United States v. Robinson

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 96-11165
__________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTHONY W. ROBINSON,

Defendant-Appellant.

______________________________________________

Appeal from the United States District Court for the
Northern District of Texas
______________________________________________
August 8, 1997

Before WISDOM, BENAVIDES, and STEWART, Circuit Judges.

BENAVIDES, Circuit Judge:

The principal issues in this direct criminal appeal are

whether the Hobbs Act is a constitutional exercise of Congress’s

power to regulate interstate commerce; and if so, whether the Act

is constitutional as applied to a defendant whose conduct, viewed

in isolation, does not substantially affect interstate commerce.

The Hobbs Act makes it a federal offense to impede interstate

commerce through robbery or extortion. The appellant, relying on

United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d

626 (1995), contends that the Act is unconstitutional because it

authorizes conviction of a defendant whose conduct affects commerce

“in any way or degree.” By contrast, Lopez identified specific
circumstances in which federal statutes, to withstand

constitutional scrutiny, must affect interstate commerce

substantially.

Applying the lessons of Lopez, we hold that the Hobbs Act is

a permissible exercise of the congressional power to regulate

commerce among the states. Our holding aligns us with every other

circuit that has addressed the issue.1 We further hold that in

Hobbs Act prosecutions based on local activities that affect

interstate commerce, the government need not prove that the effect

of an individual defendant’s conduct was substantial. It suffices

to show a slight effect in each case, provided that the defendant’s

conduct is of a general type which, viewed in the aggregate,

affects interstate commerce substantially.

Although we affirm appellant’s convictions, we vacate his

sentence, which was erroneously enhanced on the ground that his

victims, Asian-American merchants, were unusually vulnerable.

I. FACTUAL AND PROCEDURAL BACKGROUND

In the spring and early summer of 1995, several small

businesses in the Dallas area were victimized in a series of crimes

that became known as the “driveway bank robberies.” The victims

were owners and employees of liquor stores, convenience stores, and

1
See United States v. Harrington, 108 F.3d 1460 (D.C. Cir.
1997); United States v. Atcheson, 94 F.3d 1237 (9th Cir. 1996),
cert. denied, ---U.S.---, 117 S.Ct. 1096, 137 L.Ed.2d 229 (1997);
United States v. Farmer, 73 F.3d 836, 843 (8th Cir.), cert. denied,
---U.S.---, 116 S.Ct. 2570, 135 L.Ed.2d 1086 (1996); United States
v. Stillo, 57 F.3d 553, 558 n.2 (7th Cir.), cert. denied, ---U.S.--
-, 116 S.Ct. 383, 133 L.Ed.2d 306 (1995); United States v. Bolton,
68 F.3d 396 (10th Cir. 1995), cert. denied, ---U.S.---, 116 S.Ct.
966, 133 L.Ed.2d 887 (1996).

2
other retail and service establishments. The stores provided

check-cashing services; the record reflects that the stores cashed

out-of-state checks, payroll checks, and government benefit checks.

The record also reflects that several of the stores sold products

that had been shipped to Texas from other states. The victims

testified that they suffered substantial business losses as a

result of the robberies; one store was forced to close permanently

for lack of capital, and the others were unable to cash checks for

a finite period of time.

The robberies were carried out through a relatively

sophisticated technique known as “jugging,” in which the

perpetrators reconnoitered the stores, learned their business

routines, and struck immediately after the victims had made

substantial bank withdrawals for use in cashing their customers’

checks. Typically the robberies took place in the commercial

drive-up lane of the bank or in the parking lot of the store as the

owner or employee returned with a cash withdrawal.

An investigation by a violent crimes task force comprising FBI

agents and Dallas police officers led to the arrest of the

principal suspect, Ernest Thompson, on July 1, 1995. Arrested with

Thompson was the appellant, Anthony W. Robinson, who subsequently

made several self-incriminating statements to investigators.

Thompson eventually pleaded guilty and testified for the

prosecution at Robinson’s trial. A money-laundering charge against

a third defendant was dropped.

Robinson was indicted on charges of conspiring to violate the

3
Hobbs Act and aiding and abetting three robberies in violation of

the Act. 18 U.S.C. §§ 1951(a), 2. The victims testified at trial

that these robberies caused business losses of approximately $5,000

each to Maple Convenience Store and West End Liquors, and $60,000

to S&S Foods. Each Hobbs Act robbery count was accompanied by a

count alleging that Robinson aided and abetted the possession of a

firearm during a crime of violence. 18 U.S.C. §§ 924(c)(1), 2.

Two of the three firearm counts were dismissed by the district

court. Before trial, the government dismissed a separate count

charging Robinson as principal in a fourth Hobbs Act robbery.

After a jury trial, Robinson was convicted on the remaining

counts: Hobbs Act conspiracy, aiding and abetting three Hobbs Act

robberies, and aiding and abetting one firearm violation. He was

sentenced to a prison term of 210 months on the Hobbs Act counts

and a consecutive 60-month term on the firearm count. He appeals

his convictions and his sentence.

II. CONSTITUTIONAL CHALLENGE TO THE HOBBS ACT CONVICTIONS

A. Introduction: First Principles

We are mindful of the “first principles” articulated by the

Supreme Court in Lopez: that the national government is one of

enumerated powers, and that the division of authority between the

national government and the states is intended to preserve the

liberties of the people. 514 U.S. at ---, 115 S.Ct. at 1626.

Lopez vividly reminds us that from time to time, the judiciary must

intercede to assure that Congress does not, by enacting

unconstitutional legislation under the guise of the commerce power,

4
dramatically alter the balance of federalism. We are also well

aware of the arguments against shifting the primary responsibility

for enacting and enforcing the criminal law from the states to the

central government.

