Petition for Writ of Certiorari — Baylor v. United States (No. 07-1461)

(i) O7 2461 MAY 23 208

OFFICE OF THE CLERK

No. 07 -

IN THE

Supreme Court of the United States

RAJAH BAYLOR,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

JAMES M. CAMPBELL K. LEE BLALACK

2717 Manchester Road MARK S. DAVIES

Akron, Ohio 44319 (Counsel of Record)

(330) 745-2422 BRIANNE J. GOROD*

O’MELVENY & MYERS LLP

1625 Eye Street, N.W.

Washington, D.C. 20006

(202) 383-5300

* Admitted in New York only;

supervised by principals at the

firm.

Attorneys for Petitioner

i

QUESTION PRESENTED

Whether, under United States v. Lopez, 514 U.S.

549 (1995), and United States v. Morrison, 529 U.S.

598 (2000), the Hobbs Act (18 U.S.C. § 1951(a))

prosecution of local robberies that have only a de

minimis effect on interstate commerce is an uncon-

stitutional exercise of federal power.

PA

PARTIES TO THE PROCEEDING

Petitioner Rajah Baylor was defendant-appellant

in the Court of Appeals.

Respondent United States of America was the

plaintiff-appellee below.

il

TABLE OF CONTENTS

Page(s)

QUESTION PRESENTED.................:0:ccsesersresessensenes i

PARTIES TO THE PROCEEDING .................:000000 il

PETITION FOR A WRIT OF CERTIORARI............ 1

PETE EMAL IN sosecencssvsevisnvsnsnssusvscnenssbsipivesesenotes 1

Fo III iss ics locisssses ivsstsseasiubciipives sarccsosnniese 1

CONSTITUTIONAL AND STATUTORY

PENNEY iii cissdvcesenscissvevnchavescersesersosesess 1

STATEMENT OF THE CASE ....................::cccc000000 1

I. NUMEROUS COURTS OF APPEALS

JUDGES HAVE CALLED UPON THIS

COURT TO RESOLVE WHETHER

THE DE MINIMIS STANDARD FOR

HOBBS ACT VIOLATIONS IS

CONSISTENT WITH LOPEZ AND

Be REG REECE LORS 7

II. THE DE MINIMIS STANDARD IS IN

DIRECT CONFLICT WITH LOPEZ

PINES FEIT wirnicesestoasecveidvokswnarersosensesees 13

A. Under Lopez and Morrison, It Is

Improper To Disrupt the Federal

Balance By Making the Most

Trivial and Local of Thefts Sub-

ject to Federal Prosecution. ............... 14

iv

TABLE OF CONTENTS

(continued) 3

Page(s)

B. Under Lopez and Morrison, Rob-

bery Is a Non-Economic Activity

That Cannot Be Aggregated To

Establish the Required Substan-

tial Effect on Interstate Com-

C. Under Lopez and Morrison, the

Existence of a Jurisdictional

Element Does Not Lessen the

Showing Required To Establish a

Substantial Effect on Interstate

Rca ccesnescrencesee 24

III. THIS CASE PRESENTS A GOOD

VEHICLE FOR ADDRESSING THIS

RECURRING AND IMPORTANT

PIs oiseicc sid anpsgeeceistuadotasd extenosins sarsseosestess 28

RPI Aas 5p cc\ cosnscdvcantkscknansernsdapsapsdaniinotuensvnss 30

TEE I iS assh ccc veinsbevcease stoke ctijelarnsoutustoapuscegv ies la

APPENDIX A: Sixth Circuit Opinion ........ la

APPENDIX B: Judgment ......................... 12a

v

TABLE OF AUTHORITIES

Page(s)

CASES

Gonzales v. Raich,

OE Ft BID ooo cvcsonnsosvccesconsesssvaccecovesees passim

Gregory v. Ashcroft,

IPE RP UE CREE) scisvcccosciccasscccsssccssecconcedccscvencese 7

Jones v. United States,

SO I ss. .sssncncedecessccnsssnsvevonooonie 17

United States v. Atcheson,

94 F.3d 1237 (9th Cir. 1996).................... 9, 11, 24

United States v. Bishop,

66 F.3d 569 (8d Cir. 1995)................ 20, 25, 27, 28

United States v. Bolton,

68 F.3d 396 (10th Cir. 1995)..............00.... 5, 11, 18

United States v. Capozzi,

$47 F.3d S27 Cat Cir. 2008)............................... 24

United States v. Clausen,

S26 F.c0 708 (a Cir. 2008).........................000000000 9

United States v. Davis,

473 F.3d 680 (6th Cir. 2007)................................ 9

United States v. Dobbs,

449 F.3d 904 (8th Cir. 2006).................... 9, 11, 24

_ United States v. Enmons,

WRT Fe, EOD ing snccccccdccccccascacaeccccssccoessvacs 2,14

United States v. Fabian,

Ee ee te Ce Ce, BODO)... .n...........ccccccccaceoccesee 24

United States v. Farrish,

Be Be Oe GE, BOT) ain nnn ccnaccccccccsccccscce cose 9

United States v. Gray,

260 F.3d 1267 (11th Cir. 2001).............0..........000. 9

United States v. Harrington,

108 F.3d 1460 (D.C. Cir. 1997) .................. passim

vl

TABLE OF AUTHORITIES

(continued)

Page(s)

United States v. Humphrey

287 F.3d 422 (6th Cir. 3002). NG MEERA E REP Eee 5

United States v. Jimenez-Torres,

435 F.3d 3 (1st Cir. 2006)................... 9, 12, 16, 17

United States v. Lemons,

S02 F.oa 160 (7th Cir. 2002)..................ccccccseses. 12

United States v. Local 807,

International Brotherhood of

Teamsters,

I IED ccc ckoccocscsccscscocscssccccssavecsccssacis 2

United States v. Lopez,

Ee Gites Ne CAO) osc ccccccccccescsccccccccccssccosens passim

United States v. Malone,

B22 F.3e 1286 (Oth Cir. 2000)................cccccercesees 9

United States v. McFarland,

311 F.3d 376 (5th Cir. 2002)

inn dacadassassecesooseovces passim

United States v. Morrison,

I ree Ue ID vnncccccsesesessccccoescsnsccsesess passim

United States v. Peterson,

286 F.3d 848 (7th Cir. 2001) ..................ccccscescoeess 9

United States v. Robertson,

Re I occa cocecccccsccsccoracscecesecsceersees 20

United States v. Taylor,

176 F.3d 331 (6th Cir. 1999)........................00.000. 16

United States v. Williams,

342 F.3d 350 (4th Cir. 2003) ...................cccccosceoese 9

Wickard v. Filburn,

BF Sree eID aibckdascdiiiekcdsacscevctsdnsesdasssacéeots< 18

CONSTITUTIONAL PROVISIONS

UT, Come, ee, EO ini iis sic cscecsedsiess ivosenssces 1,8

Vii

TABLE OF AUTHORITIES

(continued)

STATUTES

BS AGT Gea

18 U.S.C. § 924(C)(1)(A)(hi)....-.ccescseeesseecsseseee.

BB FG. 6 FIBOY oo ooiciocsicccvessscecsesssovesone.

Anti-Racketeering Act of June 18, 1934,

Pub. L. No. 73-376, 48 Stat. 979-80........

OTHER AUTHORITIES

1 New Shorter Oxford English

EPROCIOMNT YS CRO chi dic baie cass cccscerssvcsasossscesos

George D. Brown, Counterrevolution?—

National Criminal Law After Raich,

66 Ohio St. L.2. 947, 989 (2005)..............

Diane McGimsey, The Commerce

Clause and Federalism after Lopez

and Morrison: The Case for Closing

the Jurisdictional-Element Loophole,

90 Cal. L. Rev. 1675, 1680 (2002)....... wis

Andrew Weis, Note. Commerce-Clause

in the Cross-Hairs: The Use of

Lopez-Based Motions to Challenge

the ' Constitutionality of Federal

Criminal Statutes, 48 Stan. L. Rev.

1431, can aca vewnnoncs

H.R. Rep. No. 79-288 (1945) .............ccecseeeee

RONNNNIE SN PE, ED oo oi ccsiccecissaccoscccsscseccdccosess

Webster's 3rd New Internaticnal

EPRUMIIMEY CLOG) on os.sscvcosecaccesovircoccsccesssoses

PETITION FOR A WRIT OF CERTIORARI

Petitioner seeks a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Sixth Circuit.

DECISION BELOW

The opinion of the United States Court of Appeals

for the Sixth Circuit is reported at --- F.3d --- and is

reprinted in the Appendix to the Petition (“App.”) at

la.

JURISDICTION

The judgment of the United States Court of Ap-

peals for the Sixth Circuit was entered on February

26, 2008. This Court has jurisdiction under 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS

The Commerce Clause, U.S. Const. art. I, § 8,

cl.3, empowers Congress to “regulate [clommerce

with foreign [nlations, and among the several

[s]tates, and with the Indian [t]ribes.”

The Hobbs Act, 18 U.S.C. § 1951(a), makes it

unlawful to “obstruct[], delay[], or affect[] commerce

or the movement of any article or commodity in com-

merce, by robbery or extortion.”

STATEMENT OF THE CASE

This petition presents the question whether, con-

sistent with this Court’s recent Commerce Clause

jurisprudence, the federal government may prose-

cute under the Hobbs Act, 18 U.S.C. § 1951(a), local,

small-scale robberies which have only a de minimis

effect on interstate commerce. Petitioner Rajah

Baylor was arrested by Cleveland police officers af-

ter he robbed a Cleveland-area Little Caesar’s pizza

2

restaurant. For his theft of $538, petitioner was

convicted of interfering with commerce by robbery in

violation of the Hobbs Act, 18 U.S.C. § 1951(a). Peti-

tioner was sentenced to approximately five years in

prison for his Hobbs Act conviction.

The Sixth Circuit affirmed the conviction, con-

cluding that petitioner's robbery could be prosecuted

under the Hobbs Act, even though it had only a de

minimis effect on interstate commerce. App. Qa.

