type which, viewed in the aggregate, affects interstate commerce substantially.
Although we affirm appellant’s convictions, we vacate his sentence, which was erroneously enhanced on the ground that his victims, Asian-American merchants, were unusually vulnerable.
I. FACTUAL AND PROCEDURAL BACKGROUND
In the spring and early summer of 1995, several small businesses in the Dallas area were victimized in a series of crimes that became known as the “driveway bank robberies.” The victims were owners and employees of liquor stores, convenience stores, and other retail and service establishments. The stores provided check-cashing services; the record reflects that the stores cashed out-of-state checks, payroll checks, and government benefit checks. The record also reflects that several of the stores sold products that had been shipped to Texas from other states. The victims testified that they suffered substantial business losses as a result of the robberies; one store was forced to close permanently for lack of capital, and the others were unable to cash checks for a finite period of time.
The robberies were carried out through a relatively sophisticated technique known as “jugging,” in which the perpetrators reconnoitered the stores, learned their business routines, and struck immediately after the victims had made substantial bank withdrawals for use in cashing their customers’ checks. Typically the robberies took place in the commercial drive-up lane of the bank or in the parking lot of the store as the owner or employee returned with a cash withdrawal.
An investigation by a violent crimes task force comprising FBI agents and Dallas police officers led to the arrest of the principal suspect, Ernest Thompson, on July 1, 1995. Arrested with Thompson was the appellant, Anthony W. Robinson, who subsequently made several self-incriminating statements to investigators. Thompson eventually pleaded *1209 guilty and testified for the prosecution at Robinson’s trial. A money-laundering charge against a third defendant was dropped.
Robinson was indicted on charges of conspiring to violate the Hobbs Act and aiding and abetting three robberies in violation of the Act. 18 U.S.C. §§ 1951(a), 2. The victims testified at trial that these robberies caused business losses of approximately $5,000 each to Maple Convenience Store and West End Liquors, and $60,000 to S & S Foods. Each Hobbs Act robbery count was accompanied by a count alleging that Robinson aided and abetted the possession of a firearm during a crime of violence. 18 U.S.C. §§ 924(e)(1), 2. Two of the three firearm counts were dismissed by the district court. Before trial, the government dismissed a separate count charging Robinson as principal in a fourth Hobbs Act robbery.
After a jury trial, Robinson was convicted on the remaining counts: Hobbs Act conspiracy, aiding and abetting three Hobbs Act robberies, and aiding and abetting one firearm violation. He was sentenced to a prison term of 210 months on the Hobbs Act counts and a consecutive 60-month term on the firearm count. He appeals his convictions and his sentence.
II. CONSTITUTIONAL CHALLENGE TO THE HOBBS ACT CONVICTIONS
A. Introduction: First Principles
We are mindful of the “first principles” articulated by the Supreme Court in
Lopez:
that the national government is one of enumerated powers, and that the division of authority between the national government and the states is intended to preserve the liberties of the people.
At the same time, we recognize the broad sweep of Congress’s constitutional authority “[t]o regulate [cjommerce ... among the several [sjtates,” and its concomitant power to protect the nation’s commerce by enacting such laws as it deems “necessary and proper.” U.S. Const, art. I, § 8, cl. 3, 18;
see also Katzenbach v. McClung,
Against this backdrop, we do not read
Lopez
as counseling a return to a “horse-and-buggy definition of interstate commerce.”
2
As Justice Kennedy, joined by Justice O’Con-nor, pointed out in his
Lopez
concurrence:
*1210
Lopez,
*1209 The history of the judicial struggle to interpret the Commerce Clause during the transition from the economic system the Founders knew to the single, national market still emergent in our era counsels great restraint before the Court determines that the Clause is insufficient to support an exercise of national power.
*1210 As Justices Kennedy and O’Connor recognized, our federal structure exists in more than one dimension. The courts must be vigilant to prevent Congress from asserting powers not delegated to the national government by the Constitution, but must themselves avoid usurping the national legislature’s policy-making role in the commercial sphere. As the next section makes clear, the Constitution’s delegation to Congress of the power to regulate the nation’s commercial life commands a significant degree of judicial deference.