At the same time, we recognize the broad sweep of Congress’s

constitutional authority “[t]o regulate [c]ommerce . . . among the

several [s]tates,” and its concomitant power to protect the

nation’s commerce by enacting such laws as it deems “necessary and

proper.” U.S. CONST. art. I, § 8, cl. 3, 18; see also Katzenbach v.

McClung, 379 U.S. 294, 301-02, 85 S.Ct. 377, 382, 13 L.Ed.2d 290

(1964). The Commerce Clause has long been recognized as “one of

the most prolific sources of national power,” H.P. Hood & Sons,

Inc. v. Du Mond, 336 U.S. 525, 534-35, 69 S.Ct. 657, 93 L.Ed. 865

(1949), if not the single greatest source of congressional

regulatory authority. See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW

§ 5-4 (2d ed. 1988). Chief Justice Marshall early recognized “that

the Commerce Clause grants Congress extensive power and ample

discretion to determine its appropriate exercise.” Lopez, 514 U.S.

at ---, 115 S.Ct. at 1634 (Kennedy, J., concurring) (citing Gibbons

v. Ogden, 9 Wheat. 1, 194, 196, 22 U.S. 1, 6 L.Ed. 23 (1824)). The

exercise of this power over the past century has helped bind the

disparate states of the union into a single economic whole whose

productivity is unsurpassed in world history.

Against this backdrop, we do not read Lopez as counseling a

5
return to a “horse-and-buggy definition of interstate commerce.”2

As Justice Kennedy, joined by Justice O’Connor, pointed out in his

Lopez concurrence:

The history of the judicial struggle to interpret the
Commerce Clause during the transition from the economic
system the Founders knew to the single, national market
still emergent in our era counsels great restraint before
the Court determines that the Clause is insufficient to
support an exercise of national power.

Lopez, 514 U.S. at ---, 115 S.Ct. at 1634 (Kennedy, J.,

concurring).

As Justices Kennedy and O’Connor recognized, our federal

structure exists in more than one dimension. The courts must be

vigilant to prevent Congress from asserting powers not delegated to

the national government by the Constitution, but must themselves

avoid usurping the national legislature’s policy-making role in the

commercial sphere. As the next section makes clear, the

Constitution’s delegation to Congress of the power to regulate the

nation’s commercial life commands a significant degree of judicial

deference.

B. Standard of Review and Level of Scrutiny

We exercise plenary review of the district court’s legal

conclusion that the Hobbs Act is constitutional, and we review the

statute itself under the deferential “rational basis” standard.

The latter point bears emphasis. In the wake of Lopez, courts are

2
Kathleen F. Brickey, Crime Control and the Commerce Clause:
Life after Lopez, 46 CASE W. L. REV. 801, 803 (1996) (quoting
Franklin D. Roosevelt, press conference (May 31, 1935), in 4 The
Public Papers and Addresses of Franklin D. Roosevelt, 200, 221
(Samuel I. Rosenman ed., 1938)).

6
less likely to take congressional invocations of the commerce power

at face value, at least when the regulated activity’s relation to

interstate commerce is “[in]visible to the naked eye . . . .”

Lopez, 514 U.S. at ---, 115 S.Ct. at 1632. In that sense, we read

Lopez as an admonition that rational basis scrutiny is not

tantamount to an abdication of the judiciary’s responsibility “to

say what the law is.” Marbury v. Madison, 1 Cranch. 137, 177, 5

U.S. 137, 2 L.Ed. 60 (1803), cited in Lopez, 514 U.S. at ---, 115

S.Ct. at 1633. “[D]eference is not acquiescence . . . .” United

States v. Knutson, 113 F.3d 27, 29 (5th Cir. 1997) (per curiam).

However, nothing in Lopez suggests that the Supreme Court has

replaced the rational basis test with a more exacting standard. To

the contrary:

[T]he Court made clear that federal Commerce Clause
legislation continues to merit a high degree of judicial
deference, and that courts considering the
constitutionality of such legislation should apply only
‘rational basis’ review. Accordingly, we must limit our
inquiry to a determination whether Congress could have
had a rational basis to conclude that its enactment of
[the statute] was a valid exercise of its commerce power.

Id. (footnotes and internal citations omitted; emphasis added).

We are thus bound to uphold the Hobbs Act if Congress could

have had a rational basis for concluding that its enactment was

valid under the Commerce Clause. The Lopez Court catalogued three

principal ways in which Congress may validly exercise its

constitutional power to regulate interstate commerce. Before

considering the Hobbs Act itself, we turn to the Lopez decision and

its taxonomy of the commerce power.

C. Lopez and the Three Categories of Commercial Legislation

7
 The statute at issue in Lopez was the Gun-Free School Zones

Act of 1990, 18 U.S.C. § 922(q)(1)(A), which made it a federal

crime to possess a firearm in the vicinity of a school. Alfonso

Lopez, Jr., a twelfth-grade student at Edison High School in San

Antonio, had been arrested for carrying a handgun and five bullets

to school. This court reversed his conviction for violating the

Gun-Free School Zones Act, and the Supreme Court affirmed, holding

that the statute was unsupported by the congressional power to

regulate commerce. United States v. Lopez, 2 F.3d 1342 (5th Cir.

1993), aff’d, 514 U.S. 549, 115 S.Ct. 1624.

