REVISED - September 18, 2001
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-10569
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JAMES MCFARLAND, JR.,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
August 29, 2001
Before GARWOOD, JOLLY, and DeMOSS, Circuit Judges.
PER CURIAM:
On four different dates in a one month period in 1998, James
W. McFarland (“McFarland”) robbed four different retail convenience
stores operated by four different owners at four different
locations in the City of Ft. Worth, Texas. His modus operandi was
extremely simple: enter the store and pretend to look for something
to buy; when he was the only customer in the store, approach the
clerk at the cash register and pull out a .25 caliber pistol;
instruct the clerk to open the cash drawer and then lay down on the
floor; reach in and grab all of the paper currency in the cash
drawer; and tell the clerk to stay on the floor for five minutes
and walk out the door. The dollar amount of his take at each store
was modest: at Quick Way Shopping, he got $50; at Buy Low, he got
$100; at Jeff Stop, he got $145; and at Gateway Liquor, he got
somewhere between $1,500 and $2,000. In each case, the clerk
victim called 911 and reported the robberies to the Ft. Worth
Police Department which conducted an investigation and ultimately
arrested and jailed McFarland on charges of robbery under state
law. However, instead of being prosecuted by the State as would
the perpetrators of hundreds of other similar robberies which
occurred in the City of Ft. Worth in that year, McFarland was
treated differently. Through the alchemy of federal prosecutorial
discretion, a federal grand jury indicted McFarland for a count of
“interference with interstate commerce by robbery” (Hobbs Act) and
a count for use of a firearm in commission of a federal felony (gun
count) on each of the four robberies. He was tried before a jury
in federal court and found guilty on all counts. On each of the
Hobbs Act counts, he was sentenced to 210 months in prison, to be
served concurrently with the other Hobbs Act sentences. On the
first gun count, he was sentenced to 60 months and, on each of the
remaining three gun counts, he was sentenced to 300 months, all of
such gun count sentences to be served consecutive to the Hobbs Act
counts and consecutive to each other, as mandated by the United
2
States Congress. As a result, his total sentence to be served is
1,170 months. Since federal sentencing does not contain any
provision for parole, McFarland will serve 97 and one-half years,
less any small percentage reduction as he may earn by good
behavior. In contrast, under Texas law, McFarland could have been
sentenced to as little as five years.1 And, regardless of the
length of his sentence, he would have been eligible for parole
after serving half his sentence, or 30 years, whichever was less.
See TEX. CODE CRIM. PROC. art. 37.07, sec. 4(a). By prosecuting these
crimes in the federal system, McFarland has received, in effect, a
life sentence without parole.
McFarland appeals, asserting that the application of the Hobbs
Act to these local robberies is unconstitutional, and citing
particularly the recent decisions of the United States Supreme
Court in United States v. Jones2 and United States v. Morrison.3
This is not the first occasion on which this Court has agonized
over the propriety of the gambit of prosecuting criminal conduct
which has historically and traditionally been prosecuted under the
state system as a federal crime in order to maximize punishment.
In United States v. Hickman, 151 F.3d 446 (5th Cir. 1998), another
1
Aggravated robbery under Texas law is a first degree felony,
TEX. PEN. CODE § 29.03(b), and carries a punishment of a minimum of
5 and a maximum of 99 years. TEX. PEN. CODE § 12.32.
2
529 U.S. 848 (2000).
3
529 U.S. 598 (2000).
3
panel of this Court addressed factual circumstances amazingly
similar and raising the same constitutional issues. The Hickman
panel concluded that they were bound by existing Circuit precedent
in United States v. Robinson, 119 F.3d 1205 (5th Cir. 1997), which
held:
We find the reasoning of Bolton unassailable.
We agree that under the third category of the
commerce power described in Lopez, the particular
conduct at issue in any given case need not have a
substantial effect upon interstate commerce.
Congress is free to act -- and the government to
apply the law -- so long as the regulated activity,
in the aggregate, could reasonably be thought to
substantially affect interstate commerce.
Appellant’s as-applied challenge to the Hobbs
Act collapses in the face of the aggregation
principle. Every robbery or act of extortion in
violation of the Hobbs Act must have an effect on
interstate commerce; the Act’s express
jurisdictional element ensures this. It follows
with the inexorable logic of the multiplication
table that the cumulative result of many Hobbs Act
violations is a substantial effect upon interstate
commerce.
Id. at 1215. A majority of the active judges of this Court voted
to reconsider the Hickman decision en banc; but that en banc
reconsideration resulted in a tie vote among the judges
participating in that reconsideration, which left the Robinson
panel decision in place as the binding precedent for this Circuit.
See United States v. Hickman, 179 F.3d 230 (5th Cir. 1999).
McFarland urges us to read the Supreme Court’s language in Jones
and Morrison as being clear enough and sufficiently on point for
4
this panel to reach a conclusion different from the existing
Circuit precedent in Robinson. But neither Jones nor Morrison
dealt with the Hobbs Act which is the heart of this continuing
controversy. And this Circuit has followed a tradition and custom
of a rule of orderliness which precludes a subsequent panel from
disregarding the holding of a prior panel unless that prior holding
has been changed by an intervening en banc decision of this Court
or by a Supreme Court decision. While the tie vote on en banc
reconsideration in Hickman certainly indicates that this Court
sitting en banc has not finally resolved the question of the
constitutionality of applying the Hobbs Act to criminal conduct
which has traditionally been prosecuted as a matter of State
responsibility, this panel nevertheless considers itself obligated
to adhere to the Circuit precedent in Robinson and, therefore, we
affirm the convictions and sentences against McFarland in this
appeal.
