UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
LARRY BERNARD JACKSON, DEFENDANT-APPELLANT

11th Cir. | 1997-04-25
No. 95-3468
Before BIRCH and DUBINA, Circuit Judges, and KRAVITCH, Senior Circuit Judge.
111 F.3d 101 Court of Appeals for the Eleventh Circuit (1997) Positive Treatment
Cited by 10 cases
Opinion of the Court
PER CURIAM:

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 See United States v. Ehrlich, 106 F. 3d 409 (9th Cir.1997) (table) (unpublished opinion available through computer assisted research); United States v. Hawkins, 104 F. 3d 437, 439-40 (D.C.Cir.1997); United States v. Ekinci, 101 F. 3d 838,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, 137 L.Ed.2d 319 (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.

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  • United States v. Castleberry, 116 F.3d 1384 (11th Cir. 1997)
    …United States v. Frost, 77 F. 3d 1319, 1320 (11th Cir.1996), judgment vacated on other grounds, - U.S.-, 117 S.Ct. 1816, 137 L.Ed.2d 1025 (1997). However, this Court has rejected similar Lopez challenges in other contexts. United States v. Jackson, 111 F. 3d 101 (11th Cir.1997)(Drag-Free School Zones Act did not exceed congressional authority under the Commerce Clause); United States v. McAllister, 77 F. 3d 387 (11th Cir.)(finding constitutional a statute which makes possession of a firearm by a felon a cri…
  • Coleman Jackson v. State Bd. OF Pardons & Paroles, 331 F.3d 790 (11th Cir. 2003)
    …Cir.1999) (per curiam) (“[Wje may affirm the district court's judgment on any ground that finds support in the record” (internal quotation marks omitted).). . "We review the constitutionality of a federal statute de novo.” United States v. Jackson, 111 F. 3d 101, 101 (11th Cir.1997) (per curiam). . Section 1997e(d) provides, (2) Whenever a monetary judgment is awarded in an action described in paragraph (1), a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of atto…
  • United States v. Cristino Saavedra, 148 F.3d 1311 (11th Cir. 1998)
    …merce Clause in enacting 21 U.S.C. § 860, which is the statutory authority for § 2D 1.2. As he conceded at oral argument, his position is foreclosed by our recent decision upholding the constitutionality of 21 U.S.C. § 860. United States v. Jackson, 111 F. 3d 101, 101-02 (11th Cir.), cert. denied, - U.S. ——, 118 S.Ct. 200, 139 L.Ed.2d 137 (1997). . The Statutory Index lists both § 2D 1.2 and § 2D 1.1, among several others, as applicable to convictions under 21 U.S.C. § 846. This does not support the contenti…

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