The Lopez Court described “three broad categories of activity”

that Congress may regulate under the commerce power. 514 U.S. at

---, 115 S.Ct. at 1629. “First, Congress may regulate the use of

the channels of interstate commerce.” Id. This category extends

beyond the regulation of highways, railroads, air routes, navigable

rivers, fiber-optic cables and the like. Under pre-Lopez

precedents, Congress may legislate “to keep the channels of

interstate commerce free from immoral and injurious uses . . . .”

Id. (quoting Heart of Atlanta Motel, Inc. v. United States, 379

U.S. 241, 256, 85 S.Ct. 348, 357, 13 L.Ed.2d 258 (1964) (internal

quotation marks and citation omitted)). This branch of the

commerce power thus provided a basis for the civil rights

legislation prohibiting racial discrimination in public

accommodations upheld in Heart of Atlanta Motel. This category

also is generally understood to encompass legislation aimed at

preventing the misuse of the channels of commerce, such as statutes

8
prohibiting interstate traffic in kidnapped persons, stolen goods,

and prostitutes. See, e.g., 18 U.S.C. §§ 1201, 2314, 2421.

The second category comprises “the instrumentalities of

interstate commerce, or persons or things in interstate commerce.”

Lopez, 514 U.S. at ---, 115 S.Ct. at 1629. This branch of the

commerce power supports, for example, federal legislation

prohibiting the destruction of aircraft and the theft of goods from

interstate shipments. Lopez, 514 U.S. at ---, 115 S.Ct. at 1629

(citing Perez v. United States, 402 U.S. 146, 150, 91 S.Ct. 1357,

28 L.Ed.2d 686 (1971)).

Finally, the commerce power “includes the power to regulate

those activities having a substantial relation to interstate

commerce, i.e., those activities that substantially affect

interstate commerce.” Id. at ---, 115 S.Ct. at 1629-30 (citations

omitted). Lopez squarely held that under this third category,

federal legislation concerning an intrastate activity is

permissible only when the regulated activity “substantially

affects” interstate commerce. A “relatively trivial” effect on

interstate commerce cannot serve as a pretext for the “broad

general regulation of state or private activities.” Id. at 1630

(internal quotation marks and citation omitted). Nonetheless,

activities which at first blush appear to be local in character

repeatedly have been held subject to federal regulation because,

either standing alone or cumulatively, they substantially affect

interstate commerce. According to the Supreme Court, examples

include coal mining, loan- sharking, the operation of racially

9
segregated restaurants and hotels, and the production and

consumption of homegrown wheat. Id. at 1630 (citing Hodel v.

Virginia Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264,

101 S.Ct. 2352, 69 L.Ed.2d 1 (1981), Perez, McClung, Heart of

Atlanta Motel, and Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82,

87 L.Ed. 122 (1942)).3

In Lopez, the Supreme Court quickly dismissed the possibility

that the Gun-Free School Zones Act fell within either of the first

two categories. Lopez, 514 U.S. at ---, 115 S.Ct. at 1630. The

Court then analyzed the statute under the third category and found

it constitutionally deficient for three reasons. First, the Gun-

Free School Zones Act had “nothing to do with ‘commerce’ or any

sort of economic activity, however broadly one might define those

terms.” Id. at 1630-31. Because the possession of a gun near a

school has no demonstrable effect on commerce, Congress could not

rationally have concluded that the proscribed conduct, “viewed in

the aggregate,” substantially affected interstate commerce. Id. at

1631. Second, the Gun-Free School Zones Act did not contain an

express jurisdictional element which would have “ensure[d], through

case-by-case inquiry, that the firearm possession in question

affect[ed] interstate commerce.” Id. at 1631. Finally, there were

3
The Lopez opinion cited Heart of Atlanta Motel in its
discussion of both the first and third categories. Compare 514
U.S. at ---, 115 S.Ct. at 1629 with id. at ---, 115 S.Ct. at 1630.
Recourse to the formal categories described in Lopez is
unnecessary when an act of Congress directly regulates interstate
commerce or enterprises engaged in interstate commerce. See United
States v. Robertson, 514 U.S. 669, 115 S.Ct. 1732, 131 L.Ed.2d 714
(1995) (per curiam).

10
neither legislative findings nor a legislative history illuminating

how Congress rationally could have determined that gun possession

in school zones substantially affected interstate commerce.

Congressional findings, though not strictly required, might have

revealed a constitutional basis for the legislation “even though no

. . . substantial effect [upon interstate commerce] was visible to

the naked eye . . . .” Id. at 1631-32.

We think Lopez makes clear that legislation concerning an

intrastate activity will be upheld if Congress could rationally

have concluded that the activity, in isolation or in the aggregate,

substantially affects interstate commerce. This standard will

almost certainly be met if a statutory jurisdictional element

ensures that an effect on interstate commerce must be proved in

each case. Even in the absence of such a statutory requirement, we

will uphold the challenged statute if the regulated conduct’s

connection to interstate commerce is manifest, i.e., “visible to

the naked eye.” If we do not readily perceive a clear connection

to interstate commerce, we may nevertheless uphold the statute if

the nexus is satisfactorily explained by congressional findings or

the legislative history. Conversely, if the statute, the

congressional findings, and the legislative history provide no

rational basis for concluding that the regulated activity has the

required nexus to interstate commerce, the statute must fall.

D. The Hobbs Act

The Hobbs Act imposes criminal penalties on anyone who “in any

way or degree obstructs, delays, or affects commerce or the

11
movement of any article or commodity in commerce, by robbery or

extortion[,] or attempts or conspires so to do . . . .” 18 U.S.C.

