United States v. Jackson

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(table) (unpublished opinion available through computer assisted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.