ENDRECORD
5
DeMOSS, specially concurring:
I concur in the conclusion reached by the panel that our rule
of orderliness and considerations of collegiality within the Court
require our adherence to the Circuit precedents in Robinson unless
and until changed by an en banc decision. I write separately to
advise the parties and the rest of the Court that, in due course
after issuance of this opinion, I will timely hold the mandate and
call for a ballot for en banc reconsideration. I will take this
action for the following reasons:
1. I think it is unhealthy to have a Circuit precedent
hanging by the slender thread of an en banc tie vote; and as a
matter of Court policy we should work to reach a definitive
conclusion, one way or the other, on that Circuit precedent as soon
as possible.
2. In our en banc reconsideration in Hickman, we had before
us only the Supreme Court decision in Lopez as a guide for testing
the power of Congress under the Interstate Commerce clause to
regulate intrastate activities. There are some commentators who
think that Lopez was “an aberration” or “a single shot decision” or
a “flash in the pan” or “was unlikely to be applied in any other
context.” But the decision of the Supreme Court in Morrison
clearly shows that such characterizations are incorrect. In
Morrison, the Supreme Court reaffirmed, readopted, and reapplied
all of the key holdings of Lopez, particularly those relating to
the third prong of Lopez giving Congress the power to regulate
“activities which substantially affect interstate commerce.” I
would hope, therefore, that some of my colleagues who concluded in
Hickman that Lopez was not a sufficient basis for changing our
Circuit precedent, would, in light of Morrison, at least be willing
to reconsider that conclusion.
3. In two respects I would suggest that the language of
Morrison directly undercuts the foundation of this Circuit’s
precedent in Robinson. First of all, the Supreme Court stated:
We accordingly reject the argument that Congress
may regulate non-economic, violent criminal conduct
based solely on that conduct’s aggregate effect on
interstate commerce.
120 S.Ct. at 1754. Our Circuit precedent in Robinson stands or
falls on the validity of its conclusion that the aggregate effect
of all robberies on convenience stores may justify the application
of the Hobbs Act to those robberies.
Secondly, in Morrison the Supreme Court undercut Robinson by
stating:
Gender motivated crimes of violence are not in any
sense of the phrase economic activity.
120 S.Ct. at 1751. This conclusion is similar to the one reached
by the Supreme Court in Lopez where it held that possession of a
gun in the vicinity of a school was not in any sense of the word an
economic activity. In Morrison the Supreme Court went on to state:
Indeed, if Congress may regulate gender motivated
violence, it would be able to regulate murder or
any other type of violence since gender motivated
7
violence, as a subset of all violent crime, is
certain to have lesser economic impacts than the
larger class of which it is a part.
120 S.Ct. at 1753. I can see no rational basis upon which the
robberies perpetrated here in McFarland could be categorized as an
“economic activity” in light of these statements from Morrison.
4. The last statement of the Supreme Court in Morrison which
I think is particularly relevant to our decisions here in McFarland
is:
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.
120 S.Ct. at 1754. It is beyond dispute that the retail
convenience stores involved as victims of the robberies in this
case were not instrumentalities or channels of interstate commerce.
I would submit that the paper currency in the cash drawer of a cash
register in one of these stores is not “goods involved in
interstate commerce.” The currency in the cash drawer is money, a
medium of exchange. The money gets in the cash drawer because a
customer brings it in and exchanges that money for some “goods”
which he desires to purchase.4 This purchase transaction is a sale
4
This distinction between “goods” and “money” is recognized by
the Uniform Commercial Code which defines “goods” as “all things
(including specially manufactured goods) which are moveable at the
time of identification of the contract for sale other than the
money in which the price is to be paid.” U.C.C. § 2-105 (emphasis
added).
8
to the ultimate consumer of those “goods or commodities” and is the
final transaction by which those goods or commodities become the
personal property of the purchaser and leave any channel of
interstate commerce which they may have been in prior to that
moment. Since McFarland took only cash from the cash drawer, I
would suggest that his robbery was not directed at “goods involved
in interstate commerce”; and, therefore, this language from
Morrison gives us another basis upon which to distinguish this
case.
5. Finally, I would urge the members of this Court to read
again the dissent filed by Judge Higginbotham to the en banc tie
vote decision in Hickman. 179 F.3d at 231 (Higginbotham, J.,
dissenting). This dissent is a comprehensive and masterful
treatment of all of the various issues which have been raised as to
when Congress may regulate activities under the third prong of
Lopez, which “substantially affect interstate commerce.” While
Judge Higginbotham’s dissent was written one year prior to the
Supreme Court decision in Morrison, you will be surprised on re-
reading to see how comfortably his analysis, reasoning and language
fit on the aegis of the language of the Supreme Court in Morrison.
9