§ 1951(a). The statutory definition of “commerce” is co-extensive

with constitutional limits; the Act defines “commerce” to include

“all commerce between any point in a State . . . and any point

outside thereof; . . . and all other commerce over which the United

States has jurisdiction.” 18 U.S.C. § 1951(b)(3).

There are thus two elements in a Hobbs Act prosecution: (1) a

robbery, act of extortion, or an attempt or conspiracy to rob or

extort; and (2) an interference with interstate commerce. Stirone

v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 274, 4 L.Ed.2d

252 (1960). It follows from the second element that an effect on

commerce must be proven in every case. However, the pre-Lopez case

law firmly established that this so-called jurisdictional element

is satisfied by a showing of a minimal effect on interstate

commerce.4 United States v. Box, 50 F.3d 345, 352 (5th Cir.)

(internal citation omitted) (“slight” effect), cert. denied, ---

U.S.---, 116 S.Ct. 309, 133 L.Ed.2d 213 (1995); United States v.

Collins, 40 F.3d 95, 99 (5th Cir. 1994) (“de minimis” effect),

cert. denied, ---U.S.---, 115 S.Ct. 1986, 131 L.Ed.2d 873 (1995).

Moreover, a robbery or extortionate act that depletes the assets of

4
Courts use the phrase “jurisdictional” in this context as
shorthand for the idea that absent a nexus to interstate commerce,
the federal government is not empowered to regulate. Of course,
the commercial nexus element in the Hobbs Act is not
“jurisdictional” in the sense that a failure of proof would divest
the federal courts of adjudicatory power over the case. The
commercial nexus requirement is in fact a substantive element of
the crime. With that caveat, we will follow the general usage by
referring to the Act’s commercial nexus element as jurisdictional.

12
a commercial enterprise, impairing or delaying its ability to buy

goods or services in interstate commerce, satisfies the

jurisdictional test. See, e.g., Collins, 40 F.3d at 99; United

States v. Martinez, 28 F.3d 444, 445 (5th Cir.), cert. denied, 513

U.S. 910, 115 S.Ct. 281, 130 L.Ed.2d 197 (1994).

The Supreme Court long ago upheld the Hobbs Act against a

Commerce Clause challenge, reasoning that the statute “is directed

at the protection of interstate commerce . . . .” United States v.

Green, 350 U.S. 415, 420, 76 S.Ct. 522, 526, 100 L.Ed. 494 (1956).

The question is whether the Act remains valid in light of its

requirement of a de minimis effect on interstate commerce, or

whether Lopez requires a substantial effect. As explained below,

we conclude that even if Lopez imposes a new requirement of

substantiality, that requirement applies to the class of cases

prosecuted in the aggregate; in any particular case, proof of a

slight effect on interstate commerce suffices.

E. Constitutionality of the Hobbs Act under Lopez

The Hobbs Act differs from the late Gun-Free School Zones Act

in critical respects. The Gun-Free School Zones Act concerned an

activity, gun possession in and near schools, which bore no evident

relation to interstate commerce. In contrast, the nexus between

robbery and commerce is obvious: a successful robbery results in

the transfer of money or goods from the victim to the perpetrator.

Where, as in this case, the money belongs to commercial

establishments engaged in interstate commercial transactions, the

connection between the crime and interstate commerce is not

13
difficult to discern.

In addition, the Hobbs Act includes an express jurisdictional

element of the sort conspicuously lacking in the Gun-Free School

Zones Act. This requirement explicitly limits the scope of the

Hobbs Act to those robberies and extortion schemes which affect

interstate commerce. Compare Lopez, 514 U.S. at ---, 115 S.Ct. at

1631 (faulting the Gun-Free School Zones Act for the absence of an

“express jurisdictional requirement which might limit its reach to

a discrete set of firearm possessions that . . . have an explicit

connection with or effect on interstate commerce”).5

Appellant nonetheless invokes Lopez to challenge his Hobbs Act

convictions on several grounds. Appellant’s terminology is none

too precise, but we understand him to be making three distinct

arguments. First, he claims that the Hobbs Act is unconstitutional

on its face because it allows convictions on evidence of less than

a substantial effect on interstate commerce. Second, he argues

that the Act is unconstitutional as applied to a broad category of

cases, including this one, involving local crimes whose effect on

interstate commerce is less than substantial. Finally, he argues

that the indictment, evidence, and jury instructions were deficient

because they did not adhere to the substantial effect requirement.

5
The Hobbs Act may also have a more compelling legislative
history than did the Gun-Free School Zones Act. See Bolton, 68
F.3d at 399 (quoting H.R. Rep. No. 238, 79th Cong., 1st Sess.
(1945), reprinted in 1946 U.S.C.C.A.N. 1360, 1370 (“[T]hose persons
who have been impeding interstate commerce . . . shall not be
permitted to continue such practices without a sincere attempt on
the part of Congress to do its duty of protecting interstate
commerce.”)). However, we need not belabor the legislative record
to decide this appeal.

14
 1. Appellant’s Facial Challenge

For appellant to prevail on his claim that the Hobbs Act is

facially unconstitutional, he must establish that there is no set

of circumstances in which the Act be applied constitutionally. See

Barnes v. Mississippi, 992 F.2d 1335, 1342 (5th Cir.) (internal

citations omitted), cert. denied, 510 U.S. 976, 114 S.Ct. 468, 126

L.Ed.2d 419 (1993). That is, he must show that Congress could not

rationally have determined that any single instance of robbery or

extortion proscribed by the Act falls within the reach of its

regulatory authority under the Commerce Clause.