B. Standard of Review and Level of Scrutiny
We exercise plenary review of the district court’s legal conclusion that the Hobbs Act is constitutional, and we review the statute itself under the deferential “rational basis” standard. The latter point bears emphasis. In the wake of
Lopez,
courts are less likely to take congressional invocations of the commerce power at face value, at least when the regulated activity’s relation to interstate commerce is “[injvisible to the naked eye.... ”
Lopez,
However, nothing in Lopez suggests that the Supreme Court has replaced the rational basis test with a more exacting standard. To the contrary:
[T]he Court made clear that federal Commerce Clause legislation continues to merit a high degree of judicial deference, and that courts considering the constitutionality of such legislation should apply only ‘rational basis’ review. Accordingly, we must limit our inquiry to a determination whether Congress could have had a rational basis to conclude that its enactment of [the statute] was a valid exercise of its commerce power.
Id. (footnotes and internal citations omitted; emphasis added).
We are thus bound to uphold the Hobbs Act if Congress could have had a rational basis for concluding that its enactment was valid under the Commerce Clause. The Lopez Court catalogued three principal ways in which Congress may validly exercise its constitutional power to regulate interstate commerce. Before considering the Hobbs Act itself, we turn to the Lopez decision and its taxonomy of the commerce power.
C. Lopez and the Three Categories of Commercial Legislation
The statute at issue in
Lopez
was the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q)(l)(A), which made it a federal crime to possess a firearm in the vicinity of a school. Alfonso Lopez, Jr., a twelfth-grade student at Edison High School in San Antonio, had been arrested for carrying a handgun and five bullets to school. This court reversed his conviction for violating the Gun-Free School Zones Act, and the Supreme Court affirmed, holding that the statute was unsupported by the congressional power to regulate commerce.
United States v. Lopez,
The
Lopez
Court described “three broad categories of activity” that Congress may regulate under the commerce power.
The second category comprises “the instrumentalities of interstate commerce, or persons or things in interstate commerce.”
Lopez,
Finally, the commerce power “includes the power to regulate those activities having a substantial relation to interstate commerce,
i.e.,
those activities that substantially affect interstate commerce.”
Id.
at 558-59,
In
Lopez,
the Supreme Court quickly dismissed the possibility that the Gun-Free School Zones Act fell within either of the first two categories.
Lopez,
We think Lopez makes clear that legislation concerning an intrastate activity will be upheld if Congress could rationally have concluded that the activity, in isolation or in the aggregate, substantially affects interstate commerce. This standard will almost certainly be met if a statutory jurisdictional element ensures that an effect on *1212 interstate commerce must be proved in each case. Even in the absence of such a statutory requirement, we will uphold the challenged statute if the regulated conduct’s connection to interstate commerce is manifest, i.e., “visible to the naked eye.” If we do not readily perceive a clear connection to interstate commerce, we may nevertheless uphold the statute if the nexus is satisfactorily explained by congressional findings or the legislative history. Conversely, if the statute, the congressional findings, and the legislative history provide no .rational basis for concluding that the regulated activity has the required nexus to interstate commerce, the statute must fall.
D. The Hobbs Act
The Hobbs Act imposes criminal penalties on anyone who “in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion[,] or attempts or conspires so to do.... ” 18 U.S.C. § 1951(a). The statutory definition of “commerce” is co-extensive with constitutional limits; the Act defines “commerce” to include “all commerce between any point in a State ... and any point outside thereof; ... and all other commerce over which the United States has jurisdiction.” 18 U.S.C. § 1951(b)(3).
There are thus two elements in a Hobbs Act prosecution: (1) a robbery, act of extortion; or an attempt or conspiracy to rob or extort; and (2) an interference with interstate commerce.