The majority below held that the de minimis stan-

dard satisfied constitutional requirements because

individual instances of robbery could, through repe-

tition, have a substantial effect on interstate com-

merce. App. 5a. Ccnacurring, Judge Suhrheinrich

recognized that he was bound by Sixth Circuit

precedent, but expressed concern that those prece-

dents are “inconsistent with the recent Supreme

Court precedent, and more fundamentally, the doc-

trine of federalism.” App. 10a (Suhrheinrich, J., con-

curring).

1. The Hobbs Act makes it a federal crime to “in

any way or degree obstruct[], delay{], or affect[] com-

merce or the movement of any article or commodity

in commerce, by robbery or extortion.” 18 U.S.C. §

1951(a). Originally enacted as an amendment to the

Anti-Racketeering Act of June 18, 1934, Pub. L. No.

73-376, 48 Stat. 979-80 (“the 1934 Act”), the Hobbs

Act was a response to this Court’s holding in United

States v. Local 807, International Brotherhood of

Teamsters, 315 U.S. 521 (1942), that the extortion of

out-of-state truck drivers by members of a New York

City truck drivers union fell within an exception to

the 1934 Act. See United States v. Enmons, 410 U.S.

3

396, 402-03 (1973); see also United States uv.

McFarland, 311 F.3d 376, 382 & n.14 (5th Cir. 2002)

(en banc) (Garwood, J., dissenting from per curiam).

As explained by the House Committee on the Ju-

diciary Report, the Hobbs Act was passed to “elimi-

nate racketeering in relation to interstate commerce,

of concern to the Nation as a whole. That statute

came under examination of the Supreme Court in

United States v. Local 807... .” H.R. Rep. No. 79-

288, at 1-2 (1945). The Report’s conclusion empha-

sized that Congress was concerned about the move-

ment of goods in interstate commerce, explaining

that “the Constitution . . . confers on [Congress] the

exclusive and unlimite[d] power to regulate inter-

state commerce” and that “the members of the Con-

stitutional Convention agreed that our Federal Gov-

ernment would be destroyed if barriers should be

erected in any way to impede the free flow of inter-

state commerce.” Id. at 10. Debate in the House

echoed these concerns, and focused almost exclu-

sively on the “interruption of commodity shipments

actually moving in interstate commerce, principally

agricultural commodities being carried by truck

across state lines.” McFarland, 311 F.3d at 385

(Garwood, J., dissenting from per curiam); see also

id. at 385-87 & n.19.

2. In December 2005, Kevin Oliver, co-defendant

in this case, planned a robbery of the Little Caesar's

Pizza where he had worked in Cleveland, Ohio. Pur-

suant to that plan, petitioner broke into the restau-

rant just after closing and demanded that an em-

ployee open the safe. He then hit the employee with

a ee a a ee” ae

4

a gun, and took approximately $538 before running

out the back of the store.

Later that evening, Oliver and petitioner were

picked up by the police and arrested. During peti-

tioner’s two-day trial, the owner of the Little Cae-

sar’s, Louis Archer, testified that he only ordered

supplies from an in-state distributor, Blue Line Food

Service Distribution in Columbus, Ohio. Pet. C.A.

Br. at 1, 4-5. Joe Mestrovich of Blue Line Food Ser-

vice Distribution testified that his company pur-

chased the products for distribution to the individual

Little Caesar’s pizza stores from businesses out of

state and that those products were then distributed

from the company’s Columbus warehouse. Id. at 4.

This was the only evidence offered at trial of a con-

nection between the local pizza restaurant and in-

terstate commerce. Petitioner was convicted of in-

terfering with commerce by robbery in violation of

the Hobbs Act, 18 U.S.C. § 1951(a), and sentenced to

56 months of imprisonment.

3. The Court of Appeals (Griffin, Sutton, Suhr-

heinrich, JJ.) affirmed petitioner’s conviction. App.

9a. The panel began by noting that it had previously

“reaffirmed [its pre-United States v. Lopez, 514 U.S.

549 (1995)] holdings that the government must

prove only that a robbery had a de minimis effect on

interstate commerce in order to satisfy the jurisdic-

1 Petitioner was also convicted of one count of using a fire-

arm in relation to a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1)(A)(ii), for which he was sentenced to 84 months of

imprisonment to be served consecutively to the sentence im-

posed on the Hobbs Act count. That conviction is nct at issue

here.

5

tional requirement of the Hobbs Act.” App.4a. The

court adopted the Tenth Circuit's reasoning in

United States v. Bolton, 68 F.3d 396, 398-99 (10th

Cir. 1995), concluding that “if a statute regulates an

activity which, through repetition, in aggregate has

a substantial effect on interstate commerce, the de

minimis character of individual instances arising

under the statute is of no consequence.” App. 5a (in-

ternal quotation marks omitted). The court further

explained that it had subsequently reaffirmed the de

minimis standard following this Court’s decisions in

United States v. Morrison, 529 U.S. 598 (2000), and

Gonzales v. Raich, 545 U.S. 1 (2005). Concluding

that it was “bound by our prior published opinions,”

the court held that it “must reject Baylor’s challenge

to the de minimis standard.” App. 7a (citing Sixth

Cir. R. 206(c); United States v. Humphrey, 287 F.3d

422, 452 (6th Cir. 2002)).

Judge Suhrheinrich concurred. Although he con-

sidered himself bound to affirm the conviction be-

cause “the majority's decision is consistent with the

law of this Circuit,” he expressed the view that

“those decisions are inconsistent with the recent Su-

preme Court precedent, and more fundamentally the

doctrine of federalism.” App. 10a. He explained that

under Lopez, “regulated activity must substantially

affect interstate commerce” to “fall within the scope

of the Commerce Clause,” and that Morrison had

“expressly rejected an aggregation theory when regu-

lating non economic activity.” App. 10a. Thus, “[bly

continuing to allow a de minimis standard for indi-

vidual violations of the Hobbs Act, [the court was]

essentially nullifying the ‘substantial effect’ test of

Lopez and Morrison.” App. 10a-11a.

6

Judge Suhrheinrich also observed that the conse-

quences of continuing to allow the de minimis stan-

dard would be significant: “[tJhe effect of our Court’s

rulings is that every local robbery of a business in

the United States is a federal crime.” App. lla. In

Judge Suhrheinrich’s view, this result could not be

“what the Founding Fathers intended,” and he ex-

plained that he had “harbored the hope that the Su-

preme Court in Lopez was seeking to restore a

proper state-federal balance that gives actual mean-

ing to the term federalism.” App. lla. He concluded

by expressing the “hope that the Supreme Court will

consider the issue of whether the de minimis test

survives Lopez and Morrison.” App. lla.

REASONS FOR GRANTING THE PETITION

This case presents an important question about

the proper scope of federal power: whether the Con-

stitution permits the federal government to prose-

cute an individual who commits a local robbery

which has at most a de minimis effect on interstate

commerce. The courts of appeals settled upon this

de minimis standard at a point when the lower

courts allowed the federal government virtually

unlimited power to regulate. But in United States v.

Lopez, this Court recognized that Congress’ powers

under the Commerce Clause, while broad, are not

without limit. 514 U.S. 549, 556-57 (1995); see also

United States v. Morrison, 529 U.S. 598, 608 (2000).

In the years since this Court decided Lopez and

Morrison, there has been considerable confusion in

the courts of appeals as they have attempted to ap-

ply these cases in the Hobbs Act context, and nu-

merous courts of appeais judges have now called

7

upon this Court to resolve this confusion. During

this time, four different approaches have emerged,

producing uncertainty about the meaning of Lopez

and Morrison and how those cases should be applied

in the federal criminal context. Indeed, the two com-

peting approaches adopted by the courts of appeals

are in fundamental conflict with this Court’s deci-

sions in Lopez and Morrison, disrupting the proper

federal-state balance and obliterating, in contraven-

tion of this Court’s decisions, the distinction between

“what is truly national and what is truly local.” See

Morrison, 529 U.S. at 617-18; see also Lopez, 514

U.S. at 557. The lower courts’ attempts to reconcile

their decisions with Lopez and Morrison reveal only

that the continued application of the de minimis

standard cannot be justified in light of the proper

Commerce Clause analysis set out in those cases.

Because of the confusion in the lower courts, and be-

cause of the conflict between the approaches adopted

in the lower courts and this Court’s Commerce

Clause jurisprudence, this Court’s review is war-

ranted. This case presents a good vehicle for ad-

dressing the important question presented. This

Court should grant review.

I. NUMEROUS COURTS OF APPEALS

JUDGES HAVE CALLED UPON THIS

COURT TO RESOLVE WHETHER THE DE

MINIMIS STANDARD FOR HOBBS ACT

VIOLATIONS IS CONSISTENT WITH

LOPEZ AND MORRISON

It is well-estabiished that our Constitution “cre-

ated a Federal Government of limited powers.” See

Gregory v. Ashcroft, 501 U.S. 452, 457 (1991). Thus,

8

while Congress may “regulate [cJommerce . . . among

the several [s]tates,” U.S. Const. art. I, § 8, cl.3,

there are “outer limits” to its authority to do so, see

United States v. Lopez, 514 U.S. 549, 556-57 (1995);

see also United States v. Morrison, 529 U.S. 598, 608

(2000) (Congress’ “regulatory authority [under

Commerce Clause] is not without effective bounds]”).

