U.S. v. Robinson, No. 96-11165

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before WISDOM, BENAVIDES and STEWART; BENAVIDES
• Citation: 119 F.3d 1205
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony W. ROBINSON, Defendant-Appellant.
• Docket Number: No. 96-11165
• Decision Date: 08 August 1997

Page 1205

119 F.3d 1205 UNITED STATES of America, Plaintiff-Appellee,
v.
Anthony W. ROBINSON, Defendant-Appellant. No. 96-11165. United States Court of Appeals,
Fifth Circuit. Aug. 8, 1997.

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Delonia Anita Watson, Dallas, TX, for Plaintiff-Appellee.

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Paul Christopher Watler, Hamlet D. Goore, Dallas, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before WISDOM, BENAVIDES and STEWART, Circuit Judges.

BENAVIDES, Circuit Judge:

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, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), contends that the Act is unconstitutional because it authorizes conviction of a defendant whose conduct affects commerce "in any way or degree." By contrast, Lopez identified specific circumstances in which federal statutes, to withstand constitutional scrutiny, must affect interstate commerce substantially.

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

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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(c)(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. 514 U.S. at 551-53, 115 S.Ct. at 1626. Lopez vividly reminds us that from time to time, the judiciary must intercede to assure that Congress does not, by enacting unconstitutional legislation under the guise of the commerce power, dramatically alter the balance of federalism. We are also well aware of the arguments against shifting the primary responsibility for enacting and enforcing the criminal law from the states to the central government.

At the same time, we recognize the broad sweep of Congress's constitutional authority "[t]o regulate [c]ommerce ... among the several [s]tates," 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, 379 U.S. 294, 301-02, 85 S.Ct. 377, 382, 13 L.Ed.2d 290 (1964). The Commerce Clause has long been recognized as "one of the most prolific sources of national power," H.P. Hood & Sons v. Du Mond, 336 U.S. 525, 534-35, 69 S.Ct. 657, 663-64, 93 L.Ed. 865 (1949), if not the single greatest source of congressional regulatory authority. See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 5-4 (2d ed.1988). Chief Justice Marshall early recognized "that the Commerce Clause grants Congress extensive power and ample discretion to determine its appropriate exercise." Lopez, 514 U.S. at 568, 115 S.Ct. at 1634 (Kennedy, J., concurring) (citing Gibbons v. Ogden, 9 Wheat. 1, 194, 196, 22 U.S. 1, 194, 196, 6 L.Ed. 23 (1824)). The exercise of this power over the past century has helped bind the disparate states of the union into a single economic whole whose productivity is unsurpassed in world history.

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'Connor, pointed out in his Lopez concurrence:

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.

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Lopez, 514 U.S. at 568, 115 S.Ct. at 1634 (Kennedy, J., concurring).

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 "[in]visible to the naked eye...." Lopez, 514 U.S. at 563, 115 S.Ct. at 1632. In that sense, we read Lopez as an admonition that rational basis scrutiny is not tantamount to an abdication of the judiciary's responsibility "to say what the law is." Marbury v. Madison, 1 Cranch 137, 177, 5 U.S. 137, 177, 2 L.Ed. 60 (1803), cited in Lopez, 514 U.S. at 565-67, 115 S.Ct. at 1633. "[D]eference is not acquiescence...." United States v. Knutson, 113 F.3d 27, 29 (5th Cir.1997) (per curiam).

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...