Stirone v. United States,
The Supreme Court long ago upheld the Hobbs Act against a Commerce Clause challenge, reasoning that the statute “is directed at the protection of interstate commerce .... ”
United States v. Green,
E. Constitutionality of the Hobbs Act under Lopez
The Hobbs Act differs from the late Gun-Free School Zones Act in critical respects. The Gun-Free School Zones Act concerned an activity, gun possession in and near schools, which bore no evident relation to interstate commerce. In contrast, the nexus between robbery and commerce is obvious: a successful robbery results in the transfer of money or goods from the victim to the perpetrator. Where, as in this case, the money belongs to commercial establishments engaged in interstate commercial transactions, *1213 the connection between the crime and interstate commerce is not difficult to discern.
In addition, the Hobbs Act includes an express jurisdictional element of the sort conspicuously lacking in the Gun-Free School Zones Act. This requirement explicitly limits the scope of the Hobbs Act to those robberies and extortion schemes which affect interstate commerce.
Compare Lopez,
Appellant nonetheless invokes Lopez to challenge his Hobbs Act convictions on several grounds. Appellant’s terminology is none too precise, but we understand him to be making three distinct arguments. First, he claims that the Hobbs Act is unconstitutional on its face because it allows convictions on evidence of less than a substantial effect on interstate commerce. Second, he argues that the Act is unconstitutional as applied to a broad category of cases, including this one, involving local crimes whose effect on interstate commerce is less than substantial. Finally, he argues that the indictment, evidence, and jury instructions were deficient because they did not adhere to the substantial effect requirement.
1. Appellant’s Facial Challenge
For appellant to prevail on his claim that the Hobbs Act is facially unconstitutional, he must establish that there is no set of circumstances in which the Act could be applied constitutionally.
See Barnes v. Mississippi,
This places a heavy burden on the appellant. “A facial challenge to a legislative Act is ... the most difficult challenge to mount successfully.”
Webster v. Reproductive Health Services,
Appellant seeks to establish that the Hobbs Act is invariably unconstitutional in application by following the Supreme Court’s reasoning in Lopez. He claims that the Hobbs Act, like the Gun-Free School Zones Act, neither regulates the use of the channels of commerce nor protects persons and things in, or instrumentalities of, interstate commerce. He then purports to explain why the Act cannot be applied constitutionally as a regulation of intrastate activities which substantially affect interstate commerce.
This argument is utterly misguided. It relies on the unsupported assumption that the Hobbs Act can be applied constitutionally, if at all, solely under the third branch of the commerce power. We think it obvious that in various factual settings, the Act proscribes conduct which Congress may reach under the first two branches of the commerce power. For example, a Hobbs Act prosecution for hijacking a truck and its cargo on an interstate highway surely could be upheld under either the first or second branch of the commerce power.
On that basis alone, appellant cannot meet his burden of establishing that the Hobbs Act is invariably unconstitutional in all factual circumstances. 6 Moreover, as we *1214 explain below, the Hobbs Act can be applied constitutionally under the third branch of the commerce power, given the requisite effect on interstate commerce. Because there are circumstances in which the Hobbs Act operates constitutionally, we reject appellant’s facial challenge.
2. Appellant’s As-Applied Challenge
The main thrust of appellant’s brief is that the Hobbs Act is unconstitutional as applied to intrastate activities, such as the subject robberies, which affect interstate commerce. His theory with respect to this genus of Hobbs Act prosecutions is simple and rather elegant; we view it also to be wrong.
Appellant contends that because a specific Hobbs Act conviction requires only an “effect” on interstate commerce, the Lopez requirement of a “substantial effect” in cases involving intrastate activity is not met. The government responds that even if the substantial effect test applies, the Hobbs Act passes it. 7
In determining whether the effect of a regulated activity on interstate commerce is substantial, courts must look to the cumulative effect of all similar instances of the regulated activity, carried on in different places by different persons. Lopez did not undermine this principle, which was articulated decades ago in Wickard v. Filburn. To the contrary, the Lopez court categorically stated:
Where a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.
