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 diffe rent 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

cler k at the cash register and pull out a .25 caliber pistol;2

instruct the clerk to open the cash drawer and then lay down on the

f loor; reach in and grab all of the paper currency in the cash

drawer; and tell th e 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 Liquo r, 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 jaile d 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 United1 Aggravated robbery under Texas law is a first degree felony,

T EX

. P EN

. C ODE § 29.03(b), and carries a punishment of a minimum of

5 and a maximum of 99 years. T EX

. P EN

. C ODE § 12.32.

2 529 U.S. 848 (2000).

3 529 U.S. 598 (2000).

3 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 T EX

. C ODE C RIM

. P ROC

. 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 th e United States Supreme

Court in United Stat es v. Jones 2 and United States v. Morrison

. 3

This is not the first occasion on whic h this Court has agonized

over the propriety of the gambit of prosecuti ng 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), another4

panel of this Court addressed factual circumstances amazingly

similar and raising the same constitutional issues. The H ickman

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 tha t 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 th ought to

substantially affect interstate commerce.

Appellant’s as-applied challenge to the Hobbs

Act coll apses 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

reco nsideration resulted in a tie vote among the judges

participating in that reconsideration, which left the R obinson

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 for5

this panel to reach a conclusion differ ent from the existing

Circuit precedent in Robinson

. But neither J ones nor Morrison

dealt with the Hobbs Act which is the heart of this c ontinuing

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 dec ision. While the tie vote on en banc

reconsider ation in H ickman certainly indicates that this Court

sitting en banc has not finally resolved the question of the

constitutional ity of applying the Hobbs Act to criminal conduct

which has traditional ly 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 ag ainst McFarland in this

appeal.

ENDRECORDDeMOSS, 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 th e 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 unheal thy 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 Interstat e 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 M orrison

clearly shows that such c haracterizations are incorrect. In

Morris on , 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 regulate7

“activiti es 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 fo undation 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 R obinson 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 C ourt in L opez 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 M orrison the Supreme Court went on to state:

Indeed, if Congress may regulate gender motivated

violence, it would be able t o regulate murder or

any other t ype of violence since gender motivated4 This distinction between “goods” and “money” is recognized by

the Uniform Commercia l 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

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 robberi es 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 sale9

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, theref ore, 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 Higginboth am 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 intersta te commerce.” While

Judge Higginbotham’s dissent was written one year prior to the

Supreme Court decision in Morrison

, you will be surprised on rereading to see how comfortably his analysis, reasoning and language

fit on the aegis of the language of the Supreme Court in Morrison

.