U.S. v. Cortes

• Decision Date: 06 August 2002
• Docket Number: No. 01-50352.,01-50352.
• Citation: 299 F.3d 1030
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Walter CORTES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

299 F.3d 1030

UNITED STATES of America, Plaintiff-Appellee, v. Walter CORTES, Defendant-Appellant.

No. 01-50352.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 3, 2002.

Filed August 6, 2002.

Carole C. Peterson, Assistant United States Attorney, Los Angeles, CA, for the plaintiff-appellee.

Michael Tanaka, Deputy Federal Public Defender, Los Angeles, CA, for the defendant-appellant.

Appeal from the United States District Court for the Central District of California; Audrey B. Collins, District Judge, Presiding. D.C. No. CR-00-00848-ABC.

Before PREGERSON, TROTT, Circuit Judges, and FITZGERALD,^* District Judge.

OPINION

TROTT, Circuit Judge.

Walter Cortes ("Cortes") was convicted of attempted carjacking in violation of 18 U.S.C. § 2119 ("carjacking statute"). Cortes requested a sentencing reduction to account for his acceptance of responsibility. The district court denied that request and sentenced Cortes to 97 months in prison.

On appeal, Cortes attacks the carjacking statute as an unconstitutional abuse of Congress's Commerce Clause authority. Cortes appeals also his sentence insofar as it fails to account for his acceptance of responsibility. We have jurisdiction pursuant to 28 U.S.C. § 1291. Joining our Sister Circuits, we hold that Congress may constitutionally regulate carjacking as an activity that substantially affects interstate commerce. However, we vacate Cortes's sentence because the record does not reflect whether the district court appropriately evaluated the factors germane to Cortes's requested acceptance of responsibility reduction.

BACKGROUND

After leaving work at Home Depot around midnight, Cortes and some friends went to the local speakeasy to shoot pool and drink beer. Shortly before 2:00 AM, they shunned the pub in favor of a public park, where they continued drinking beer as well as Hennessey Cognac. At some point, for an undisclosed reason, Cortes removed his clothes — except for his boxer shorts.

A short time later, Cortes fought with one of his friends, Andres Ruiz. After the fight, Cortes fled from the area. Nearly naked and separated from his comrades, Cortes tried to keep a low profile; so naturally, he looked for a car to steal. Cortes was unsuccessful in hotwiring a flashy Camaro, but he was able to boost its stereo. Cortes, nevertheless, continued looking for a car to steal.

At 4:45 AM, Cortes arrived at a 7-Eleven just as Oscar Ramos ("Ramos") was exiting with his early morning necessities. Cortes accosted Ramos in the parking lot and demanded his car keys. Ramos refused and returned to the store. Cortes followed Ramos into 7-Eleven and stalked Ramos to and fro through the aisles while accusing Ramos of shooting and killing his sister — indeed, an odd accusation given that Cortes does not have a sister.

Apparently tiring of hide-and-seek with Ramos, Cortes sought out "someone who did not look too tough." In the parking lot, Cortes spied a 7-Eleven customer who apparently fit the bill. As it happens, however, Cortes unwittingly selected plain-clothed FBI agent, Samuel Whitman ("Whitman"), who was on his way to an undercover surveillance assignment. Whitman had observed the shenanigans inside the 7-Eleven and was retrieving his revolver so that he might quell the disturbance.

Cortes approached Whitman and demanded the keys to Whitman's government-issued blue Oldsmobile. Whitman displayed his badge and refused to relinquish the keys, whereupon Cortes struck him in the face with the Camaro's car stereo he was still holding. A vigorous struggle ensued; at one point both combatants fell to the ground. Cortes swung furiously with the car stereo and connected a few more times, chipping several of Whitman's teeth and lacerating his lips and gums. Whitman required plastic surgery to repair his facial damage.

By the time Whitman finally accessed his gun, Cortes was already fleeing the scene. Cortes sought refuge in the early morning shadows of the neighborhood until he realized he would eventually be apprehended. At that point, he sat down and waited. Later that morning, a Los Angeles Police Department officer noticed Cortes reposed on the sidewalk a quarter-mile from the 7-Eleven. The officer described Cortes as intoxicated somewhere between the level of "not being able to drive and not being able to care for himself."

Cortes was indicted for attempted carjacking. Cortes moved to dismiss the indictment on the ground that Congress exceeded its Commerce Clause authority in enacting the federal carjacking statute. The district court denied the motion. After a trial, the jury returned a unanimous guilty verdict.