Lopez,
The third branch of the commerce power would be negligible if its exercise were limited to particular incidents, each of which individually has a substantial effect upon the nation’s commerce. Under this straitened interpretation of congressional power, such clearly established uses of the commerce power as the
mining
legislation in
Model
and the civil rights legislation in
McClung
would be called into question. As our court has noted, however,
Lopez
“did not purport to eliminate or erode well-established Commerce Clause precedents.”
Knutson,
It is a bedrock principle of modern Commerce Clause jurisprudence that Congress may regulate a category of activity whose many instances, taken together, substantially affect interstate commerce. The Court explained this aggregation principle in McClung, a case involving a restaurant which bought meat from a local supplier who in turn was supplied from out of state. The Court observed:
It goes without saying that, viewed in isolation, the volume of food purchased at Ollie’s Barbecue from sources supplied from out of state was insignificant when compared with the total foodstuffs moving in commerce.
*1215
That appellee’s own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.
Id.
at 301,
[I]n deciding the constitutional power of Congress in cases like the two before us we do not consider the effect on interstate commerce of only one isolated, individual, local event, without regard to the fact that this single local event when added to many others of a similar nature may impose a burden on interstate commerce by reducing its volume or distorting its flow.
The Tenth Circuit relied on this aggregation principle to uphold the Hobbs Act against a Lopez-based challenge.
See United States v. Bolton,
We find the reasoning of Bolton unassailable. We agree that under the third category of the commerce power described in Lopez, the particular conduct at issue in any given case need not have a substantial effect upon interstate commerce. Congress is free to act — and the government to apply the law — so long as the regulated activity, in the aggregate, could reasonably be thought to substantially affect interstate commerce.
Appellant’s as-applied challenge to the Hobbs Act collapses in the face of the aggregation principle. Every robbery or act of extortion in violation of the Hobbs Act must have an effect on interstate commerce; the Act’s express jurisdictional element ensures this. It follows with the inexorable logic of the multiplication table that the cumulative result of many Hobbs Act violations is a substantial effect upon interstate commerce. Unlike gun possession in a school zone, robberies affecting interstate commerce are precisely the sort of acts “that might, through repetition elsewhere, substantially affect ... interstate commerce.”
Cf. Lopez,
In this case, there was evidence that the stores targeted by Robinson’s gang were robbed of thousands of dollars and, moreover, that the robberies impaired their ability to cash out-of-state checks and to restock goods shipped from other states. The jury necessarily found that this disruption amounted to an effect on interstate commerce. We have no doubt that such disruptions, if repeated at retail stores across the nation, would amount to a substantial effect upon interstate commerce. Accordingly, we reject appellant’s claim that with respect to his intrastate activities, which may have affected interstate commerce less than substantially, the Act was unconstitutionally applied.
3. Related Prosecutorial and Trial Errors
Appellant presents a final cluster of arguments relating to the supposed inadequacy of the indictment, proof, and jury instructions. He contends that the indictment failed to allege that the subject robberies substantially affected interstate commerce. He further contends that the evidence at trial was insufficient to prove a substantial effect on interstate commerce. Finally, he claims that the *1216 district court erred by failing to instruct the jury that such proof was required.
Assuming these arguments have been preserved for review, they are entirely without merit. Because a Hobbs Act robbery, viewed in isolation, need not have more than a minimal effect upon interstate commerce, appellant’s arguments fall of their own weight.
Appellant’s challenge to his firearm conviction was entirely derivative of his Hobbs Act arguments. A conviction under 18 U.S.C. § 924(c)(1) must be premised on the use or carrying of a firearm in connection with a crime subject to federal jurisdiction. Robinson contends that because the underlying robberies were not constitutionally within the reach of federal law, his firearm conviction is invalid. Our finding that the Hobbs Act was applied constitutionally disposes of this argument.
Accord Bolton,
Appellant urges reversal of his convictions on several additional grounds. Having carefully considered the arguments in light of the record and the applicable law, we hold that no reversible error occurred. We affirm on all counts.
