U.S. v. McHenry, 95-3638

Decision Date01 October 1996
Docket NumberNo. 95-3638,95-3638
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ellis McHENRY, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Phillip J. Tripi (argued and briefed), Office of the U.S. Attorney, Cleveland, OH, for Plaintiff-Appellee.

Debra M. Hughes (argued), Federal Public Defender's Office, Donald Krosin (briefed), Cleveland, OH, for Defendant-Appellant.

Before: CONTIE, BATCHELDER, and MOORE, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which CONTIE, J., joined. BATCHELDER, J. (pp. 129-37), delivered a separate dissenting opinion.

MOORE, Circuit Judge.

This appeal presents us with another in a continuing series of challenges to Congress's authority, after United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), to enact criminal laws under the Commerce Clause. In this instance, the defendant challenges the federal carjacking statute, 18 U.S.C. § 2119, part of the Anti Car Theft Act of 1992. Because we believe § 2119 lies well within the scope of the commerce power, we affirm the judgment of the district court.


Defendant Ellis McHenry was convicted after a jury trial on three counts of carjacking, three counts of using or carrying a firearm in relation to a crime of violence, 18 U.S.C. § 924(c), and one count of possession of a firearm as an illegal alien, 18 U.S.C. § 922(g)(5). The carjacking convictions are the only ones at issue here. In a prior appeal, this court rejected McHenry's argument that punishment under both 18 U.S.C. § 2119 and § 924(c) violated double jeopardy. See United States v. McHenry, Nos. 93-3935, 93-4041, 1994 WL 560927 (6th Cir. Oct.11, 1994) (unpublished opinion). Before his resentencing, the Supreme Court decided United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and McHenry now argues that this decision mandates dismissal of the carjacking counts, even though the district court was not swayed by this argument. There are no disputed facts in this case. 1


We begin by noting that the carjacking statute has already been upheld in this circuit as a valid exercise of Congress's commerce power. See United States v. Johnson, 22 F.3d 106, 108-09 (6th Cir.1994). However, Johnson predates Lopez, the first Supreme Court decision in nearly sixty years to invalidate congressional action solely on Commerce Clause grounds. Our narrow mission in the instant appeal, therefore, is to determine whether Lopez necessitates any alteration in Johnson 's conclusion. We join the numerous other circuits that have upheld the carjacking statute in light of Lopez. See United States v. Coleman, 78 F.3d 154, 160 (5th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 230, 136 L.Ed.2d 161 (1996); United States v. Hutchinson, 75 F.3d 626, 627 (11th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 241, 136 L.Ed.2d 170 (1996); United States v. Bishop, 66 F.3d 569, 585 (3rd Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 681, 133 L.Ed.2d 529 (1995); United States v. Robinson, 62 F.3d 234, 236 (8th Cir.1995); United States v. Oliver, 60 F.3d 547, 550 (9th Cir.1995); United States v. Carolina, 61 F.3d 917, 1995 WL 422862, * 1-2 (10th Cir.1995) (unpublished opinion).

A. Instrumentalities of Interstate Commerce

In Lopez, the Supreme Court held that the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A) (1988 ed. Supp. V), which criminalized possession of a firearm within 1,000 feet of a school, exceeded Congress's authority "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const. art. I, § 8, cl. 3. See 514 U.S. at ----, 115 S.Ct. at 1626. In so holding, the Court first explained that § 922(q) was not an attempt by Congress to "regulate the use of the channels of interstate commerce" or "to regulate and protect the instrumentalities of interstate commerce," two areas indisputably situated within Congress's commerce power. Id. at ---- - ----, 115 S.Ct. at 1629-30 (emphasis added). As a result, the statute would stand or fall based on the degree to which it satisfied a third category of permissible legislation: "regulation of an activity that substantially affects interstate commerce." Id. at ----, 115 S.Ct. at 1630 (emphasis added). According to the Court, the government had failed to demonstrate that the mere possession of guns in school zones, even viewed in the aggregate, produced the requisite substantial effect. Id. at ----, 115 S.Ct. at 1634.