In Lopez, this Court surveyed the history of its juris-

prudence under the Commerce Clause and “identi-

fied three broad categories of activity that Congress

may regulate under its commerce power”: (1) the use

of the channels of interstate commerce, (2) the in-

strumentalities of interstate commerce, or persons or

things in interstate commerce, and (3) those activi-

ties having a substantial relation to interstate com-

merce, t.e., “those activities that substantially affect

interstate commerce.” Lopez, 514 U.S. at 558-59; see

also Gonzales v. Raich, 545 U.S. 1, 15-19 (2005);

Morrison, 529 U.S. at 608-09. Turning to the third

of those categories, this Court set out the proper

analytical framework for determining the constitu-

tionality of statutes intended to regulate conduct

that substantially affects interstate commerce. See

Lopez, 514 U.S. at 559-64. In Morrison, this Court

reaffirmed Lopez's analytical framework and made

clear that “noneconomic, violent criminal conduct”

cannot be regulated “based solely on that conduct’s

aggregate effect on interstate commerce.” Morrison,

529 U.S. at 608-09, 617.

Despite this Court’s guidance, first in Lopez and

then in Morrison, there is considerable discord

among judges’on the courts of appeals as to how

those cases should be applied in the context of con-

9

stitutional challenges to convictions under the Hobbs

Act, and numerous courts of appeals judges have

now called upon this Court to address this important

question. In the years since Lopez was decided,

every court of appeals has considered whether the de

minimis standard remains constitutional following

Lopez,” and in that time, at least four different views

have emerged. Indeed, even those judges who have

concluded that the de minimis standard remains ap-

propriate are divided as to the appropriate analytical

framework for assessing challenges to Hobbs Act

convictions in light of Lopez.

Under one view, articulated most forcefully by

eight Fifth Circuit court of appeals judges, applica-

tion of the de minimis standard is in clear conflict

with this Court’s Commerce Clause jurisprudence

and requires repudiation of that court’s pre-Lopez

precedents. See United States v. McFarland, 311

F.3d 376 (5th Cir. 2002) (en banc) (Garwood, J., dis-

senting from per curiam). In McFarland, the Fifth

Circuit, by an equally diviced en banc court, af-

firmed the defendant’s conviction of four counts of

? See, e.g., United States v. Jimenez-Torres, 435 F.3d 3 (1st

Cir. 2006); United States v. Farrish, 122 F.3d 146 (2d Cir.

1997); United States v. Clausen, 328 F.3d 708 (3d Cir. 2003);

United States v. Williams, 342 F.3d 350 (4th Cir. 2003); United

States v. McFarland, 311 F.3d 376 (5th Cir. 2002) (en banc);

United States v. Davis, 473 F.3d 680 (6th Cir. 2007); United

States v. Peterson, 236 F.3d 848 (7th Cir. 2001); United States

v. Dobbs, 449 F.3d 904 (8th Cir. 2006); United States v.

Atcheson, 94 F.3d 1237 (9th Cir. 1996); United States v.

Malone, 222 F.3d 1286 (10th Cir. 2000); United States v. Gray,

260 F.3d 1267 (11th Cir. 2001); United States v. Harrington,

108 F.3d 1460 (D.C. Cir. 1997).

10

Hobbs Act robbery for robbing three convenience

stores and a liquor store. In one of the robberies, the

defendant had stolen “about $50.” Id. at 377-78. Al-

though the eight judges who voted to affirm the con-

viction provided no rationale for their decision, eight

judges dissented, forcefully arguing that the Hobbs

Act cannot be constitutionally applied to the robbery

of local retail stores. Under their view, such activi-

ties are not the types of commercial activities prop-

erly regulated under the Commerce Clause. Id. at

396 (“[w]lere the Federal Government to take over

the regulation of entire areas of traditional state

concern, areas having nothing to do with the regula-

tion of commercia) activities, the boundaries between

the spheres of federal and state authority would blur

and political responsibility would become illusory”

(quoting Lopez, 514 U.S. at 577 (Kennedy, J., con-

curring)). To hold otherwise, the dissenters con-

cluded, “would, without adequate justification, bring

within the scope of the Commerce Clause the pro-

scription of local violent (and other) crimes not con-

stituting the regulation of commercial activity,

crimes prototypical of those that historically have

been within the reserved police power of the states,

contrary to the principle that the Commerce Clause

is limited to matters that are truly nationai rather

than truly local.” Id. at 409-10 (emphasis omitted).

Similarly, in United States v. Harrington, 108

F.3d 1460 (D.C. Cir. 1997), Judge Sentelle dissented

from his court's continued application of the de

minimis standard. He explained that “[t]he Su-

preme Court's majority opinion in Lopez, especially

in light of the concurring language of three justices”

11

led him “to believe that the United States’ hroad in-

terpretation of the Hobbs Act robbery statute is di-

recting us toward constitutionally dangerous

ground.” Jd. at 1476. He further explained that a

“relatively trivial effect [if any] on commerce’ should

not be used as an excuse for the broad federalization

of an otherwise state-governed crime.” Jd.

Under a second view, articulated by the court be-

low and the Tenth Circuit, the de minimis standard

remains constitutional because “if a statute regu-

lates an activity which, through repetition, in [the]

aggregate has a substantial effect on interstate

commerce, the de minimis character of individual

instances arising under the statute is of no conse-

quence.” App. 5a (internal quotation marks omit-

ted); see also United States v. Bolton, 68 F.3d 396,

399 (10th Cir. 1995) (considering whether “the

Hobbs Act regulates activities which in aggregate

have a substantial effect on interstate commerce’).

Under this view, the fact that the robbery of a local

retail store is neither “economic” nor “commercial” in

the sense that this Court has used those terms is

immaterial to the analysis of whether the activity’s

effect on interstate commerce can be regulated.

Under a third view, the presence of a jurisdic-

tional element in the Hobbs Act is critical, rendering

Lopez and its substantial effects test imapplicable.

See, e.g., United States v. Dobbs, 449 F.3d 904, 912

(8th Cir. 2006) (‘a statute with an express jurisdic-

tional exus to interstate commerce may be applied

in circumstances where the actual connection to in-

terstate commerce is small”); United States uv.

Atcheson, 94 F.3d 1237, 1242 (9th Cir. 1996) (“Be-

12

cause the Hobbs Act is concerned solely with inter-

state, rather than intrastate, activities, we conclude

that Lopez's ‘substantially affects’ test is not appli-

cable.”). Thus, under this view, it is immaterial

whether the activity, in aggregate, has a substantial

effect on interstate commerce: Congress can change

the required showing by inclusion of a jurisdictional

element.

And, under a fourth view, the de minimis stan-

dard may well be unconstitutional, but circuit prece-

dent forecloses abandoning it until this Court applies

its decisions in Lopez and Morrison in the Hobbs Act

context.’ Judge Torruella, for example, concurred in

affirming the conviction of a robbery of an individual

in his private residence even though he believed that

the majority’s “interpretation of the Hobbs Act... .

extends Congress’ power to regulate interstate com-

merce beyond what is authorized by the Constitu-

tion.” United States v. Jimenez-Torres, 435 F.3d 3,

13 (1st Cir. 2006) (Torruella, J., concurring). He ex-

plained his decision to concur: “[B]ecause precedent

binds me until such time as the Supreme Court puts

an end to the fictions that allow the apparently lim-

itlexs aggrandizement of federal power into areas re-

served to the states by the Constitution, I have no

choice but to concur in the affirmance of [defen-

dant’s} conviction.” Id. at 15; cf. United States v.

Lemons, 302 F.3d 769, 772-73 (7th Cir. 2002) (“[The

defendant] argues that Lopez effected far more of a

sea change in the Supreme Court's Commerce

Clause jurisprudence than we have been willing to

acknowledge. . . . We are bound by the ample Sev-

enth Circuit precedent on this point. If, indeed, Lo-

®

13

pez’s rationale calls into doubt our construction and

application of section 922(g)(1), it is for the Supreme

Court to so hold.”).

Similarly, in this case, Judge Suhrheinrich con-

curred because “the majority’s decision is consistent

with the law of this Circuit.” App. 10a. He further

explained, however, that this result conflicted with

Lopez and Morrison and could not be “what the

Founding Fathers intended.” App. lla. He thus ex-

pressed the “hope that the Supreme Court will con-

sider the issue of whether the de minimis test sur-

vives Lopez and Morrison.” App. lla.

Thus, a decade after this Court decided Lopez,

there is fundamental disagreement among the courts

of appeals as to how the test this Court set forth in

Lopez should be applied in the Hobbs Act context.

Because resolution of this issue is necessary, this

Court’s review is warranted.

Il. THE DE MINIMIS STANDARD IS IN

DIRECT CONFLICT WITH LOPEZ AND

MORRISON

Judge Suhrheinrich expressed the hope that this

Court would review the vitality of the de minimis

standard post-Lopez because, in his view, that stan-

dard is in tension with both the federalism envi-

sioned by the Founding Fathers and this Court’s de-

cisions in Lopez and Morrison. See App. lla. In-

deed, in those cases, this Court recognized that “[t]he

regulation and punishment of intrastate violence

that is not directed at the instrumentalities, chan-

nels, or goods involved in interstate commerce has

always been the province of the States.” Morrison,

529 U.S. at 618. Allowing Congress to intrude into

14

this sphere of state sovereignty disturbs “one of the

few principles that has been consistent since the

Clause was adopted,” that is, that there must be a

“distinction between what is truly national and what

is truly local.” Id. at 617. The de minimis standard

is in tension with this Court’s decisions in Lopez and

Morrison because it subjects virtually all theft to

federal prosecution, blurring the line between the

“truly national” and the “truly local.” The courts of

appeals’ efforts to reconcile this tension simply make

clear that the de minimis standard cannot survive

the analytical framework set out in Lopez.

A. Under Lopez and Morrison, It Is Im-

proper To Disrupt the Federal Balance

By Making the Most Trivial and Local of

Thefts Subject to Federal Prosecution.