F. First Principles Revisited
Because of the profound issues raised by the Lopez decision, and in light of the guerilla campaign now being waged against federal statutes in the name of Lopez, 8 we offer these concluding observations.
We are acutely aware that the robbery of a neighborhood store, or even several such stores in one large city, is not the prototypical Hobbs Act violation. As other courts have noted, the principal evil which inspired the passage of the Hobbs Act was, quite literally, highway robbery, especially those robberies committed by racketeers operating through labor unions.
See, e.g., United States v. Woodruff,
Eloquent voices have been raised against precisely this sort of federalization of the criminal law. 9 Among the familiar complaints are that the creation of new federal crimes burdens the federal courts, delaying civil trials; that similarly situated defendants receive unequal procedural protections and sentences, depending on whether they are charged under state or federal law; and that the expansion of federal jurisdiction impedes the ability of the states to innovate in the field of criminal justice. Andrew Weis, Note, Commerce Clause in the Cross-Hairs, 48 StanL.Rev. 1431,1439-40 (1996).
Whether the proliferation of federal crimes should be lamented or celebrated, however, is not for us to say. The federal courts were not elected to represent the will of the people and ought not superintend congressional policy judgments. Our opinion today does not address the wisdom of applying the Hobbs Act to local crimes that affect interstate commerce, but only the constitutionality of doing so. In upholding the Act, we have relied on the analytical framework of Lopez, interpret *1217 ed consistently with several decades of prior Commerce Clause decisions.
In our view, Lopez teaches two quite distinct lessons. First, Lopez stands for the principle that certain activities, but not others, can be regulated under the Commerce Clause. Lopez holds that the proper objects of the interstate commerce power are interstate commerce and those local activities which, in isolation or in the aggregate, substantially affect it. The Court’s elaboration of this point yielded the rules of decision which we employed, with little difficulty, in our analysis today.
The second, more subtle lesson of
Lopez
is that there are “outer limits” to the commerce power, beyond which Congress may not trespass.
See Lopez,
Precisely how the lower federal courts are to police the outer boundary of the commerce power is left unsaid.
10
In particular, we do not yet know whether a statute which passes the substantial effect test of
Lopez
may nonetheless be struck down as intruding into areas traditionally managed by the states. Previous judicial experiments in protecting the states from federal encroachment under the commerce power have a mixed record of success.
See National League of Cities v. Usery,
As the circuit that struck down the Gun-Free School Zones Act, we are acutely aware of the importance of protecting the integrity of the states and preventing the commerce power from becoming a national police power. In our own cases, we have taken steps toward setting an outer limit on the commerce power by circumscribing the government’s ability to prosecute crimes targeting private residences and individuals in their homes.
See United States v. Collins,
Despite these efforts, we recognize that there is a danger in the courts transforming a general axiom of federalism into a rule of decision to determine the outcome of particular cases. A jurisprudence of undefined “outer limits” surely would repose too much discretion in the courts.
See, e.g., Woodruff,
Fortunately, the case before us does not involve a federal law that intrudes into an area traditionally within the exclusive purview of the states. This is not a case involving public education, domestic relations or municipal zoning. 11 Although this is a criminal case, the statute at issue was enacted to protect the nation’s commerce from local *1218 threats which, in the aggregate, could substantially affect that commerce. There is no usurpation here.
In sum, we uphold the Hobbs Act and its application to Robinson, confident that our decision does no violence to the principle of limited federal power articulated in Lopez.
III. DISCUSSION OF SENTENCING ISSUES
Appellant was sentenced on September 6, 1996, to 210 months imprisonment on the Hobbs Act counts and a consecutive term of 60 months on the firearm count. See generally United States Sentencing Commission, Guidelines Manual (1995). He contends that the district court impermissibly enhanced his offense level based on the “vulnerable victim” guideline, U.S.S.G. § 3A1.1. We agree. 12
The Sentencing Guidelines provide for a 2-level enhancement of the defendant’s offense level for offenses against “unusually vulnerable” victims. The applicable guideline states:
If the defendant knew or should have known that a victim of the offense was unusually vulnerable due to age, physical or mental condition, or that a victim was otherwise particularly susceptible to the criminal conduct, increase by 2 levels.