The carjacking statute, by contrast, is explicitly designed to regulate and protect an "instrumentality" of interstate commerce, placing it within the second category of legitimate congressional action ("Category Two"). 2 As both the Third and Ninth Circuits have recognized, "cars are themselves instrumentalities of commerce, which Congress may protect." United States v. Oliver, 60 F.3d 547, 550 (9th Cir.1995); accord United States v. Bishop, 66 F.3d 569, 588-90 (3d Cir.) ("the quintessential instrumentalities of modern interstate commerce"), cert. denied, --- U.S. ----, 116 S.Ct. 681, 133 L.Ed.2d 529 (1995).

In describing Congress's power over instrumentalities, "or persons or things in interstate commerce," the Lopez Court noted that regulation and protection are permissible "even though the threat may come only from intrastate activities." 514 U.S. at ---- 115 S.Ct. at 1629. The Court also clearly distinguished regulation under this category from "Category Three" regulation of intrastate activities "that substantially affect interstate commerce." Id. at ----, 115 S.Ct. at 1630. In other words, the Court set forth distinct yet overlapping categories of Congressional power, in which some regulable intrastate activities would undoubtedly involve instrumentalities of interstate commerce and have a substantial effect on interstate commerce, but some would only possess one characteristic or the other. Congress, according to the Court, was empowered to regulate either category of intrastate activity. Although it might seem anomalous for the Court to have allowed regulation of activities involving instrumentalities that, even in the aggregate, do not substantially affect interstate commerce, such a result is perfectly in keeping with the purposes underlying the Commerce Clause. Instrumentalities of interstate commerce--e.g., cars, trains, airplanes, see Bishop, 66 F.3d at 588--retain the inherent potential to affect commerce, unlike other objects of regulation. Thus, even if a particular activity involving an instrumentality might not, through repetition elsewhere, substantially affect interstate commerce during the moment of regulation, the activity still falls within Category Two because the object of regulation contains the unique capacity to affect commerce at some future point in time. In the case of carjackings, for instance, the inherent mobility of cars leads to a substantial likelihood that commerce will be affected--if not in the act of carjacking itself, then in subsequent use of the car by whoever eventually possesses it.

As a result, although it has been argued that congressional authority under Category Two should be limited to regulating cars and other instrumentalities "actually engaged in interstate commerce" or "integrally related to an interstate commerce network," Bishop, 66 F.3d at 597 (Becker, J., dissenting in part), such a rule seems inconsistent with Lopez 's own articulation of the commerce power. Indeed, the rule appears to make Congress's power under Category Two essentially identical to that which is already afforded under Category Three. In our view, once we determine that congressional action has been directed toward regulating or protecting an "instrumentality" of interstate commerce--e.g., cars, trains, airplanes, ships--that is the end of the Category Two inquiry. The action is a valid exercise of the commerce power.

B. A Substantial Effect on Interstate Commerce

Section 2119 may also be sustained under Category Three, if Congress had a rational basis for concluding that carjacking itself "substantially affects" interstate commerce. We believe that it did. The statute addresses "economic evils of an interstate nature," even though each instance of the evil activity may not necessarily cross state lines. United States v. Oliver, 60 F.3d 547, 550 (9th Cir.1995). As further recognized by the Third Circuit in Bishop, carjacking is itself an economic transaction, albeit a coercive one: "When a criminal points a gun at a victim and takes his or her car, the criminal has made an economic gain and the victim has suffered an undeniable and substantial loss. Replicated 15,000 or 20,000 times per year, the economic effects are indeed profound." 66 F.3d at 581.

Congress could rationally have believed that the forcible taking of cars, viewed in the aggregate, has a substantial effect on interstate commerce. Indeed, Congress conducted extensive investigations and made specific findings regarding the impact of the "auto theft problem." H.R.Rep. No. 851, 102d Cong., 2d Sess. 14-16 (1992), reprinted in 1992 U.S.C.C.A.N. 2829, 2830-32. Congress found that carjacking constituted an increasingly prominent type of auto theft, and that auto theft as a whole had profound effects on national and international commerce. Id. According to the House Report, stolen cars represented "over 50% of the value of property lost to crime" in 1991, and auto theft "ha[d] become a very large and lucrative business" involving various illicit schemes: taking cars to "chop shops," where they are "dismantled and sold for replacement parts"; falsely retitling vehicles for resale under the apparent endorsement of another state; and sealing stolen cars in international shipping containers for export. Id. Indeed, because carjacking involves dispossessing a victim of an item deemed by Congress to be a significant "investment," Congress...

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