In Lopez, this Court explained that “we can think

of no better example of the police power, which the

Founders denied the National Government and re-

posed in the States, than the suppression of violent

crime and vindication of its victims.” Morrison, 529

U.S. at 618. As this Court previously noted, in the

context of rejecting the proposition that the Hobbs

Act was intended to confer upon the federal govern-

ment the authority to “polic[e] the orderly conduct of

strikes,” Enmons, 410 U.S. at 411, there is no indica-

tion in the Act’s legislative history that Congress in-

tended to encroach upon criminal prosecutions that

had historically been the province of the states:

“(njeither the laaguage of the Hobbs Act nor its leg-

islative history can justify the conclusion that Con-

gress intended to work .. . such an unprecedented

incursion into the criminal jurisdiction of the

\- ee ee ee A eee ee ee

15

States,” id. Yet the effect of the decision of the court

below is to do exactly that: it literally makes a “fed-

eral case” out of the most trivial of crimes, the sort of

crimes which “would normally be a mainstay of the

docket of the local district attorney,” Harrington, 108

F.3d at 1474 (Sentelle, J., dissenting).

Here, petitioner stole a few hundred dollars from

the pizza restaurant at which his co-defendant hap-

pened to work. While petitioner’s criminal conduct

surely should be punished (and presumably would

have been prosecuted in state court had the federal

government not intervened), it hardly implicates

core concerns of the federal government. But once

the fact that the victim sometimes buys goods from

out of state is sufficient to establish an effect on in-

terstate commerce and thus federal jurisdiction, the

federal government’s power to prosecute crime is vir-

tually without limit. As Judge Sentelle has pointed

out,

[U]nder [this theory], there is no armed

robbery of a commercial victim not cov-

ered by the Hobbs Act. There is no cor-

ner grocery in Kansas that does not

stock orange juice from Florida or Cali-

fornia; none in Florida or California

that does not stock salt from some other

_ state. Under the government’s theory

of this case, Congress, in passing the

Hobbs Act, intended to federalize the

robbery of every Mom and Pop restau-

rant that buys coffee, spices, or fruit

from out of state. That is all of them.

16

Id. at 1473. Indeed, under the de minimis standard,

even the robbery of private individuals can be sub-

jected to federal prosecution under the Hobbs Act.

See, e.g., United States v. Taylor, 176 F.3d 331, 339

(6th Cir. 1999) (rejecting argument that “Hobbs Act

is unconstitutional insofar as it is applied to the rob-

bery of a private citizen, or burglary of a private

residence”).

As Judge Torruella explained in his concurrence

in Jimenez-Torres, the crime in that case was a fun-

damentally local crime: “[the defendant] and five

other cohorts were ‘looking for houses to rob” and

randomly chose one. Jimenez-Torres, 435 F.3d at 13

(Torruella, J., concurring). However, the federal

government, “in its zeal to make this unfortunate

incident into something it is not—criminal activity

implicating core federal interests,” introduced into

evidence at trial various facts about the victim’s

connection to a commercial establishment, facts that

had no bearing on the actual crime. “Upon [an] ex-

iguous thread of irrelevant evidence, the government

casts a net that, if allowed to set without challenge,

would elbow out large chunks of traditional state

criminal jurisdiction and federalize such crimes.” Jd.

at 14. “At the rate we are going,” Judge Torruella

warned, “perhaps the day will come when the federal

government will see fit to prosecute the robbery of a

child’s roadside lemonade stand because the lemons

came from California, the sugar was refined in

Philadelphia, and the paper cups were manufactured

in China.” Id. at 15.

By bringing “within the scope of the Commerce

Clause the proscription of local violent (and other)

17

crimes not constituting the regulation of commercial

activity, crimes prototypical of those that historically

have been within the reserved police power of the

states,” McFarland, 311 F.3d at 409-10 (Garwood,

J., dissenting from per curiam) (emphasis omitted),

the Hobbs Act threatens to “displace .. . policy

choice[s] made by the State[s],” Jones v. United

States, 529 U.S. 848, 859 (2000) (Stevens, J., concur-

ring).

This broad federal police power, depriving the

states of their traditional authority in the criminal

realm, is precisely what Lopez and Morrison pro-

hibit. By upholding the de minimis standard, the

courts of appeals have embarked upon a path that

threatens to radically change the “constitutional

dogma that establishes that, other than by constitu-

tional exception, ‘the suppression of violent crime

and vindication of its victims’ is a power that ‘the

Founders denied the National Government and re-

posed in the States.” Jimenez-Torres, 435 F.3d at 14

(Torruella, J., concurring). This radical disruption of

the traditional line between federal and state power

is in sharp tension with this Court’s decisions in Lo-

pez and Morrison. The courts of appeals’ efforts to

reconcile the de minimis standard with these cases

make clear that that standard is incompatible with

the analytical framework they establish.

B. Under Lopez and Morrison, Robbery Is a

Non-Economic Activity That Cannot Be

Aggregated To Establish the Required

Substantial Effect on Interstate Com-

merce.

The majority below concluded that only a de

18

minimis effect on interstate commerce was necessary

to support federal prosecution, holding that “if a

statute regulates an activity which, through repeti-

tion, in [the] aggregate has a substantial effect on

interstate commerce, the de minimis character of in-

dividual instances arising under the statute is of no

consequence.” App. 5a (internal quotation marks

omitted). Likewise, in the case on which the panel

below relied, the Tenth Circuit identified the ques-

tion as simply whether “the Hobbs Act regulates ac-

tivities which in aggregate have a substantial effect

on interstate commerce.” United States v. Bolton, 68

F.3d 396, 399 (10th Cir. 1995). Both the panel below

and the Tenth Circuit, however, failed to consider

whether the regulated activity was commercial. The

Tenth Circuit thus distinguished Lopez solely on the

ground that “[uJnlike possession of a firearm in a

school zone, . . . robbery and extortion are activities

that through repetition can substantially affect in-

terstate commerce.” Id.

As this Court’s recent Commerce Clause cases es-

tablish, only activity that is economic or commercial

in nature may be aggregated to determine whether

there is a substantial effect on interstate commerce

sufficient to support regulation under the Commerce

Clause. See, e.g., Lopez, 514 U.S. at 560 (“[w]here

_ economic activity substantially affects interstate

commerce, legislation regarding that activity will be

sustained” (emphasis added)). Distinguishing the

statute at issue in Lopez from the statute that was

upheld in Wickard v. Filburn, 317 U.S. 111 (1942),

under an aggregation theory, the Court explained

that Wickard “involved economic activity in a way

19

that the possession of a gun in a school zone does

not,” Lopez, 514 U.S. at 560.

In Morrison, too, this Court noted that “thus far

in our Nation’s history our cases have upheld Com-

merce Clause regulation of intrastate activity only

where that activity is economic in nature.” Morri-

son, 529 U.S. at 613 (emphasis omitted); see also id.

at 617 (Congress may not “regulate noneconomic,

violent criminal conduct based solely on that con-

duct’s aggregate effect on interstate commerce”).

And, most recently, in Gonzales v. Raich, 545 U.S. 1

(2005), this Court again emphasized the centrality of

the economic nature of the activity to proper Com-

merce Clause analysis, distinguishing the Controlled

Substances Act from the statutes at issue in Lopez

and Morrison on the ground that “the activities regu-

lated by the CSA are quintessentially economic.” Id.

at 25; see also id. at 35-36 (Scalia, J., concurring) (“In

Lopez and Morrison, the Court . . . rejected the ar-

gument that Congress may regulate noneconomic

activity based solely on the effect that it may have on

interstate commerce through a remote chain of in-

ferences.”). .

These cases also make clear that the “economic”

activity that may be regulated under the Commerce

Clause is that activity that can be “properly de-

scribed as ‘commercial’ or ‘economic’ in the same gen-

eral sense as ‘commercial.” See McFarland, 311 F.3d

at 396 (Garwood, J., dissenting from per curiam). In

Lopez, for example, this Court noted that “Congress

has authority under the Commerce Clause to regu-

late numerous commercial activities that substan-

tially affect interstate commerce,” and recognized

20

that the “determination whether an intrastate activ-

ity is commercial or noncommercial’ was a central

question in Commerce Clause analysis. 514 U.S. at

565-66 (emphasis added); see also id. at 583 (Ken-

nedy, J., concurring) (congressional regulation inap-

propriate when it is of an “activity beyond the realm

of commerce in the ordinary and usual sense of that

term”); McFarland, 311 F.3d at 396 (Garwood, J.,

dissenting from per curiam) (Lopez and Morrison

“appear to use the terms [‘commercial’ and ‘eco-

nomic] synonymously”). And in United States v.

Robertson, 514 U.S. 669 (1995), this Court again rec-

ognized that “[t}he ‘affecting commerce’ test was de-

veloped . . . to define the extent of Congress’s power

over purely intrastate commercial activities that

nonetheless have substantial interstate effects.” Id.

at 671 (emphasis added); United States v. Bishop, 66

F.3d 568, 591 (3d Cir. 1995) (Becker, J., dissenting)

(“fijf the intrastate activity is commercial, the ‘sub-

stantial effects’ jurisprudence applies . . . otherwise,

the doctrine is inapplicable and affords Congress no

basis for regulation”).

Robbery of a few hundred dollars is not “com-

mercial” in the “ordinary and usual sense of that

term.” See, e.g., Lopez, 514 U.S. at 583 (Kennedy, J.,

concurring) (Gun Free School Zones Act “regulat[ed]

an activity beyond the realm of commerce in the or-

dinary and usual sense of that term”). The term

“commerce” is used to refer to “[b]uying and selling;

the exchange of merchandise or services, esp. on a

large scale.” 1 New Shorter Oxford English Diction-

ary (1993); see also Webster’s 3rd New International

Dictionary (1993) (“the exchange or buying and sell-

21

ing of commodities, esp. on a large scale and involv-

ing transportation from place to place”). As was

noted in McFarland, “‘rjobbery does have an eco-

nomic effect. But so, too, do not only all thefts of any

kind from any victim but also, for example, virtually

all criminal homicides.” 311 F.3d at 396-97 (Gar-

wood, J., dissenting from per curiam). But that it

has an “economic effect” does not necessarily mean

that it also has an effect on interstate commerce;

theft, for example, even from a business that buys

goods from out of state, may have no effect on inter-

state commerce if the money stolen is immediately

used to purchase other goods that have also moved

in interstate commerce (as most have). Concluding

that robbery has an effect on interstate commerce

(as opposed to an effect on the entity or individual

robbed) requires assumptions about how the money

would have been used by the true owner, as well as

how it will be used by the person who stole it.