U.S.S.G. § 3Al.l(b).
By its terms, this section applies only if (1) a victim was unusually vulnerable because of age, physical or mental condition, or was “otherwise particularly susceptible to the criminal conduct”; and (2) the defendant actually knew or should have known of the victim’s vulnerability or susceptibility.
See United States v. Castellanos,
Appellant received a “vulnerable victim” enhancement for each count of conviction. His enhanced offense level for each count was then incorporated into the calculation of his sentence under the guidelines’ rules for grouping multiple counts.
See
U.S.S.G. Ch. 3, Pt. D. Robinson objected to each vulnerable victim enhancement in the court below and now appeals these adjustments to his offense level. We review the district court’s interpretation of the guidelines
de novo;
we review a finding of unusual vulnerability for clear error and to determine whether the district court’s conclusion was “plausible in light of the record as a whole.”
United States v. Scurlock,
The vulnerable victim enhancements in this case were proposed in the Presentence Investigation Report (PSR) prepared by the probation officer. Prior to sentencing, appellant objected, contending that the victims in this case were not “unusually vulnerable.” He pointed out that according to the guidelines commentary, “a bank teller is not an unusually vulnerable victim solely by virtue of the teller’s position in a bank.” U.S.S.G. § 3Al.l(b), comment., note 2. Robinson argued that the merchants victimized in this case were analogous to the bank teller described in the commentary, and were distinguishable from the commentary’s examples of unusually vulnerable victims — defrauded cancer patients and handicapped robbery victims.
In an addendum to the PSR, the probation officer responded that the vulnerable victim enhancement was warranted. She stated:
The victims targeted in these offenses were Asian or Korean [sic] business people who were either the owners of a convenience store or some other business establishment which kept large amounts of cash. The business establishments were in ethnic minority neighborhoods and cashed checks for people living in the neighborhood. It is the probation office[’]s position that these victims were more susceptible to this type of offense and were targeted for that reason.
The district court, expressly adopting the probation officer’s reasoning, held that Rob *1219 inson “knew or should have known that these robberies were being committed with the intention of preying upon Asian and Korean [sic] business people and that these individuals were selected because of their vulnerability.” The government seeks to uphold this enhancement on the ground that the AsianAmeriean merchants targeted “were not as ‘street-sawy’ or ‘crime-conscious’” as other merchants. The government cites Thompson’s testimony that Asian-Americans were perceived as careless in handling large sums of cash.
We hold that the district court clearly erred in finding that these victims were “unusually vulnerable.” The guidelines do not support the view that members of racial minority groups, in this case Asian-Americans, are unusually susceptible to crime.
13
Nor is a vulnerable victim enhancement appropriate on the basis of the victims’ employment as merchants in stores that deal in a high volume of cash. Under the guidelines, a vulnerable victim enhancement must stem from a personal trait or condition of the victim, rather than the position he occupies or his method of doing business. “Unless the criminal act is directed against the young, the aged, the handicapped, or unless the victim is chosen because of some unusual personal vulnerability, § 3Al.l[b] cannot be employed.”
United States v. Paige,
In this case, the victims were not selected because of any “unusual personal vulnerability,” nor were they in demonstrably greater need of societal protection than other crime victims. To paraphrase the bank robber Willie Sutton, the victims’ stores were targeted because that is where the money was. Their possession of large amounts of cash and their perceived carelessness with it are not grounds for enhancement under the vulnerable victim guideline.
We need not decide whether, in some circumstances, a victim’s immigrant status or lack of street smarts might render him “otherwise particularly susceptible” to crime within the meaning of U.S.S.G. § 3Al.l(b). The district court did not rely on this rationale, but on the fact that the victims were Asian-American merchants who handled large bankrolls. A vulnerable victim enhancement based upon the victim’s race, employment, and business habits, without more, cannot stand.
