U.S. v. Tucker

• Decision Date: 25 July 1996
• Docket Number: Nos. 95-1160,95-1187 and 95-1220,s. 95-1160
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Chauncy Adam TUCKER (95-1160); Calvin Miller, Jr. (95-1187); and Anthony Darrick McCoy (95-1220), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1135

90 F.3d 1135

UNITED STATES of America, Plaintiff-Appellee, v. Chauncy Adam TUCKER (95-1160); Calvin Miller, Jr (95-1187); and Anthony Darrick McCoy (95-1220) Defendants-Appellants.

Nos. 95-1160, 95-1187 and 95-1220.

United States Court of Appeals Sixth Circuit.

Argued March 19, 1996.

Decided July 25, 1996.

Jeffery J. Davis (argued and briefed), Office of the U.S. Attorney for the Western District of Michigan, Grand Rapids, MI, for the U.S.

Craig A. Frederick (argued and briefed), Grand Rapids, MI, for Chauncy Adam Tucker.

Joseph H. Doele (argued and briefed), Idema & Keyser, Grand Rapids, MI, Craig A. Frederick (argued and briefed), Grand Rapids, MI, Judy E. Bregman (briefed), Bregman & Welch, Grand Haven, MI, for Calvin Miller, Jr.

Joseph H. Doele (argued and briefed), Idema & Keyser, Grand Rapids, MI, for Anthony Darrick McCoy.

Before: LIVELY, MARTIN, and MOORE, Circuit Judges.

MOORE, Circuit Judge.

Appellants Chauncy Adam Tucker, Calvin Miller, Jr., and Anthony Darrick McCoy challenge their convictions and sentences arising from their participation in a drug trafficking conspiracy. We find their constitutional claims meritless but reverse those convictions that have to do with using or carrying a firearm during a drug trafficking crime and remand for resentencing on firearm possession and quantity issues.

I. Background

A federal grand jury in Michigan indicted Robert Maurice Hampton, Jr., and appellants Chauncy Adam Tucker, Calvin Miller, Jr., and Anthony Darrick McCoy on nine counts related to drug trafficking. Count One charged all three appellants with conspiracy to distribute and possess with intent to distribute cocaine and cocaine base, also known as "crack." Counts Three and Four charged Miller and McCoy respectively with possession with intent to distribute crack. Count Five charged Tucker with distribution of cocaine. Counts Six and Seven charged McCoy and Miller with manufacture of and possession with intent to distribute crack within one thousand feet of an elementary school. Counts Eight and Nine charged Miller and McCoy with using and carrying firearms in relation to a drug trafficking crime. Hampton, the conspiracy's ringleader and the focus of Count Two, entered into a plea agreement and testified against the appellants at trial.

The jury returned guilty verdicts against all three appellants on all counts. The district judge sentenced Tucker to 324 months on Count One and 240 months on Count Five, to be served concurrently. Miller received four 360-month concurrent sentences for Counts One, Three, Six, and Seven, and five additional years for Count Eight. McCoy received four 235-month concurrent sentences for Counts One, Four, Six, and Seven, and five additional years for Count Nine. This appeal followed.

II. Constitutional Issues

The appellants raise several constitutional challenges to their convictions and sentences. First, Miller and McCoy argue that 21 U.S.C. § 860(a) exceeds Congress's power under the Commerce Clause, U.S. Const. art. I, § 8. Second, all three appellants claim that the prosecution violated the equal protection principles embodied in the Due Process Clause of the Fifth Amendment by excluding jurors on the basis of race. Third, Miller contends that his attorney's performance violated his Sixth Amendment guarantee to effective assistance of counsel.

A. Commerce Clause

21 U.S.C. § 860(a) doubles the maximum punishment for manufacture of and possession with intent to distribute controlled substances under 21 U.S.C. § 841(a)(1) when those activities occur within one thousand feet of a school. Citing United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Miller and McCoy argue that Congress lacks the power to prohibit such conduct. Although no one raised this argument before the district court, both the appellants and appellees have briefed the issue, and we therefore agree to address this important constitutional claim. See United States v. Chesney, 86 F.3d 564, 567-68 (6th Cir.1996) (exercising discretion to address Lopez issue not raised below). We note at the outset that several post-Lopez cases and dicta in the decision of the court of appeals in Lopez reject the appellants' contention. United States v. Rogers, 89 F.3d 1326, 1337-38 (7th Cir.1996); United States v. Clark, 67 F.3d 1154, 1165-66 (5th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1432, 134 L.Ed.2d 554 (1996), petition for cert. filed, No. 95-8936 (U.S. May 9, 1996); United States v. Salmiento, 898 F.Supp. 45, 46-48 (D.P.R.1995); United States v. Garcia-Salazar, 891 F.Supp. 568, 569-572 (D.Kan.1995); United States v. Lopez, 2 F.3d 1342, 1366 n. 50 (5th Cir.1993), aff'd, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995).