And in Morrison, this Court rejected reliance on

such assumptions and attenuated chains of causa-

tion in establishing an effect on interstate commerce,

recognizing that petitioners’ “but-for causal chain

from the initial occurrence of violent crime . . . to

every attenuated effect upon interstate com-

merce.... would allow Congress to regulate any

crime as long as the nationwide, aggregated impact

of that crime has substantial effects on employment,

production, transit, or consumption.” 529 U.S. at

615; see also Lopez, 514 U.S. at 580 (Kennedy, J.,

concurring) (“[iJn a sense any conduct in this inter-

dependent world of ours has an ultimate commercial

origin or consequence, but we have not yet said the

22

commerce power may reach so far’). Thus, this

Court expressly “reject[ed] the argument that Con-

gress may regulate noneconomic, violent criminal

conduct based solely on that conduct’s aggregate ef-

fect on interstate commerce.” 529 U.S. at 617; see

also McFarland, 311 F.3d at 397 (Garwood, J., dis-

senting from per curiam) (“Morrison rejects the no-

tion that Congress may regulate a crime simply be-

cause ‘the nationwide, aggregated impact of that

crime has substantial effects on employment, pro-

duction, transit, or consumption.”).

Nothing in Gonzales alters the conclusion that

robbery is not within the class of activity that may

be aggregated for purposes of Commerce Clause

analysis. Although Gonzales did recognize that

“Congress can regulate purely intrastate activity

that is not itself ‘commercial,’ in that it is not pro-

duced for sale,” such regulation is permissible culy

when the “failure to regulate that class of activity

would undercut the regulation of the interstate mar-

ket in that commodity.” 545 U.S. 1, 18 (2005). As

Justice Scalia explained in his concurrence, while

Congress’ power “to make . . . regulation effective’

commonly overlaps with the authority to regulate

economic activities that substantially affect inter-

state commerce, and may in some cases have been

confused with that authority, the two are distinct.”

"Id. at 37 (Scalia, J., concurring). Thus, in Gonzales,

regulation of the purely local growth and consump-

tion of marijuana was proper because “[t]he regula-

tion of an intrastate activity [was] essential to a

comprehensive regulation of interstate commerce.”

Id. at 31; cf. Lopez, 514 U.S. at 574 (Kennedy, J.,

23

concurring) (“Congress can regulate in the commer-

cial sphere on the assumption that we have a single

market and a unified purpose to build a stable na-

tional economy.”).3 Here, however, there is no com-

prehensive regulatory scheme comparable to the

CSA. See, e.g., Harrington, 108 F.3d at 1476 (Sen-

telle, J., dissenting) (“Congress did not undertake a

genera) regulatory scheme of armed robberies.”).

Accordingly, this Court’s review is necessary to

3 Indeed, the majority in Gonzales repeatedly noted that

failure to regulate the intrastate growth of marijuana would

meaningfully undercut the regulation of the interstate market.

See, e.g., id. at 18 (“Congress can regulate purely intrastate

activity that is not itself ‘commercial,’ in that it is not produced

for sale, if it concludes that failure to regulate that class of ac-

tivity would undercut the regulation of the interstate market in

that commodity.”); id. at 19 (“Congress had a rational basis for

concluding that leaving home-consumed marijuana outside fed-

eral control would similarly affect price and market condi-

tions”); id. (‘parallel concern making it appropriate to include

marijuana grown for home consumption in the CSA is the like-

lihood that the high demand in the interstate market will draw

such marijuana into that market”); id. (“regulation is squarely

within Congress’ commerce power because production of the

commodity meant for home consumption . . . has a substantial

effect on supply and demand in the national market for that

commodity”); id. at 22 (“we have no difficulty concluding that

Congress had a rational] basis for believing that failure to regu-

late the intrastate manufacture and possession of marijuana

would leave a gaping hole in the CSA”); td. at 26 (“CSA is a

statute that regulates the production, distribution, and con-

sumption of commodities for which there is an established, and

lucrative, interstate market. Prohibiting the intrastate posses-

sion or manufacture of an article of commerce is a rational (and

commonly utilized) means of regulating commerce in that prod-

uct.”).

24

clarify the class of activity that can properly be ag-

gregated to establish the required “substantial ef-

fect” on interstate commerce, and to establish that

“robbery” is not “commercial” in the sense that

makes aggregation appropriate for the purposes of

Commerce Clause analysis.

C. Under Lopez and Morrison, the Existence

of a Jurisdictional Element Does Not

Lessen the Showing Required To Estab-

lish a Substantial Effect on Interstate

Commerce.

Although the panel below relied upon an aggre-

gation theory, several other courts of appeals appear

to have concluded that local robberies can be feder-

ally prosecuted primarily (if not solely) because the

Hobbs Act contains a jurisdictional element. See,

e.g., United States v. Capozzi, 347 F.3d 327, 336 (1st

Cir. 2003) (“Congress’ inclusion of a jurisdictional

element in the Hobbs Act addresses the Lopez

Court’s constitutional concern that congressional au-

thority under the Commerce Clause not become a

‘general police power of the sort retained by the

States” (emphasis omitted)); United States v. Fa-

bian, 312 F.3d 550, 555 (2d Cir. 2002) (“As the Hobbs

Act requires a particularized jurisdictional showing,

we fini Morrison does not affect our requirement

that ‘the Government need only show a “minimai”’

effect on interstate commerce’ to support Hobbs Act

jurisdiction.”); United States v. Dobbs, 449 F.3d 904,

912 (8th Cir. 2006) (“a statute with on express juris-

dictional nexus to interstate commerce may be ap-

plied in circumstances where the actual connection

to interstate commerce is small”); United States v.

25

Atcheson, 94 F.3d 1237, 1242 (9th Cir. 2606) (“Be-

cause the Hobbs Act is concerned solely with inter-

state, rather than intrastate, activities, we conclude

that Lopez's ‘substantially affects’ test is not appli-

cable.”); Harrington, 108 F.3d at 1465 (Lopez, in

recognizing the “central role that a jurisdictional

element can play in the valid application of a federal

criminal statute, clearly does not assume that a

‘substantial’ effect on interstate commerce need be

shown in such a setting”).

But the jurisdictional element, while establishing

that the statute was enacted pursuant to Congress’

Commerce Clause power and thus regulates only

those instances that have an effect on interstate

commerce, says nothing about how large an effect is

required to satisfy ccnstitutional requirements. See

Bishop, 66 F.3d at 594 (Becker, J., dissenting) (“a ju-

risdictional element functions only to limit the regu-

lation to interstate activity or to ensure that the in-

trastate activity which is regulated satisfies one of

the three tests of congressional vower’). As the

Court explained in Lopez, the purpose of a jurisdic-

tional element is to “ensure, through case-by-case

inquiry, that the [regulated activity] affects inter-

state commerce.” 514 U.S. at 561. Lopez nowhere

suggested that the mere existence of the jurisdic-

tional element is itself reason to hold that all convic-

tions under the statute are constitutional even in the

absence of that case-by-case inquiry.

Nonetheless, as the dissenters in McFarland ob-

served, “some of our sister circuits have relied on

[the existence of a jurisdictional element] (among

other considerations) in holding that Lopez and Mor-

26

rison are either largely inapplicable to Hobbs Act

cases, or do not require that a substantial effect on

interstate commerce be shown in Hobbs Act prosecu-

tions falling under Lopez category three.” 311 F.3d

at 394 (Garwood, J., dissenting from per curiam).4

But, contrary to these lower court decisions, this

Court left no doubt in Lopez that an intrastate activ-

ity must “substantially affect” interstate commerce

to be subject to regulation pursuant to the Com-

merce Clause. As this Court explained, “our case

law ha[d] not been clear whether an activity must

‘affect’ or ‘substantially affect’ interstate commerce

in order to be within Congress’ power to regulate it

under the Commerce Clause.” 514 U.S. at 559. It

then resolved the confusion: “We conclude, consis-

tent with the great weight of our case law, that the

* See Andrew Weis, Note, Commerce-Clause in the Cross-

Hairs: The Use of Lopez-Based Motions to Challenge the Consti-

tutionality of Federal Criminal Statutes, 48 Stan. L. Rev. 1431,

1454 (1995) (“[t]he lower courts appear to assume that the

mere presence of a jurisdictional element .. . automatically

renders a statute constitutional”); Diane McGimsey, The Com-

merce Clause and Federalism after Lopez and Morrison: The

Case for Closing the Jurisdictional-Element Loophole, 90 Cal.

L. Rev. 1675, 1680 (2002) (“Because courts do not subject stat-

utes containing a jurisdictional element to the stricter ‘substan-

tial effects’ standard of review, Congress’s Commerce Clause

power remains essentially unchanged after Lopez and Morri-

son.”); George D. Brown, Counterrevolution?—National Crimi-

nal Law After Raich, 66 Ohio St. L.J. 947, 989 (2005) (“it was

easy for the lower courts to conclude either that the mere pres-

ence of a jurisdictional element saved a statute from possible

invalidity, or to construe statutes using this technique in a way

that made satisfying the requirements of the elements a simple

task for prosecutors”).

27

proper test requires an analysis of whether the regu-

lated activity ‘substantially affects’ interstate com-

merce.” Id. at 559; see also id. (“we have upheld a

wide variety of congressional Acts regulating intra-

state economic activity where we have concluded

that the activity substantially affected interstate

_ commerce”); id. at 560 (“[w]here economic activity

substantially affects interstate commerce, legislation

regulating that activity will be sustained”). The

simple existence of a jurisdictional element does not

change that constitutional requirement.

