The 1st Congress prohibited moonshine.
Appellant John Wacker argues that the section of the Drug Abuse Prevention and Control Act of 1970 under which he was convicted, 21 U.S.C. 841(a)(1) (the "Drug Act"), impermissibly regulates intrastate activities which do not substantially affect interstate commerce, in violation of the Tenth Amendment. Although he does not cite United States v. Lopez, 115 S. Ct. 1624 (1995), we assume that he asks us, in light of that recent decision, to reconsider our holding in United States v. King, 485 F.2d 353, 356 (10th Cir. 1973), that 21 U.S.C. 841(a)(1) is constitutional.United States v. Wacker, TENTH CIRCUITThis argument was recently rejected by the Fourth Circuit, see United States v. Leshuk, 65 F.3d 1105, 1111-12 (4th Cir. 1995), and we agree that it is without merit.
Unlike the Gun-Free School Zones Act, the statutory scheme at issue here neither “plows thoroughly new ground” nor “represents a sharp break with the long-standing pattern” of federal regulation. See Lopez, 115 S. Ct. at 1632 (quoting Lopez, 2 F.3d at 1366). Rather, § 860 addresses a clearly commercial activity that has long been within federal power to regulate. In contrast to the firearm possession at issue in Lopez, drug trafficking is an “economic enterprise” that substantially affects interstate commerce in numerous clear ways. Each individual instance of cocaine dealing, for example, represents the end point of a manufacturing, shipping, and distribution network that is interstate–and international–in nature. In fact, Congress included specific findings to that effect when it passed the Controlled Substances Act. Controlled Substances Act, Pub L. No. 91-513 (84 Stat. 1236), tit. II, § 101, 1970 U.S.C.C.A.N. 1444, 1444-45 (codified at 21 U.S.C. § 801); see also Controlled Substances Penalties Amendments Act of 1984, Pub. L. No. 98-473, ch. V, sec. 503(a), § 405A, 1984 U.S.C.C.A.N. (98 Stat.) 2068, 2069
United States v. Tucker, SIXTH CIRCUIT
Moreover, contrary to Leshuk's alternative contention, the Drug Act is not unconstitutional as applied if his possession and cultivation were for personal use and did not substantially affect interstate commerce. Although a conviction under the Drug Act does not require the government to show that the specific conduct at issue substantially affected interstate commerce, see Scales, 464 F.2d at 373, Lopez expressly reaffirmed the principle that "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." Lopez, 115 S. Ct. at 1629 (quoting Maryland v. Wirtz, 392 U.S. 183, 197 n.27 (1968)); see also United States v. Stillo, 57 F.3d 553, 558 n.2 (7th Cir. 1995); Scales, 464 F.2d at 374- 76. We thus reject Leshuk's Commerce Clause challenge to the constitutionality of the Drug Act.
United States v. Leshuk, FOURTH CIRCUIT
It is therefore not surprising that every court that has considered the question, both before and after the Supreme Court's decision in Lopez, has concluded that section 841(a)(1) represents a valid exercise of the commerce power. See, e.g., United States v. Edwards, ___ F.3d ___, ___, 1996 WL 621913, at *5 (D.C. Cir. Oct. 29, 1996); United States v. Kim, 94 F.3d 1247, 1249-50 (9th Cir. 1996); United States v. Bell, 90 F.3d 318, 321 (8th Cir. 1996); United States v. Lerebours, 87 F.3d 582, 584-85 (1st Cir. 1996); United States v. Wacker, 72 F.3d 1453, 1475 (10th Cir. 1995), cert. denied, 117 S. Ct. 136 (1996); United States v. Leshuk, 65 F.3d 1105, 1111-12 (4th Cir. 1995); United States v. Scales, 464 F.2d 371, 375 (6th Cir. 1972); Lopez, 459 F.2d at 953.Proyect v. United States, SECOND CIRCUIT
Many courts, including this court, have held that drug trafficking is precisely the kind of economic enterprise that substantially affects interstate commerce and that, therefore, comes within Congress's regulatory power under the Commerce Clause. See, e.g., United States v. Lerebours, 87 F.3d 582, 584-85 (1st Cir. 1996); United States v. Staples, 85 F.3d 461, 463, amended, ___ F.3d ___ (9th Cir. 1996) [1996 WL 359984]; United States v. Genao, 79 F.3d 1333, 1336-37 (2d Cir. 1996); United States v. Wacker, 72 F.3d 1453, 1475 (10th Cir. 1995), petition for cert. filed, No. 95-9284 (U.S. June 10, 1996); United States v. Brown, 72 F.3d 96, 97 (8th Cir. 1995) (per curiam), cert. denied, 116 S. Ct. 2581 (1996); United States v. Leshuk, 65 F.3d 1105, 1112 (4th Cir. 1995). Indeed, Congress made particularized findings to this effect when it enacted the full panoply of criminal laws anent controlled substances. See 21 U.S.C. § 801.Given both this background and the truism "that courts, when passing upon the constitutionality of a statutory provision, must view it in the context of the whole statutory scheme," Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 33 (1st Cir. 1993), it is not surprising to find that every court which has confronted the appellants' argument in the post-Lopez era has upheld section 860(a) against a Commerce Clause challenge. See, e.g., United States v. Tucker, ___ F.3d ___, ___ (6th Cir. 1996) [1996 WL 413411, at *1-4]; United States v. Rogers, ___ F.3d ___, ___ (7th Cir. 1996) [1996 WL 399850, at *11-12]; United States v. Clark, 67 F.3d 1154, 1165-66 (5th Cir. 1995), cert. denied, 116 S. Ct. 1432 (1996); United States v. Garcia-Salazar, 891 F. Supp. 568, 569-72 (D. Kan. 1995); see also United States v. McDougherty, 920 F.2d 569, 572 (9th Cir. 1990) (scuttling pre-Lopez Commerce Clause challenge to earlier version of § 860(a)), cert. denied, 499 U.S. 911 (1991). Because we do not doubt that Congress has the authority under the Commerce Clause to regulate an activity as clearly commercial in character as drug trafficking, and because the particular statute that the appellants challenge is nothing more than a sentence-enhancer applicable to certain proscribed drug trafficking activities, we hold that 21 U.S.C. § 860(a) does not trespass into constitutionally forbidden terrain.