At sentencing, Cortes argued that the district court should reduce his sentence for an array of reasons, including his acceptance of responsibility. The district court rejected Cortes's arguments for downward adjustment and instead adopted the presentence report's ("PSR") calculations of an Offense Level of 30 and a Criminal History Category of I. The resulting United States Sentencing Guidelines ("Guidelines") range was 97 to 121 months. Taking into consideration Cortes's lack of prior criminal activity, the district court sentenced Cortes to 97 months in prison.

Cortes appeals the district court's determination that the federal carjacking statute represents a valid exercise of congressional lawmaking authority as well as its refusal to adjust his sentence downward for an acceptance of responsibility.

DISCUSSION

I. CONSTITUTIONALITY OF 18 U.S.C. § 2119

A. Standard of Review

We review de novo a district court's denial of a motion to dismiss. United States v. Nguyen, 88 F.3d 812, 820 (9th Cir.1996). We also review de novo a district court's determination of the constitutionality of a federal statute. United States v. Jones, 231 F.3d 508, 513 (9th Cir.2000).

B. Commerce Clause Authority

Cortes was convicted under 18 U.S.C. § 2119 which provides:

Whoever with the intent to cause death or serious bodily harm takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall be ... imprisoned.

Congress enacted this statute pursuant to the Commerce Clause, which allows Congress "to regulate Commerce with foreign Nations, and among the several States." U.S. Const. art. I, § 8, cl. 3. Cortes argues that Congress exceeded its Commerce Clause authority by enacting a statute to govern carjacking — a purely local offense, having nothing whatsoever to do with interstate commerce. To support his contention, Cortes relies upon the Supreme Court's recent decisions in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995); United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000); and Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000).

In Lopez, the Supreme Court assessed the constitutionality of the Gun-Free School Zones Act of 1990, 18 U.S.C § 922(q)(1)(A), which made it a federal crime "for any individual knowingly to possess a firearm at a place that the individual knows ... is a school zone." 514 U.S. at 551, 115 S.Ct. 1624 (citation omitted). After extensively surveying the history of Commerce Clause jurisprudence, the Court identified three broad categories of activity that Congress may regulate: (1) "the channels of interstate commerce;" (2) "the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities;" and (3) "those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce." Id. at 558-59, 115 S.Ct. 1624 (citation omitted). The relevant category in Lopez was Congress's ability to regulate gun possession as an activity that substantially affects interstate commerce. The Court noted that the gun possession statute was not limited to any "discrete set of firearm possessions ... [with] an explicit connection with or effect on interstate commerce." Id. at 562, 115 S.Ct. 1624. It "contain[ed] no jurisdictional element which would ensure, through a case-by-case inquiry, that the [conduct] in question affect[ed] interstate commerce."¹ Id. at 561, 115 S.Ct. 1624. Nor was the gun possession statute defensible as "an essential part of a larger regulation of economic activity." Id. at 561, 115 S.Ct. 1624.

In addition, the Court noted that Congress made no legislative findings when enacting the Gun Free School Zones Act. Id. at 563, 115 S.Ct. 1624. Although congressional findings are not normally necessary, they would have enabled the Court to "evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye." Id.

The Supreme Court concluded that the gun possession statute was merely "a criminal statute that by its terms has nothing to do with `commerce' or any sort of economic enterprise." Id. at 561, 115 S.Ct. 1624. The statute neither regulated a commercial activity nor contained a requirement that the gun possession be connected in any way to interstate commerce. Thus, the Court invalidated the statute as beyond Congress's Commerce Clause authority. Id.

Despite the Commerce Clause watershed wrought by Lopez, the Circuits, including our own, have unanimously upheld the federal carjacking statute against Commerce Clause challenges. See United States v. Rivera-Figueroa, 149 F.3d 1, 3-4 (1st Cir.1998); United States v. Cobb, 144 F.3d 319, 321 (4th Cir.1998); United States v. Romero, 122 F.3d 1334, 1339 (10th Cir. 1997); United States v. McHenry, 97 F.3d 125, 126-27 (6th Cir.1996); United States v. Coleman, 78 F.3d 154, 157-60 (5th Cir. 1996); United States v. Hutchinson, 75 F.3d 626, 627 (11th Cir.1996); United States v. Bishop, 66 F.3d 569, 576-83 (3d Cir.1...