Federal Crimes Outline - Professor Bolitho - Campbell Law - Part 2

e. Commerce Power

1. U.S. v. Lopez—Congress cannot extend the power so far as to embrace effects upon interstate commerce so indirect and remote that it would effectually obliterate the distinction between feds and state
2. 3 categories that are ripe for exercise
   1. The channels of IC
   2. Instrumentalities, people, and things in IC
   3. Activities with a substantial relation/effect on IC
3. Transportation in IC
   1. Champion v. Ames (Lottery Case) (1903)—allows control of items crossing state lines no matter what
   2. Hoke v. U.S. (1913)—allows FCL to touch where a victim is transported across state lines
   3. Basically, if something/one related to criminal activity can or does cross state lines, then it is within the jurisdiction
      1. Can also obtain jurisdiction via communication
      2. Sometimes the item must actually cross state lines
4. Affecting Commerce
   1. Main Issues—(1) how much affect is needed? (2) how does it affect commerce?
      1. Prevailing View—a de minimis effect is all that is needed.
   2. Two Primary Approaches to Obtaining Jurisdiction
      1. Include a jurisdictional element to the crime
      2. Class of Activities Approach
         1. Allows an act to be criminalized even without an interstate element to the crime
         2. Allowed when the class itself is interstate by nature
         3. Effectively, this removes the “affecting commerce” element from the crime
         4. Perez v. U.S. (1971)
            1. Somewhere along the line, the act must, directly or indirectly, have a “substantial economic effect”—Wickard v. Filburn
            2. But, there is no “particular effect” requirement
            3. The act must clearly fall within the class AND the class must be sufficiently definite
               1. The court has NO power to say the class is too broad if the entire class is within Congress’s power—MD v. Wirtz
                  1. Over-inclusivity/vagueness = ultra vires
         5. Test for Substantial Effect
            1. The law can only regulate economic activity by its nature. If it does regulate an economic activity, then you can aggregate that class. If not, there must be a jurisdictional hook.
   3. Commerce Clause Revolution Early 2000s
      1. U.S. v. Lopez (gun case)—to have jurisdiction, the law must substantially affect IC. Here, guns in schools were too tenuously related to the costs of crime in IC. You cannot pile inferences upon inferences to reach IC, because literally everything has some latent affect on commerce. There must be some judicially ascertainable limit on Congressional power, otherwise they would usurp the police power.
      2. U.S. v. Morrison—struck down a civil CoA in Violence Against Women Act because it had no bearing on IC. While Congressional findings are useful, they are not outcome determinative. Preventing violent crime is usually a police power issue.
      3. Laws like Gun Free School Zones and VAWA are allowed IF they have a jurisdictional element. —Al-Zubaidy
   4. End of the Revolution(?)
      1. Gonzalez v. Raich (2005)—analogous to Wickard—When Congress decides that the “total incidence” of a practice poses a threat to a national market, it may regulate its practice.
         1. i.e., allowed to regulate an item if Congress concludes that a failure to do so would undercut the regulation of IC in that commodity (N&P Clause). The conclusion of which only requires a rational basis for believing. Here, homegrown weed would be highly likely to work its way into the national market.
         2. The Court has no power to excise trivial individual exceptions to a broad statutory scheme.
   5. Proving Interstate Movement
      1. Can be shown by either (1) a record of the item’s movement OR
         (2) the use of circumstantial evidence to show a “minimal nexus” of the item and IC
   6. Intrastate Production of Child Porn
      1. Suffices as a Class of Activities because there is a rational basis for assuming that child porn crosses state lines.

a. The Guidelines were created by the Sentencing Reform Act of 1984’s implementation of the U.S. Sentencing Commission, which abolished the Parole Commission.

1. The Act also made sentences subject to appellate review to ensure the proper procedural application of the Guidelines.

b. History of Application

1. Mistretta—The Act removed rehabilitation as a permissible justification for imprisonment.
2. Road to Booker
   1. Apprendi (2000)—any fact that increases the penalty past the statutory maximum must be submitted to the jury and proven BRD
   2. Blakely (2004)—State guidelines that require the court to find facts by a preponderance of the evidence violated 6A.
3. U.S. v. Booker (2005)—Strict application is unconstitutional and violates the 6A rights to a jury trial, but they may be used in an advisory fashion.
   1. There were two separate opinions (1) Stevens—on the merits of the guidelines and (2) Breyer—the proper remedy for a 6A violation.
      1. Overall Holding—Facts affecting D’s sentencing must be (1) found by the jury AND (2) BRD.
      2. Opinion 1—On the Merits
         1. Increases in judicial power reduce the power of the jury, which stands as the last stalwart between a government and its citizens.
         2. Fact-finding duties cannot be removed from the jury.
         3. Guidelines are Constitutional, so long as they are NOT mandatory
      3. Opinion 2—Proper Remedy
         1. Through severability, the majority was able to strike the provisions of the Act that were unconstitutional without destroying the whole bill
         2. Two portions were excised, (1) the requirement of judges to sentence within the range AND (2) the requirement for de novo review of sentencing errors
         3. Effect—Allowed for compelled consideration of the guidelines, but only in an advisory fashion.
   2. EXCEPTION Almendarez-Torres—The judge IS allowed to find facts when they relate to a prior conviction
4. Statutory Factors Considered in Sentencing
   1. Nature and circumstances as well as the D’s history
   2. The need for the sentence to:
      1. Reflect the seriousness and promote respect for the law
      2. Afford adequate deterrence
      3. Protect public from future bad acts
      4. Provide D with educational and vocational training for purpose of corrections
   3. Need to avoid unwarranted disparities in treatment
   4. Need to provide restitution
5. If the court grants a variance, they will have to explain via 3553(a) factors.
   1. If the sentence is challenged, the appellate court will presume it is a reasonable sentence.
6. Kimbrough v. U.S. (2007) (RBG)
   1. No approach to the guidelines can be considered mandatory. Therefore, any law directing a minimum punishment MUST be followed. However, if there is a fact required to reach a new sentence, then it must be found BRD by the jury.
   2. Even where downward departure may be warranted on the basis of social mores, if a statute mandates a sentence, it must be followed.
7. EXCEPTIONS to Mandatory Minimums
   1. Cooperate
      1. Cooperation that provides substantial assistance to prosecute another may lead to this release. BUT it is in the sole discretion of the prosecutor
   2. Safety-Valve
      1. Judicial discretion is applied
      2. Requirements: (1) D cannot have more than 4 criminal history points; (2) no violence or guns involved in any; (3) not a leader of the enterprise; (4) D has debriefed law enforcement; (5) crime did not cause death or serious injury.
         1. Does NOT matter if the gov’t already knew the information
8. Reversing Sentences
   1. Gall
      1. Procedural issues are reviewed de novo
      2. Substantive issues are reviewed for abuse of discretion
         1. Upward variance—rarely vacated
         2. Downward variance—often vacated for substantive unreasonableness