Thus, following this Court’s clear holding in Lo-

pez, there is no basis for concluding that Congress

has “the power to provide for a lesser relation to in-

terstate commerce... simply by including a jurisdic-

tional provision.” McFarland, 311 F,3d at 394-95

(Garwood, J., dissenting from per curiam); see also

Morrison, 529 U.S. at 616 (“{uJnder our written Con-

stitution, . . . the limitation of congressional author-

ity is not solely a matter of legislative grace”). Oth-

erwise, Congress could bring under federal control

any intrastate activity that has a de minimis effect

on interstate commerce simply by including a juris-

dictional element in the statute. See Lopez, 514 U.S.

at 557 (internal quotation marks omitted); Weis, su-

pra, at 1456 (“[uJ]nder the ‘logic’ of lower courts’

reading, the Lopez Court could have upheld § 922(q)

if Congress had simply inserted a jurisdictional ele-

ment into its text”); cf. Bishop, 66 F.3d at 593

(Becker, J., dissenting) (“[the majority's] reasoning

supports the government’s contention that Lopez

would have been decided differently had § 922(q).. .

simply contained a requirement that the gun had at

28

some point been transported in interstate com-

merce”); id. at 596 (“majority's holding effectively

renders the Supreme Court's three-part Commerce

Clause analysis superfluous, and permits Congress,

through the inclusion of a meaningiess interstate

commerce provision, to ‘convert congressional au-

thority under the Commerce Clause to a general po-

lice power of the sort retained by the States” (em-

phasis omitted)).

Accordingly, this Court’s review is warranted to

clarify that Congress may not expand its own power

under the Commerce Clause simply by including a

jurisdictional element in statutes enacted under the

Commerce Clause.

Ill. THIS CASE PRESENTS A GOOD

VEHICLE FOR ADDRESSING THIS

RECURRING AND IMPORTANT ISSUE

Aside from the confusion in the courts of appeals

and the tension between the decision below and this

Court's Commerce Clause jurisprudence, review is

also warranted because the factual scenario raising

the question at issue is recurring. As the cases dis-

cussed above indicate, the federal government re-

peatedly prosecutes individuals whose criminal ac-

tivity has, at best, a de minimis effect on interstate

commerce. And the confusion about the proper ap-

plication of Lopez that is evident in the Hobbs Act

context is likely to infect other federal criminal stat-

utes as well. See, eg., Bishop, 66 F.3d at 591

(Becker, J., dissenting) (“the majority views Lopez as

either a narrow decision or something of a ‘sport.’ . . .

I view Lopez as a beacon that we must follow, and

the direction in which the beacon points compels my

29

vote to invalidate the carjacking statute as beyond

the broad reach of Congress’s Commerce Clause

power”). Moreover, because the courts of appeals

have all weighed in on this question, and there is in-

ternal division in at least four circuits, there are

lengthy opinions that articulate all the various com-

peting arguments. There is thus no need to wait for

additional appellate consideration of the question.

See infra at 7 & n.2.

Moreover, this case is an ideal vehicle to clarify

the proper application of Lopez and Morrison in the

federal criminal context. This case squarely pre-

sents the question because the evidence that peti-

tioner’s robbery of a few hundred dollars had an ef-

fect on interstate commerce is de minimis (at best).

Indeed, the pizza restaurant which petitioner robbed

does not even buy goods from out of state; to the con-

trary, the restaurant’s owner testified that the only

place from which he orders supplies is a food service

distributor in Columbus, Ohio. Pet. C.A. Br. at 4.

The claimed connection to interstate commerce is the

Columbus distributor's purchase of its supplies from

out of state. Id. Only under the de minimis stan-°

dard could such a claimed connection possibly pass

constitutional muster. And, this question, i.e.,

whether the de minimis standard survives Lopez and

Morrison, was also squarely presented below, id. at

7-11, so there is no concern about waiver. And, fi-

nally, there are no other legal issues that could com-

plicate the analysis. This case presents an excellent

vehicle for the Court to use to heed Judge Suhr-

heinrich’s call that it “consider the issue of whether

the de minimis test survives Lopez and Morrison”

and thereby restore clarity to the proper meaning of

the Commerce Clause in the federal criminal con-

text.

CONCLUSION

For the reasons stated, the Court should grant

the petition.

JAMES M. CAMPBELL

2717 Manchester Road

Akron, Ohio 44319

(330) 745-2422

May 22, 2008

Respectfully submitted,

K. LEE BLALACK

MARK S. DAVIES

(Counsel of Record)

BRIANNE J. GOROD*

O'MELVENY & MYERS LLP

1625 Eye Street, N.W.

Washington, D.C. 20006

(202) 383-5300

* Admitted in New York only;

supervised by principals at the

firm,

as

r

a)

a.

a.

-

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES )

OF AMERICA,

Plaintiff-Appellee,

U. + No. 07-3002

RAJAH BAYLOR,

Defendant-Appellant. }

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 06-00168 - James S. Gwin, District Judge.

Submitted: February 7, 2008

Decided and Filed: February 26, 2008

Before: SUHRHEINRICH, SUTTON, and GRIFFIN,

Circuit Judges.

COUNSEL

ON BRIEF: James M. Campbell, Akron, Ohio, for

Appellant. Duncan T. Brown, ASSISTANT

UNITED STATES ATTORNEY, Cleveland, Ohio, for

Appellee.

GRIFFIN, J., delivered the opinion of the court,

in which SUTTON, J., joined. SUHRHEINRICH, J.

(p. 5), delivered a separate concurring opinion.

2a

OPINION

GRIFFIN, Circuit Judge. Following a jury trial in

the United States District Court for the Northern

District of Ohio, Rajah Baylor was convicted on one

count of interfering with commerce by robbery, in

violation of the Hobbs Act, 18 U.S.C. § 1951(a), and

one count of using a firearm in relation to a crime of

violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii).

Baylor was subsequently sentenced to a term of 140

months of imprisonment. He now appeals his

convictions, arguing that the requirement of a de

minimis effect on interstate commerce under the

Hobbs Act is unconstitutional in light of the

Supreme Court’s decision in United States uv.

Morrison, 529 U.S. 598 (2000). Baylor argues further

that, even assuming that the de minimis standard is

appropriate, the government failed to show that his

activity had such an effect on interstate commerce.

Finding each of Baylor's arguments to be devoid of

merit, we affirm his convictions.

I.

On the evening of December 21, 2005, Little

Caesar’s manager Tina Martin was in the process of

closing a Cleveland-area location of the chain pizza

restaurant when a brick, thrown from the outside,

shattered the glass of the front door. A man dressed

in all black, with a hooded sweatshirt covering the

top of his head and a mask covering his face, stepped

forward and pointed a .38 revolver at Martin,

demanding that she open the store’s register. The

man struck Martin on the head and left with $538.

3a

Cleveland police officers later pulled over a vehicle

driven by Baylor's accomplice, Kevin Oliver, and

arrested Baylor and Oliver, finding a gun, masks,

and gloves on the floorboard of the vehicle. The

police returned the suspects to the Little Caesar’s

restaurant, where Martin identified Baylor as her

assailant. Following a two-day trial, a jury convicted

Baylor of interfering with commerce by robbery

(Count One), in violation of the Hobbs Act, 18 U.S.C.

§ 1951(a), and of using a firearm in relation to a

crime of violence (Count Two), in violation of 18

U.S.C. § 924(c)(1)(A)G@i). The district court then

sentenced Bayler to a term of 56 months of

imprisonment on Count One and 84 months on

Count Two, to be served consecutively, for a total

term of 140 months of imprisonment.

Il.

Baylor argues that in order to satisfy the

jurisdictional element of the Hobbs Act, his activity

must have had more than a de minimis effect on

interstate commerce. Accordingly, Baylor contends

that our prior cases interpreting the Hobbs Act,

which have held that a de mimimis effect on

interstate commerce is_ sufficient to meet

constitutional requirements, should be re-examined

in light of the Supreme Court’s decision in Morrison.

In Morrison, the Court invalidated the civil remedy

provision of the Violence Against Women Act,

holding that it did not regulate activity that

substantially affected interstate commerce. 529 U.S.

at 613. Five years earlier, in United States v. Lopez,

514 U. S. 549 (1995), the Court held that Congress’s

enactment of the Gun-Free School Zones Act of 1990

exceeded the scope of its authority under the

4a

Commerce Clause, in that “possession of a gun in a

local school zone is in no sense an economic activity

that might, through _ repetition elsewhere,

substantially affect any sort of interstate commerce,”

Lopez, 514 U.S. at 567. See also United States v.

Dupree, 323 F.3d 480, 485 nj (6th Cir. 2003)

(summarizing the holdings of Lopez and Morrison).

We review Baylor's argument de novo because it

raises a question of law. United States v. Smith, 182

F.3d 452, 455 (6th Cir. 1999).

The Hobbs Act provides that “[w]hoever in any

way or degree obstructs, delays, or affects commerce

or the movement of any article or commodity in

commerce, by robbery or extortion...shall be fined ...

or imprisoned ....” 18 U.S.C. § 1951{a). In Smith, we

reaffirmed our pre-Lopez holdings that the

government must prove only that a robbery had a de

minimis effect on interstate commerce in order to

satisfy the jurisdictional requirement of the Hobbs

Act. Surveying the weight of authority from our

sister circuits, we observed that:

All of the other circuits that have considered

the issue have held that the dc minimis

standard for Hobls Act charges survived

Lopez, although the Fifth Circuit has recently

granted a rehearing on this issue. See United

States v. Harrington, 108 F.3d 1460, 1465

(D.C. Cir. 1997); United States v. Alfonso, 143

F.3d 772, 775 (2d Cir. 1998); United States v.

Farrish, 122 F.3d 146, 147 (2d Cir. 1997);

United States v. Hickman, 151 F.3d 446, 456

(5th Cir. 1998), reh’g granted and op. vacated,

165 F.3d 1020 (5th Cir. 1999), [affirmed by 179

5a

F.3d 230 (5th Cir. 1999) (en banc)}; United

States v. Miles, 122 F.3d 235 (5th Cir. 1997);

United States v..Robinson, 119 F.3d 1205 (5th

Cir. 1997), cert. denied, 522 U.S. 1139 (1998);

United States v. Nelson, 137 F.3d 1094, 1102

(9th Cir. 1998); United States v. Woodruff, 122

F.3d 1185 (9th Cir. 1997); United States v.