This places a heavy burden on the appellant. “A facial

challenge to a legislative Act is . . . the most difficult

challenge to mount successfully.” Webster v. Reproductive Health

Services, 492 U.S. 490, 524, 109 S.Ct. 3040, 3060, 106 L.Ed.2d 410

(1989) (O’Connor, J., concurring) (internal quotation marks and

citation omitted). The mere possibility that the Act “might

operate unconstitutionally under some conceivable set of

circumstances is insufficient to render it wholly invalid . . . .”

Id. (internal quotation marks and citation omitted).

Appellant seeks to establish that the Hobbs Act is invariably

unconstitutional in application by following the Supreme Court’s

reasoning in Lopez. He claims that the Hobbs Act, like the Gun-

Free School Zones Act, neither regulates the use of the channels of

commerce nor protects persons and things in, or instrumentalities

of, interstate commerce. He then purports to explain why the Act

cannot be applied constitutionally as a regulation of intrastate

15
activities which substantially affect interstate commerce.

This argument is utterly misguided. It relies on the

unsupported assumption that the Hobbs Act can be applied

constitutionally, if at all, solely under the third branch of the

commerce power. We think it obvious that in various factual

settings, the Act proscribes conduct which Congress may reach under

the first two branches of the commerce power. For example, a Hobbs

Act prosecution for hijacking a truck and its cargo on an

interstate highway surely could be upheld under either the first or

second branch of the commerce power.

On that basis alone, appellant cannot meet his burden of

establishing that the Hobbs Act is invariably unconstitutional in

all factual circumstances.6 Moreover, as we explain below, the

Hobbs Act can be applied constitutionally under the third branch of

the commerce power, given the requisite effect on interstate

commerce. Because there are circumstances in which the Hobbs Act

operates constitutionally, we reject appellant’s facial challenge.

2. Appellant’s As-Applied Challenge

The main thrust of appellant’s brief is that the Hobbs Act is

unconstitutional as applied to intrastate activities, such as the

subject robberies, which affect interstate commerce. His theory

6
Appellant’s facial challenge is essentially a claim that the
statute sweeps too broadly; in his view, “the Hobbs Act overreaches
impermissibly beyond the ‘substantially affects’ restraint imposed
by the Supreme Court in Lopez.” Unfortunately for appellant, the
Supreme Court has “not recognized an ‘overbreadth’ doctrine outside
the limited context of the First Amendment.” Webster, 492 U.S. at
524, 109 S.Ct. at 3060 (O’Connor, J., concurring) (internal
quotation marks and citation omitted).

16
with respect to this genus of Hobbs Act prosecutions is simple and

rather elegant; we view it also to be wrong.

Appellant contends that because a specific Hobbs Act

conviction requires only an “effect” on interstate commerce, the

Lopez requirement of a “substantial effect” in cases involving

intrastate activity is not met. The government responds that even

if the substantial effect test applies, the Hobbs Act passes it.7

In determining whether the effect of a regulated activity on

interstate commerce is substantial, courts must look to the

cumulative effect of all similar instances of the regulated

activity, carried on in different places by different persons.

Lopez did not undermine this principle, which was articulated

decades ago in Wickard v. Filburn. To the contrary, the Lopez

court categorically stated:

Where a general regulatory statute bears a substantial
relation to commerce, the de minimis character of
individual instances arising under that statute is of no
consequence.

7
The government suggests in passing that the substantial
effect test may not apply. Of the five circuits to have upheld the
Hobbs Act against Lopez-based challenges, only the Tenth Circuit
did so by applying the substantial effect test. See Bolton, 68
F.3d at 99. The Ninth Circuit and District of Columbia Circuit
explicitly held the test inapplicable on the ground that the Hobbs
Act regulated interstate, rather than intrastate, activities. See
Harrington, 108 F.3d at 1470; Atcheson, 94 F.3d at 1242-43.
These cases relied on the Supreme Court’s holding that the
substantial effect test governs only “purely intrastate commercial
activities that nonetheless have substantial interstate effects.”
United States v. Robertson, 514 U.S. 669, ---, 115 S.Ct. 1732,
1733, 131 L.Ed.2d 714 (1995) (per curiam) (emphasis in original)
(internal citation omitted).
In our view the Hobbs Act regulates both interstate commercial
activities and intrastate activities that affect interstate
commerce. In any event, we need not decide whether Robertson
supplies an alternative basis for upholding the Act.

17
Lopez, 514 U.S. at ---, 115 S.Ct. at 1629 (internal quotation marks

and citation omitted).

The third branch of the commerce power would be negligible if

its exercise were limited to particular incidents, each of which

individually has a substantial effect upon the nation’s commerce.

Under this straitened interpretation of congressional power, such

clearly established uses of the commerce power as the mining

legislation in Hodel and the civil rights legislation in McClung

would be called into question. As our court has noted, however,

Lopez “did not purport to eliminate or erode well-established

Commerce Clause precedents.” Knutson, 113 F.3d at 29 (citing

Lopez, 514 U.S. at ---, 115 S.Ct. at 1634).

It is a bedrock principle of modern Commerce Clause

jurisprudence that Congress may regulate a category of activity

whose many instances, taken together, substantially affect

interstate commerce. The Court explained this aggregation

principle in McClung, a case involving a restaurant which bought

meat from a local supplier who in turn was supplied from out of

state. The Court observed:

It goes without saying that, viewed in isolation, the
volume of food purchased at Ollie’s Barbecue from sources
supplied from out of state was insignificant when
compared with the total foodstuffs moving in commerce.