In Lopez, the Supreme Court recognized that under the Commerce Clause Congress may regulate three broad categories of activity, including "those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce." 514 U.S. at ---- - ----, 115 S.Ct. at 1629-30 (citation omitted). The Court held that the Gun-Free School Zones Act of 1990, which criminalized possession of a firearm within one thousand feet of a school, exceeded this constitutional power. See 514 U.S. at ---- - ----, 115 S.Ct. at 1630-34; Gun-Free School Zones Act of 1990, Pub.L. No. 101-647, § 1702, 1990 U.S.C.C.A.N. (104 Stat.) 4844, 4844-45 (codified at 18 U.S.C. § 922(q)). In reaching this conclusion, the Court noted that firearms possession "has nothing to do with 'commerce' or any sort of economic enterprise." 514 U.S. at ---- - ----, 115 S.Ct. at 1630-31; see also id. at ----, 115 S.Ct. at 1640 (Kennedy, J., concurring) ("[N]either the actors nor their conduct have a commercial character, and neither the purposes nor the design of the statute have an evident commercial nexus."). The Court's decision also relied on the absence of a jurisdictional element in the statute and the lack of relevant congressional findings. ¹ Id. at ---- - ----, 115 S.Ct. at 1631-32.

Unlike the Gun-Free School Zones Act, the statutory scheme at issue here neither "plows thoroughly new ground" nor "represents a sharp break with the long-standing pattern" of federal regulation. See Lopez, 514 U.S. at ----, 115 S.Ct. at 1632 (quoting Lopez, 2 F.3d at 1366). Rather, § 860 addresses a clearly commercial activity that has long been within federal power to regulate. In contrast to the firearm possession at issue in Lopez, drug trafficking is an "economic enterprise" that substantially affects interstate commerce in numerous clear ways. Each individual instance of cocaine dealing, for example, represents the end point of a manufacturing, shipping, and distribution network that is interstate--and international--in nature. In fact, Congress included specific findings to that effect when it passed the Controlled Substances Act. Controlled Substances Act, Pub L. No. 91-513 (84 Stat. 1236), tit. II, § 101, 1970 U.S.C.C.A.N. 1444, 1444-45 (codified at 21 U.S.C. § 801); see also Controlled Substances Penalties Amendments Act of 1984, Pub.L. No. 98-473, ch. V, sec. 503(a), § 405A, 1984 U.S.C.C.A.N. (98 Stat.) 2068, 2069 (amending Controlled Substances Act to include current § 860). For these reasons, this circuit upheld federal criminalization of intrastate drug dealing under the Commerce Clause before Lopez, see United States v. Scales, 464 F.2d 371, 375 (6th Cir.1972), as has every jurisdiction that has considered the issue after Lopez, see United States v. Lerebours, 87 F.3d 582, 584-85 (1st Cir.1996); United States v. Staples, 85 F.3d 461, 463 (9th Cir.1996); United States v. Genao, 79 F.3d 1333, 1336-37 (2d Cir.1996); United States v. Brown, 72 F.3d 96, 97 (8th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 2581, 135 L.Ed.2d 1095 (1996); United States v. Wacker, 72 F.3d 1453, 1475 (10th Cir.1995), petition for cert. filed, No. 95-9284 (U.S. June 10, 1996); Clark, 67 F.3d at 1165-66; United States v. Leshuk, 65 F.3d 1105, 1111-12 (4th Cir.1995); United States v. Lynch, 908 F.Supp. 284, 291 (D.V.I.1995); United States v. Grafton, No. 1:95-CR-131-FMH, 1995 WL 506001, at * 5 (N.D.Ga. Aug.15, 1995). Lopez does not give us cause to question Congress's power to regulate an activity as clearly commercial as drug trafficking.

Miller and McCoy point out that § 860 shares a characteristic with the statute that Lopez invalidated: in both cases, the regulated activity took place within one thousand feet of a school. The Lopez Court found such an association with education to be an insufficient nexus to bring the activity within the regulatory powers of Congress: "We do not doubt that Congress has authority under the Commerce Clause to regulate numerous commercial activities that substantially affect interstate commerce and also affect the educational process. That authority, though broad, does not include the authority to regulate each and every aspect of local schools." 514 U.S. at ----, 115 S.Ct. at 1633.

As already discussed, however, congressional power in the instant case derives from the interstate nature of the illegal drug trade, not of the educational process. The problem in Lopez was that neither possessing a firearm nor being in a school zone was a basis for exercise of the federal commerce power. Here, in contrast, a key element of the crime--drug trafficking--clearly "substantially affects interstate commerce." Section 860 merely imposes an additional penalty for drug trafficking in a school zone. The statute therefore represents exactly what the Lopez Court hypothesized: a statute enacted under congressional "authority under the Commerce Clause to regulate numerous commercial activities that substantially affect interstate commerce and also affect the educational process." 514 U.S. at ----, 115 S.Ct. at 1633. The fact that Congress chose in § 860 to heighten the punishment for drug dealers who operate near a school...