United States Court of Appeals, Eleventh Circuit.
No. 95-3468
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Larry Bernard JACKSON, Defendant-Appellant.
April 25, 1997.
Appeal from the United States District Court for the Northern
District of Florida. (No. 95-CR-5014-RV), Roger Vinson, Judge.
Before BIRCH and DUBINA, Circuit Judges, and KRAVITCH, Senior
Circuit Judge.
PER CURIAM:
Larry Bernard Jackson challenges his conviction for
possession with intent to distribute cocaine base within 1000 feet
of a school, in violation of 21 U.S.C. § 860(a), the Drug-Free
School-Zones Act, because he alleges that section 860(a) is an
unconstitutional extension of Congressional power under the
Commerce Clause. We review the constitutionality of a federal
statute de novo. United States v. Osburn, 955 F.2d 1500, 1503
(11th Cir.1992). We find section 860(a) to be constitutional and,
consequently, affirm the conviction.
Jackson argues that section 860(a) is unconstitutional in view
of the Supreme Court ruling in United States v. Lopez, 514 U.S.
549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). In Lopez, the Court
held that Congress exceeded its power under the Commerce Clause by
enacting a statute prohibiting possession of a firearm within 1000
feet of a school. Id. at ----, 115 S.Ct. at 1626. The Court
determined that possession of a firearm in a school zone involved
no commercial activity and showed no substantial nexus with
interstate commerce. Id. Jackson argues that the same principles
should apply to possession with intent to distribute illegal drugs
in a school zone.
Although this circuit has not addressed directly the
constitutionality of section 860(a), we have refused to apply Lopez
broadly in other contexts. See United States v. McAllister, 77
F.3d 387 (11th Cir.) (finding constitutional a statute which makes
possession of a firearm by a felon a criminal offense), cert.
denied, --- U.S. ----, 117 S.Ct. 262, 136 L.Ed.2d 187 (1996);
Cheffer v. Reno, 55 F.3d 1517 (11th Cir.1995) (holding that the
Freedom of Access to Clinic Entrances Act of 1994 was within
Congress's Commerce Clause power because the provision of
reproductive services was a commercial activity). Furthermore,
every circuit that has considered a Lopez challenge of section
860(a) has upheld the statute as a lawful exercise of Congressional
power. See United States v. Ehrlich, 106 F.3d 409 (9th Cir.1997)
(table) (unpublished opinion available through computer assisted
research); United States v. Hawkins, 104 F.3d 437, 439-40
(D.C.Cir.1997); United States v. Ekinci, 101 F.3d 838, 844 (2d
Cir.1996); United States v. McKinney, 98 F.3d 974, 977-80 (7th
Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1119, --- L.Ed.2d
---- (1997); United States v. Orozco, 98 F.3d 105, 106-07 (3d
Cir.1996); United States v. Zorrilla, 93 F.3d 7, 8-9 (1st
Cir.1996); United States v. Tucker, 90 F.3d 1135, 1139-41 (6th
Cir.1996).
The illegal possession and sale of drugs affects interstate
commerce, and Congress accordingly has authority under the Commerce
Clause to criminalize and punish drug-related activity. United
States v. Bernard, 47 F.3d 1101, 1103 (11th Cir.1995) (per curiam).
Under this constitutional authority, Congress has the power to
regulate drug activity in a school zone. We adopt the reasoning of
our sister circuits in concluding that 21 U.S.C. § 860(a) is a
constitutional exercise of power under the Commerce Clause.
We AFFIRM.