379 U.S. at 300-01, 85 S.Ct. at 382. The Court nonetheless found

the requisite connection to interstate commerce, quoting the

Wickard Court’s reasoning for applying federal agricultural

regulations to the production and consumption of homegrown wheat:

That appellee’s own contribution to the demand for wheat

18
 may be trivial by itself is not enough to remove him from
the scope of federal regulation where, as here, his
contribution, taken together with that of many others
similarly situated, is far from trivial.

Id. at 301, 85 S.Ct. at 382 (quoting Wickard, ---U.S. at 127-28, 63

S.Ct. at 90). The same note was sounded by Justice Black,

concurring in both McClung and Heart of Atlanta Motel:

[I]n deciding the constitutional power of Congress in
cases like the two before us we do not consider the
effect on interstate commerce of only one isolated,
individual, local event, without regard to the fact that
this single local event when added to many others of a
similar nature may impose a burden on interstate commerce
by reducing its volume or distorting its flow.

379 U.S. at 275, 85 S.Ct. at 367 (Black, J., concurring).

The Tenth Circuit relied on this aggregation principle to

uphold the Hobbs Act against a Lopez-based challenge. See United

States v. Bolton, 68 F.3d 396, 399 (10th Cir. 1995), cert. denied,

---U.S.---, 116 S.Ct. 966, 133 L.Ed.2d 887 (1996). The court

observed that “Lopez did not . . . require the government to show

that individual instances of the regulated activity substantially

affect commerce . . . .” Id. at 399. The Tenth Circuit instead

read Lopez as allowing for the application of federal law based on

a de minimis nexus to interstate commerce, provided that the

“statute regulates an activity which, through repetition, in

aggregate has a substantial effect on interstate commerce.” Id.

(internal citation omitted). The court found that the Hobbs Act

was such a statute and upheld its constitutionality. Id.

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

19
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.

Unlike gun possession in a school zone, robberies affecting

interstate commerce are precisely the sort of acts “that might,

through repetition elsewhere, substantially affect . . . interstate

commerce.” Cf. Lopez, 514 U.S. at ---, 115 S.Ct. at 1634.

In this case, there was evidence that the stores targeted by

Robinson’s gang were robbed of thousands of dollars and, moreover,

that the robberies impaired their ability to cash out-of-state

checks and to restock goods shipped from other states. The jury

necessarily found that this disruption amounted to an effect on

interstate commerce. We have no doubt that such disruptions, if

repeated at retail stores across the nation, would amount to a

substantial effect upon interstate commerce. Accordingly, we

reject appellant’s claim that with respect to his intrastate

activities, which may have affected interstate commerce less than

substantially, the Act was unconstitutionally applied.

20
 3. Related Prosecutorial and Trial Errors

Appellant presents a final cluster of arguments relating to

the supposed inadequacy of the indictment, proof, and jury

instructions. He contends that the indictment failed to allege

that the subject robberies substantially affected interstate

commerce. He further contends that the evidence at trial was

insufficient to prove a substantial effect on interstate commerce.

Finally, he claims that the district court erred by failing to

instruct the jury that such proof was required.

Assuming these arguments have been preserved for review, they

are entirely without merit. Because a Hobbs Act robbery, viewed in

isolation, need not have more than a minimal effect upon interstate

commerce, appellant’s arguments fall of their own weight.

Appellant’s challenge to his firearm conviction was entirely

derivative of his Hobbs Act arguments. A conviction under 18

U.S.C. § 924(c)(1) must be premised on the use or carrying of a

firearm in connection with a crime subject to federal jurisdiction.

Robinson contends that because the underlying robberies were not

constitutionally within the reach of federal law, his firearm

conviction is invalid. Our finding that the Hobbs Act was applied

constitutionally disposes of this argument. Accord Bolton, 68 F.3d

at 399 n.2.

Appellant urges reversal of his convictions on several

additional grounds. Having carefully considered the arguments in

light of the record and the applicable law, we hold that no

reversible error occurred. We affirm on all counts.

21
 F. First Principles Revisited

Because of the profound issues raised by the Lopez decision,

and in light of the guerilla campaign now being waged against

federal statutes in the name of Lopez,8 we offer these concluding

observations.

We are acutely aware that the robbery of a neighborhood store,

or even several such stores in one large city, is not the

prototypical Hobbs Act violation. As other courts have noted, the

principal evil which inspired the passage of the Hobbs Act was,

quite literally, highway robbery, especially those robberies

committed by racketeers operating through labor unions. See, e.g.,

United States v. Woodruff, 941 F.Supp. 910, 916-17 (N.D. Cal. 1996)

(internal citations omitted). As the Eighth Circuit has aptly

observed, the congressional authors of the Hobbs Act “no doubt . .

. had in mind primarily offenses with a broad impact on interstate

commerce, as opposed to local robberies normally prosecuted under

state law[.]” Farmer, 73 F.3d at 843. However, the reach of a

statute is not determined by its authors’ thoughts but by their

words, and the text of the Hobbs Act “in no way exclude[s]

prosecutions for single local robberies,” so long as the

requirement of a nexus to interstate commerce is met. Id.

8
By one count, by December 1995 (a mere eight months after the
Lopez decision) more than eighty district and circuit court
opinions had decided Lopez-based challenges to federal criminal
statutes. See Andrew Weis, Note, Commerce Clause in the Cross-
Hairs, 48 STAN. L. REV. 1431, 1432 (1996). Among the most frequently
challenged statutes are those prohibiting machine-gun possession,
carjacking, failure to pay child support, and gun possession by
felons. Id. at 1432-33 (internal citations omitted).