Beydler, 120 F.3d 985, 987 (9th Cir. 1997);

United States v. Nguyen, 155 F.3d 1219, 1224

(10th Cir. 1998); United States v. Bruce, 78

F.3d 1506, 1509 (10th Cir. 1996); United

States v. Bolton, 68 F.3d 396, 398-99 (10th Cir.

1995); United States v. Paredes, 139 F.8d 840

(llth Cir. 1998) (Wellingford, J., sitting by

designation); United States v. Castleberry, 116

F.3d 1384, 1387 (11th Cir. 1997).

Smith, 182 F.3d at 456. We found persuasive the

Tenth Circuit’s reasoning in Bolton that in Lopez,

the Supreme Court “recognized that if a statute

regulates an activity which, through repetition, in

aggregate has a substantial effect on interstate

commerce, the de minimis character of individual

instances arising under the statute is of no

consequence,” id. (quoting Bolton, 68 F.3d at 399)

(internal citation and quotation omitted), and held

that the “de minimis standard for the interstate

commerce effects of individual Hobbs Act violations

survived Lopez.” Smith, 182 F.3d at 456.

Four years later, in Dupree, we addressed the

same argument that Baylor now raises - that

Morrison requires the government to prove more

than a de minimis effect on interstate commerce

under the Hobbs Act. Dupree, 323 F.3d at 484-85.

We rejected that claim, reaffirming our prior holding

6a

in Smith that “the traditional de minimus standard

for Hobbs Act violations” was appropriate following

Lopez and Morrison, so that “if a statute regulates

an activity which, through repetition, in [the]

aggregate has a substantial effect on interstate

commerce, the de minimus character of individual

instances arising under the statute is of no

consequence.” Dupree, 323 F.8d at 485 (quoting

Smith, 182 F.3d at 456).

Most recently, we considered the de minimis

standard’s applicability to the Hobbs Act in United

States v. Davis, 473 F.3d 680, 681 (6th Cir. 2007).

Specifically, in Davis, we rejected the defendant’s

argument that the de minimis standard is no longer

applicable to the Hobbs Act after the Supreme

Court’s decision in Gonzales v. Raich, 545 U.S. 1

(2005). Davis, 473 F.3d at 682. As we explained:

There is no reading of Raich that supports

Davis’s contention that this Court cannot

continue to apply the de minimis standard to

Hobbs Act cases, where, as here, the extortion

is directed at a business. The Hobbs Act, like

the [Controlled Substances Act at issue in

Raich}, regulates activities, which, in the

aggregate, have a substantial effect on

interstate commerce. See United States uv.

Bolton, 68 F.3d 369, 399 (10th Cir. 1995) (“In

enacting the Hobbs Act, Congress determined

that robbery and extortion are activities which

through repetition may have substantial

detrimental effects on interstate commerce.”)

(citing H.R. Rep. No. 238, 79th Cong., Ist

Sess., (1945), reprinted in 1946 U.S.C.C.A.N.

1360, 1370); see also [United States v.] Wang,

Ta

222 F.3d [234] at 238 [(6th Cir. 2000)] (‘Lopez

did not require realignment of the Hobbs Act’s

jurisdictional nexus because individual

instances arising under the statute could,

through repetition, have a substantial effect

on interstate commerce.”) (citing Smith, 182

F.3d at 456). Therefore, Raich permits, rather

than restricts, the continued application of the

de minimis standard where the Hobbs Act

offense is directed at a business.

Davie, 473 F.3d at 683. We are bound by our prior

published opinions in Smith, Dupree, and Davis, and

must reject Baylor’s challenge to the de minimis

standard. See Sixth Cir. R. 206(c); United States v.

Humphrey, 287 F.3d 422, 452 (6th Cir. 2002).

Finally, we note that since Smith, which was

published prior to Morrison, our sister circuits have

continued to apply the de minimis standard to the

interstate commerce nexus under the Hobbs Act in

the wake of Morrison. See United States v. Griffin,

493 F.3d 856, 861 (7th Cir. 2007); United States v.

Nascimento, 491 F.3d 25, 37 2.3 (1st Cir. 2007);

United States v. Boyd, 480 F.3d 1178, 1179 (9th Cir.

2007); United States v. Davila, 461 F.3d 298, 306-07

(2d Cir. 2006); United States v. Foster, 443 F.3d 978,

983 n.3 (8th Cir. 2006); United States v. Urban, 404

F.3d 754, 766 (8d Cir. 2005); United States v.

McCormack, 371 F.3d 22, 28 (1st Cir. 2004), vacated

on other grounds, 543 U.S. 1098 (2005); United

States v. Malone, 222 F.3d 1286, 1294-95 (10th Cir.

2000). It appears that the Fifth Circuit is divided as

to whether the aggregation principle may be applied

to allow Hobbs Act convictions where the impact on

interstate commerce of individual robberies is

8a

minimal. See United States v. McFarland, 311 F.3d

376, 409-10 (5th Cir. 2002) (en banc) (dividing

equally on aggregation principle, and therefore

affirming defendant’s conviction).

Il.

Although he does not identify this claim in his

briefs “Issues Presented For Review,” Baylor also

argues that the government did not offer sufficient

evidence at trial to satisfy the de minimis standard,

Federal Rule of Appellate Procedure 28(a) requires

the appellant’s brief to contain, inter alia, “a

statement of the issues presented far review....” See

also, e.g., United States v. Winkle, 477 F.3d 407, 416

n.4 (6th Cir. 2007); Marks v. Newcourt Credit Group,

Inc., 342 F.3d 444, 462 (6th Cir. 2003). Baylor’s brief

on appeal identified only a single issue for review.

“Whether the de ~=*minimis_ threshold is

constitutionally sufficient to fulfill the jurisdictional

element of the Hobbs Act?”

Assuming, without deciding, that Baylor has

raised this issue properly for our review, his

argument is plainly without merit. At trial, the

government offered the testimony of Joe Mestrovich,

the senior director of logistics and transportation

services for Blue Line Food Service Distribution

(“Blue Line”). Mestrovich testified that Blue Line

distributes food products for Little Caesar’s

restaurants, including the Cleveland location that

was robbed by Baylor. He testified further that the

food products (cheeses, flours, sauces) traveled

through interstate commerce to the Blue Line

warehouse in Columbus, Ohio, before they were

shipped to the Little Caesar’s restaurant that Baylor

9a

robbed. For example, Mestrovich stated that the

flour used by the Cleveland Little Caesar's

restaurant originated in Minnesota, the sauce from

California, and the cheese from Wisconsin. This

testimony alone is sufficient to satisfy the de

minimis standard. See United States v. Watkins, 509

F.3d 277, 281 (6th Cir. 2007) (holding that de

minimis standard is satisfied where defendant

robbed check-cashing business that drew checks on

nationwide banks); Davis, 473 F.3d at 684 (finding

de minimis standard satisfied by extortion of a bar

that purchased alcohol that had traveled in

interstate commerce); United States v. Brown, 959

F.2d 63, 68 (6th Cir. 1992) (holding that de minimis

standard was satisfied where defendant attempted

to rob a bar that purchased alcohol that had traveled

in interstate commerce).

IV.

For the reasons stated, we affirm Baylor’s

convictions.

10a

CONCURRENCE

SUHRHEINRICH, Circuit Judge, concurring. I

concur because the majority's decision is consistent

with the law of this Circuit and most other circuits,

and is thus correct. However, I think those decisions

are inconsistent with the recent Supreme Court

precedent, and more fundamentally, the doctrine of

federalism.

In United States v. Lopez, the Supreme Court

held that to fall within the scope of the Commerce

Clause, the regulated activity must substantially

affect interstate commerce. United States v. Lopez,

514 U.S. 549, 559 (985) (“Where economic activity

substantially affects interstate commerce, legislation

regulating that activity will be sustained.”). In

United-. States v. Morrison, the Supreme Court

expressly rejected an aggregation theory when

regulating non economic activity.

The regulation and punishment of intrastate

violence that is not directed at the

instrumentalities, channels, or goods involved

in interstate commerce has always been the

province of the States. Indeed, we can think of

no better example of the police power, which

the Founders denied the National Government

and reposed in the States, than _ the

suppression of violent crime and vindication of

its victims.

United States v. Morrison, 529 U.S. 598, 617 (2000)

(citations omitted). By continuing to allow a de

minimis standard for individual violations of the

Hobbs Act, we are essentially nullifying the

lla

“substantial effect” test of Lopez and Morrison. See

United States v. Dupree, 323 F.3d 480, 485 (6th Cir.

2000) (holding that “the traditional de minimis

standard for Hobbs Act violations survived Lopez”).!

The effect of our Court s rulings is that every

local robbery of a business in the United States is a

federal crime. I acknowledge that the Supreme

Court has held that Congress intended to include

within the scope of the Hobbs Act conduct that was

already punishable under the state robbery and

extortion statutes. See United States v. Culbert, 435

U.S. 371, 379-80 (1978). However, I cannot believe

that this is what the Founding Fathers intended.

Moreever, I have harbored the hope that the

Supreme Court in Lopez was seeking to restore a

proper state-federal balance that gives actual

meaning to the term federalism. I also hope that the

Supreme Court will consider the issue of whether

the de minimis test survives Lopez and Morrison.

1 Notably, United States v. Dupree never directly addressed the

holding from Morrison, but rather found it sufficient to rely on

United States v. Smith, 182 F.3d 452 (6th Cir. 1999), which was

decided after Lopez but before Morrison.

Ae Pelee Med,

aa bam

Sicrsesy a Fs

Ris

12a

APPENDIX B

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

UNITED STATES OF JUDGMENT IN A

AMERICA CRIMINAL CASE

Vv.