IV. CONCLUSION
Appellant’s convictions are AFFIRMED. His sentence is VACATED and the case REMANDED for resentencing.
Notes
.
See United States v. Harrington,
. Kathleen F. Brickey, Crime Control and the Commerce Clause: Life after Lopez, 46 Case W.L.Rev. 801, 803 (1996) (quoting Franklin D. Roosevelt, press conference (May 31, 1935), in 4 The Public Papers and Addresses of Franklin D. Roosevelt, 200, 221 (Samuel I. Rosenman ed., 1938)).
. The
Lopez
opinion cited
Heart of Atlanta Motel
in its discussion of both the first and third categories.
Compare
Recourse to the formal categories described in
Lopez
is unnecessary when an act of Congress directly regulates interstate commerce or enterprises engaged in interstate commerce.
See United States v. Robertson,
. Courts use the phrase "jurisdictional” in this context as shorthand for the idea that absent a nexus to interstate commerce, the federal government is not empowered to regulate. Of course, the commercial nexus element in the Hobbs Act is not “jurisdictional” in the sense that a failure of proof would divest the federal courts of adjudicatory power over the case. The commercial nexus requirement is in fact a substantive element of the crime. With that caveat, we will follow the general usage by referring to the Act’s commercial nexus element as jurisdictional.
. The Hobbs Act may also have a more compelling legislative history than did the Gun-Free School Zones Act.
See Bolton,
. Appellant's facial challenge is essentially a claim that the statute sweeps too broadly; in his
*1214
view, "the Hobbs Act overreaches impermissibly beyond the 'substantially affects' restraint imposed by the Supreme Court in
Lopez."
Unfortunately for appellant, the Supreme Court has "not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment.”
Webster,
. The government suggests in passing that the substantial effect test may not apply. Of the five circuits to have upheld the Hobbs Act against Lopez-based challenges, only the Tenth Circuit did so by applying the substantial effect test.
See Bolton,
These cases relied on the Supreme Court’s holding that the substantial effect test governs only "purely
intrastate
commercial activities that nonetheless have substantial
interstate
effects.”
United States v. Robertson,
In our view the Hobbs Act regulates both interstate commercial activities and intrastate activities that affect interstate commerce. In any event, we need not decide whether Robertson supplies an alternative basis for upholding the Act.
. By one count, by December 1995 (a mere eight months after the Lopez decision) more than eighty district and circuit court opinions had decided Lopez-based challenges to federal criminal statutes. See Andrew Weis, Note, Commerce Clause in the Cross-Hairs, 48 Stan L.Rev. 1431, 1432 (1996). Among the most frequently challenged statutes are those prohibiting machine-gun possession, carjacking, failure to pay child support, and gun possession by felons. Id. at 1432-33 (internal citations omitted).
. As the late Judge Henry J. Friendly put it:
The Founding Fathers, I think, would have been surprised to find the federal courts trying cases of corruption in the New York City administration simply because one of the participants had rowed across the Hudson in the course of the criminal venture.
Henry J. Friendly, Federal Jurisdiction: A General View 61 (1973).
. At one point the Court suggests that a plain statement rule may apply.
See id.
at 561-63,
. We use these as examples of subjects traditionally superintended by state law. We intimate no opinion as to whether federal legislation regulating any of these areas might be constitutional under the Commerce Clause.
. We reject appellant’s contention that the district court erred by enhancing his offense level for obstruction of justice. U.S.S.G. § 3C1.1. We likewise reject his claim that the district court impermissibly double-counted the conduct underlying his firearm conviction as the basis for both a consecutive sentence and an offense level enhancement. See U.S.S.G. §§ 2B3.1(b)(2)(A), (C); id. § 2K2.4, comment., note 2; id. § 3D1.1, comment., note 1.
. The government has never claimed that these offenses were racially motivated hate crimes subject to enhancement under U.S.S.G. § 3Al.l(a).