22
 Eloquent voices have been raised against precisely this sort

of federalization of the criminal law.9 Among the familiar

complaints are that the creation of new federal crimes burdens the

federal courts, delaying civil trials; that similarly situated

defendants receive unequal procedural protections and sentences,

depending on whether they are charged under state or federal law;

and that the expansion of federal jurisdiction impedes the ability

of the states to innovate in the field of criminal justice. Andrew

Weis, Note, Commerce Clause in the Cross-Hairs, 48 STAN. L. REV.

1431, 1439-40 (1996).

Whether the proliferation of federal crimes should be lamented

or celebrated, however, is not for us to say. The federal courts

were not elected to represent the will of the people and ought not

superintend congressional policy judgments. Our opinion today does

not address the wisdom of applying the Hobbs Act to local crimes

that affect interstate commerce, but only the constitutionality of

doing so. In upholding the Act, we have relied on the analytical

framework of Lopez, interpreted consistently with several decades

of prior Commerce Clause decisions.

In our view, Lopez teaches two quite distinct lessons. First,

Lopez stands for the principle that certain activities, but not

9
As the late Judge Henry J. Friendly put it:

The Founding Fathers, I think, would have been surprised
to find the federal courts trying cases of corruption in
the New York City administration simply because one of
the participants had rowed across the Hudson in the
course of the criminal venture.

HENRY J. FRIENDLY, FEDERAL JURISDICTION: A GENERAL VIEW 61 (1973).

23
others, can be regulated under the Commerce Clause. Lopez holds

that the proper objects of the interstate commerce power are

interstate commerce and those local activities which, in isolation

or in the aggregate, substantially affect it. The Court’s

elaboration of this point yielded the rules of decision which we

employed, with little difficulty, in our analysis today.

The second, more subtle lesson of Lopez is that there are

“outer limits” to the commerce power, beyond which Congress may not

trespass. See Lopez, 514 U.S. at ---, 115 S.Ct. at 1628. These

limits exist because of the importance of the states in the

structure of our federal system, and because of the disastrous

consequences which would follow were we to “obliterate the

distinction between what is national and what is local.” Id. at --

-, 115 S.Ct. at 1629.

Precisely how the lower federal courts are to police the outer

boundary of the commerce power is left unsaid.10 In particular, we

do not yet know whether a statute which passes the substantial

effect test of Lopez may nonetheless be struck down as intruding

into areas traditionally managed by the states. Previous judicial

experiments in protecting the states from federal encroachment

under the commerce power have a mixed record of success. See

National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49

10
At one point the Court suggests that a plain statement rule
may apply. See id. at ---, 115 S.Ct. at 1631 (quoting United
States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d
488 (1971) (“[U]nless Congress states its purpose clearly, it will
not be deemed to have significantly changed the federal-state
balance.”)).

24
L.Ed.2d 245 (1976), overruled by Garcia v. San Antonio Metro.

Transit Auth., 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016

(1985). But see New York v. United States, 505 U.S. 144, 176, 112

S.Ct. 2408, 2428, 120 L.Ed.2d 120 (1992) (federal government cannot

“commandeer[] the legislative processes of the States . . . .”

(internal quotation marks and citation omitted)).

As the circuit that struck down the Gun-Free School Zones Act,

we are acutely aware of the importance of protecting the integrity

of the states and preventing the commerce power from becoming a

national police power. In our own cases, we have taken steps

toward setting an outer limit on the commerce power by

circumscribing the government’s ability to prosecute crimes

targeting private residences and individuals in their homes. See

United States v. Collins, 40 F.3d 95, 99 (5th Cir. 1994) (holding

interstate commerce nexus “too attenuated” where employee of

national computer company was robbed at home); see also United

States v. Corona, 108 F.3d 565, 570 (5th Cir. 1997) (casting doubt

on sufficiency of commercial nexus in a federal arson prosecution

based on a fire at a private home) (dicta). Nothing in today’s

decision forecloses the development of this line of cases.

Despite these efforts, we recognize that there is a danger in

the courts transforming a general axiom of federalism into a rule

of decision to determine the outcome of particular cases. A

jurisprudence of undefined “outer limits” surely would repose too

much discretion in the courts. See, e.g., Woodruff, 941 F.Supp. at

913 (striking down Hobbs Act conviction in order “to correct an

25
imbalance in the scales of power”). Our task as judges is not to

go abroad in search of dragons to slay. In this circuit, we shall

apply the doctrinal rules articulated by Lopez and other binding

precedents, albeit with a heightened sensitivity to potential

federal incursions into the traditional sphere of state authority.

Fortunately, the case before us does not involve a federal law

that intrudes into an area traditionally within the exclusive

purview of the states. This is not a case involving public

education, domestic relations or municipal zoning.11 Although this

is a criminal case, the statute at issue was enacted to protect the

nation’s commerce from local threats which, in the aggregate, could

substantially affect that commerce. There is no usurpation here.

In sum, we uphold the Hobbs Act and its application to

Robinson, confident that our decision does no violence to the

principle of limited federal power articulated in Lopez.

III. DISCUSSION OF SENTENCING ISSUES

Appellant was sentenced on September 6, 1996, to 210 months

imprisonment on the Hobbs Act counts and a consecutive term of 60

months on the firearm count. See generally UNITED STATES SENTENCING

COMMISSION, GUIDELINES MANUAL (1995). He contends that the district

court impermissibly enhanced his offense level based on the

“vulnerable victim” guideline, U.S.S.G. § 3A1.1. We agree.12

11
We use these as examples of subjects traditionally
superintended by state law. We intimate no opinion as to whether
federal legislation regulating any of these areas might be
constitutional under the Commerce Clause.
12
We reject appellant’s contention that the district court
erred by enhancing his offense level for obstruction of justice.