RAJAH BAYLOR Case Number:

1:06CR00168-002

USM Number: 30614-160

James Campbell

Defendant’s Attorney

THE DEFENDANT:

[] pleaded guilty to count(s): __.

[] pleaded nolo contendere to counts(s) __ which

was accepted by the court.

[x] was found guilty on count(s) 1 and 2 of the

Indictment after a plea of not guilty.

The defendant is adjudicated guilty of these

offense(s):

Title & Section Nature of Offense

18 USC Sec. 1951(a) Interference with

| Commerce by Robbery

18 USC Sec. 924(c)(1)(A)(ii) Use of Firearm in

Relation to Crime of

Violence

13a

ff nded Count

12/21/05 1

12/21/05 2

The defendant is sentenced as provided in pages

2 through 6 of this judgment. The sentence is

imposed pursuant to the Sentencing Reform Act of

1984.

{] The defendant has been found not guilty on

counts(s) __.

[] Count(s) __ (is)(are) dismissed on the motion of

the United States.

IT IS ORDERED that the defendant shall notify

the United States Attorney for this district within 30

days of any change of name, residence, or mailing

address until all fines, restitution, costs, and special

assessments imposed by this judgment are fully

paid. If ordered to pay restitution, the defendant

must notify the court and the United States

Attorney of material changes in the defendant's

economic circumstances.

12/20/06

Date of Imposition of Judgment

__s/ James S. Gwin

Signature of Judicial Officer

JAMES S. GWIN, United States District Judge

Name & Title of Judicial Officer

12/20/06

Date

l4a

IMPRISONMENT

The defendant is hereby committed to the custody

of the United States Bureau of Prisons to be

pep for a total term of ny onaen pocemuarrens

The defendant shall participate in the Bureau of

Prison’s Inmate Financial Responsibility Program.

{x] The court makes the following recommendations

to the Bureau of Prisons:

That the defendant be placed in the following

facility: FCI McKean.

[x] The defendant is remanded to the custody of the

United States Marshal.

{] The defendant shall surrender to the United

States Marshal for this district.

Ly at. ae,

[] as notified by the United States Marshal.

[] The defendant shall surrender for service of

sentence at the institution designated by the

Bureau of Prisons:

[] before 2:00 p.m. on ;

[] as notified by the United States Marshal.

[] as notified by the Probation or Pretrial Services

Office.

15a

RETURN

I have executed this judgment as follows:

Defendant delivered on to

at , with a certified copy of this judgment.

UNITED STATES MARSHAL

By

Deputy U.S. Marshal

SUPERVISED RELEASE

Upon release from imprisonment, the defendant

shall be on supervised release for a term of 3 years.

The defendant must report to the probation office

in the district to which the defendant is released

within 72 hours of release from the custody of the

Bureau of Prisons.

The defendant shall not commit another federal,

state, or local crime.

The defendant shall not unlawfully possess a

controlled substance. The defendant shall refrain

from any unlawful use of a controlled substance. The

defendant shall submit to one drug test within 15

days of release from imprisonment and at least two

periodic drug tests thereafter, as determined by the

Court.

yr

16a

[] The above drug testing condition is suspended,

based on the court’s determination that the

defendant poses a low risk of future substance

abuse. (Check, if applicable.)

[x] The defendant shall not possess a firearm,

ammunition, destructive device, or any other

dangerous weapon. (Check, if applicable.)

[x] The defendant shall cooperate in the collection of

DNA as directed by the probation officer. (Check,

if applicable.)

[] The defendant shall register with the state sex

offender registration agency in the state where

the defendant resides, works, or is a student, as

directed by the probation officer. (Check, if

applicable.)

[] The defendant shall participate in an approved

program for domestic violence. (Check, if

applicable.)

If this judgment imposes a fine or restitution, it is

a condition of supervised release that the defendant

pay in accordance with the Schedule of Payments

sheet of this judgment.

The defendant must comply with the standard

conditions that have been adopted by this court as

well as with any additional conditions on the

attached page.

17a

STANDARD CONDITIONS OF SUPERVISION

1)

2)

3)

4)

5)

6)

7)

8)

9)

the defendant shall not leave the judicial district

without permission of the court or probation

officer;

the defendant shall report to the probation officer

and shall submit a truthful and complete written

report within the first five days of each month;

the defendant shall answer truthfully all

inquiries by the probation officer and follow the

instructions of the probation officer;

the defendant shall support his or her

dependants and meet other family

responsibilities;

the defendant shall work regularly at a lawful

occupation, unless excused by the probation

officer for schooling, training or other acceptable

reasons;

the defendant shall notify the probation officer at

least ten days prior to any change in residence or

employment;

the defendant snall refrain from excessive use of

alcohol and shall not purchase, possess, use,

distribute, or administer any controlled

substance or any paraphernalia related to any

controlled substances, except as prescribed by a

physician;

the defendant shall not frequent places where

controlled substances are illegally sold, used,

distributed, or administered; _

the defendant shall not associate with any

persons engaged in criminal activity, and shall

not associate with any person convicted of a

felony unless granted permission to do so by the

probation officer;

18a

10)the defendant shall permit a probation officer to

visit him or her at any time at home or elsewhere

and shail permit confiscation of any contraband

observed in plain view of the probation officer;

11)the defendant shall notify the probation officer

within seventy-two hours of being arrested or

questioned by a law enforcement officer;

12)the defendant shall not enter into any agreement

to act as an informer or a special agert of a law

enforcement agency without the permission of the

court;

13)as directed by the probation officer, the defendant

shall notify third parties of risks that may be

occasioned by the defendant’s criminal record or

personal history or characteristics, and shall

permit the probation officer to make such

notifications and to confirm the defendant’s

compliance with such notification requirement.

SPECIAL CONDITIONS OF SUPERVISED

RELEASE

None.

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal

monetary penalties under the Schedule of Payments

on Sheet 6.

Assessment Fine Restitution

Totals: $200 a $450

19a

[] The determination of restitution is deferred until.

An amended Judgment in a Criminal Case (AO

245C) will be entered after such determination.

[x] The defendant must make restitution (including

community restitution) to the following payees in

the amounts listed below.

If the defendant makes a partial payment, each

payee shall receive an approximately proportioned

payment unless specified otherwise in the priority

<rder of percentage payment column below.

However, pursuant to 18 U.S.C. § 3664(i), all

nonfederal victims must be paid before the United

States is paid.

Name of Payee *Total Loss

Louis Achkar $450.00

TOTALS: $450.00

Restitution Ordered Priority or Percentage

$450.00 100

$450.00 100

{] Restitution amount ordered pursuant to plea

agreement $ R

[] The defendant must pay interest on restitution

and a fine of more than $2500, unless the

restitution or fine is paid in full before the

fifteenth day after the date of judgment,

pursuant to 18 U.S.C. §3612(f). All of the

payment options on Sheet 6 may be subject to

penalties for delinquency and default, pursuant

to 18 U.S.C. §3612(g).

20a

[] The court determined that the defendant does not

have the ability to pay interest and it is ordered

that: |

[] The interest requirement is waived for the

{ ] fine [ } restitution.

[] The interest requirement for the

[] fine [] restitution is modified as follows:

* Findings for the total amount of losses are

required under Chapters 109A, 110, 110A, and

113A of Title 18 for offenses committed on or

after Sertember 13, 1994 but before April 23,

1996.

SCHEDULE OF PAYMENTS

Having assessed the defendant's ability to pay,

payment of the total criminal monetary penalties are

due as follows:

A [] Lump sum payment of $ due immediately,

balance due

[] not iater than or

[] ee ee C,[{] D, [] BE, or [] F

below; or

B [] Payment to begin immediately (may be

‘combined with [] C [] D, or [] F below); or

C [] Payment in equal installments of $ over a

period of, to commence days after the date of

this judgment; or

2la

D [] Payment in equal installments of $ over a

period of, to commence days after release

from imprisonment to a term of supervision;

Ca

E [] Payment during the term of supervised

release will commence within (e.g., 30 or 60

days) efter release from imprisonment. The

Court will set the payment plan based on an

assessment of the defendant’s ability to pay at

that time; or

F [x] Special instructions regarding the payment of

criminal monetary penalties:

[x] A special assessment of $200 and restitution

in the amount of $450 are due in full

immediately as to count(s) 1 and 2 of the

Indictment. While incarcerated defendant

shall pay 25% of his gross monthly income

through the Federal Bureau of Prisons Inmate

Financial Responsibility Preeram towards

restitution. Any balance remaining upon

release from incarceration shall be paid at the

rate of not less than 10% of defendant’s gross

monthly income until paid in full and

payments shall begin no later than 60 days

following release from incarceration.

PAYMENT IS TO BE MADE PAYABLE AND

SENT TO THE CLERK, U.S. DISTRICT

‘COURT

[] After the defendant is release from

imprisonment, and within 30 days of the

commencement of the term of supervised

release, the probation officer shall recommend

a revised payment schedule to the Court to

22a

satisfy any unpaid balance of the restitution.

The Court will enter an order establishing a

schedule of payments.

Unless the court has expressly ordered otherwise,

if this judgment imposes imprisonment, payment of

criminal monetary penalties is due during

imprisonment. All criminal penalties, except those

payments made through the Federal Bureau of

Prisons’ Inmate Financial Responsibility Program,

are made to the Clerk of the Court.

The defendant shall receive credit for all

payments previously made toward any criminal

monetary penalties imposed.

[] Jomt and Several (Defendant name, Case

Number, Total Amount, Joint and Several

Amount and corresponding payee):

[] The defendant shall pay the cost of prosecution.

{[] The defendant shall pay the following court

cost(s):

{] The defendant shall forfeit the defendant’s

interest in the following property to the United

States:

Payments shall be applied in the following order:

(1) assessment; (2) restitution principal; (3)

restitution interest; (4) fine principal; (5) fine

interest; (6) community restitution; (7) penalties;

and (8) costs, including cost of prosecution and court

costs.