26
 The Sentencing Guidelines provide for a 2-level enhancement of

the defendant’s offense level for offenses against “unusually

vulnerable” victims. The applicable guideline states:

If the defendant knew or should have known that a victim
of the offense was unusually vulnerable due to age,
physical or mental condition, or that a victim was
otherwise particularly susceptible to the criminal
conduct, increase by 2 levels.

U.S.S.G. § 3A1.1(b).

By its terms, this section applies only if (1) a victim was

unusually vulnerable because of age, physical or mental condition,

or was “otherwise particularly susceptible to the criminal

conduct”; and (2) the defendant actually knew or should have known

of the victim’s vulnerability or susceptibility. See United States

v. Castellanos, 81 F.3d 108, 110 (9th Cir. 1996).

Appellant received a “vulnerable victim” enhancement for each

count of conviction. His enhanced offense level for each count was

then incorporated into the calculation of his sentence under the

guidelines’ rules for grouping multiple counts. See U.S.S.G. Ch.

3, Pt. D. Robinson objected to each vulnerable victim enhancement

in the court below and now appeals these adjustments to his offense

level. We review the district court’s interpretation of the

guidelines de novo; we review a finding of unusual vulnerability

for clear error and to determine whether the district court’s

conclusion was “plausible in light of the record as a whole.”

U.S.S.G. § 3C1.1. We likewise reject his claim that the district
court impermissibly double-counted the conduct underlying his
firearm conviction as the basis for both a consecutive sentence and
an offense level enhancement. See U.S.S.G. §§ 2B3.1(b)(2)(A),(C);
id. § 2K2.4, comment., note 2; id. § 3D1.1, comment., note 1.

27
United States v. Scurlock, 52 F.3d 531, 541-42 (5th Cir. 1995);

United States v. Brown, 7 F.3d 1155, 1160 (5th Cir. 1993).

The vulnerable victim enhancements in this case were proposed

in the Presentence Investigation Report (PSR) prepared by the

probation officer. Prior to sentencing, appellant objected,

contending that the victims in this case were not “unusually

vulnerable.” He pointed out that according to the guidelines

commentary, “a bank teller is not an unusually vulnerable victim

solely by virtue of the teller’s position in a bank.” U.S.S.G. §

3A1.1(b), comment., note 2. Robinson argued that the merchants

victimized in this case were analogous to the bank teller described

in the commentary, and were distinguishable from the commentary’s

examples of unusually vulnerable victims--defrauded cancer patients

and handicapped robbery victims.

In an addendum to the PSR, the probation officer responded

that the vulnerable victim enhancement was warranted. She stated:

The victims targeted in these offenses were Asian or
Korean [sic] business people who were either the owners
of a convenience store or some other business
establishment which kept large amounts of cash. The
business establishments were in ethnic minority
neighborhoods and cashed checks for people living in the
neighborhood. It is the probation office[’]s position
that these victims were more susceptible to this type of
offense and were targeted for that reason.

The district court, expressly adopting the probation officer’s

reasoning, held that Robinson “knew or should have known that these

robberies were being committed with the intention of preying upon

Asian and Korean [sic] business people and that these individuals

were selected because of their vulnerability.” The government

28
seeks to uphold this enhancement on the ground that the Asian-

American merchants targeted “were not as ‘street-savvy’ or ‘crime-

conscious’” as other merchants. The government cites Thompson’s

testimony that Asian-Americans were perceived as careless in

handling large sums of cash.

We hold that the district court clearly erred in finding that

these victims were “unusually vulnerable.” The guidelines do not

support the view that members of racial minority groups, in this

case Asian-Americans, are unusually susceptible to crime.13 Nor is

a vulnerable victim enhancement appropriate on the basis of the

victims’ employment as merchants in stores that deal in a high

volume of cash. Under the guidelines, a vulnerable victim

enhancement must stem from a personal trait or condition of the

victim, rather than the position he occupies or his method of doing

business. “Unless the criminal act is directed against the young,

the aged, the handicapped, or unless the victim is chosen because

of some unusual personal vulnerability, § 3A1.1[b] cannot be

employed.” United States v. Paige, 923 F.2d 112, 113 (8th Cir.

1991) (internal quotation marks and citations omitted).

Application of the vulnerable victim guideline is limited to cases

in which the victims “are in need of greater societal protection”

and the offenses are thus “more criminally depraved” than they

would be otherwise. Castellanos, 81 F.3d at 111 (internal

citations omitted).

13
The government has never claimed that these offenses were
racially motivated hate crimes subject to enhancement under
U.S.S.G. § 3A1.1(a).

29
 In this case, the victims were not selected because of any

“unusual personal vulnerability,” nor were they in demonstrably

greater need of societal protection than other crime victims. To

paraphrase the bank robber Willie Sutton, the victims’ stores were

targeted because that is where the money was. Their possession of

large amounts of cash and their perceived carelessness with it are

not grounds for enhancement under the vulnerable victim guideline.

We need not decide whether, in some circumstances, a victim’s

immigrant status or lack of street smarts might render him

“otherwise particularly susceptible” to crime within the meaning of

U.S.S.G. § 3A1.1(b). The district court did not rely on this

rationale, but on the fact that the victims were Asian-American

merchants who handled large bankrolls. A vulnerable victim

enhancement based upon the victim’s race, employment, and business

habits, without more, cannot stand.

IV. CONCLUSION

Appellant’s convictions are AFFIRMED. His sentence is VACATED

and the case REMANDED for resentencing.

30