1 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________

No. 92-2598

______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARLOS ECHEVARIA,

Defendant-Appellant.

______________

Appeal from the United States District Court

for the Southern District of Texas

______________

ON PETITION FOR REHEARING

( Opinion June 2, 1993, 5th Cir.,_______F.2d______ )

July 1, 1993

Before GOLDBERG, GARWOOD and WIENER, Circuit Judges.

GOLDBERG, Circuit Judge:

The petition for rehearing is hereby granted and this opinion

is substituted for the earlier opinion issued on June 2, 1993.

Carlos Echevaria pleaded guilty to possession of crack cocaine

with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1).

At the sentencing hearing, the district court found that2

Echevaria's offense occurred within one thousand feet of a

"protected area" and enhanced Echevaria's sentence by two levels

under § 2D1.2 of the United States Sentencing Gui delines

("U.S.S.G."). On appeal, Echevaria challenges the district court's

application of § 2D1.2. We affirm.

FACTS and PROCEEDINGS BELOW

The facts of this case are not in dispute. On the evening of

February 18, 1992, at app roximately 7:55 p.m., undercover police

officer R.F. Benavides dr ove through the parking lot of an

apartment com plex in Houston. Benavides was flagged down by

Echevaria who asked Benav ides what he needed. Benavides told

Echevaria that he wished to purchase $120 worth of crack cocaine.

Echevaria sold the requested amount of crack to Benavides and was

promptly arrested by other police officers on the scene. The

parking lot at which the transaction between Echevaria and

Benavides took place was 634 feet away from the "Robindell School,"

a private kindergarten.

During Echevaria's sentencing hearing, the government urged

the district court to enhance Echevaria's sentence under § 2D1.2 of

the U.S.S .G. because the drug offense occurred within a thousand

feet of a "protected location." Echevaria objected to the

enhancement, arguing that the Robindell School is not a protected

location. The district court agreed with the government that the

Robindell School was a protected location and increased Echevaria's

sentence by two offense levels. Echevaria was sentenced to 361 The statute was originally codified at 21 U.S.C. 845a.

3 months imprisonment to be followed by six years of supervised

release.

ANALYSIS

Section 2D1.2 of the U.S.S.G. provides for an enhanced

sentence for offenses occurring near protected locations.

Protected locations are defined in 21 U.S.C. 860 1 as al l areas

within one thousand feet of the real property comprising

a public or private elementary, vocational, or secondary

school, or a public or private college, junior college,

or university, or playground, or within 100 feet of a

public or private youth center, public swimming pool, or video arcade facility.

It is undisputed that Echevaria sold crack cocaine within one

thousand feet of the Robindell School. The question we must

resolve is whether the Robindell School, a kindergart en, is a

"protected location" within the meaning of § 860.

The government claims that kindergartens are protected

locations under § 860 because they fall within the definition of

"elementary schools." Unfortunately, § 860 does not define or

elaborate on the meaning of "elementary schools." The question of

whether a kindergarten is an elementary school for the purposes of

§ 860 has never been sq uarely addressed by a federal court. Two

federal courts have indicated in dicta that kindergartens are not

elementary schools. The Ninth Circuit in U nited States v. Pitts

intimated that elementary schools "may not include day care centers

or preschools." 908 F.2d 458, 460 n.4 (9th Cir. 1990). Similarly,2 A Florida state court of appeals, interpreting a state

law analogous to § 860, ruled that a kindergarten is not an

elementary school. State of Florida v. Roland , 577 So.2d 680

(Fla. App. 1991).

4 the District of Connect icut, i n United States v. Parsell

, 815

F.Supp 84 (D. Conn. 1993), stated in dicta that under the "rule of

lenity" a religious nursery school might well fall outside the

scope of § 860. 2

To determine whether the Robindell School is an elementary

school under § 860, we must examine the purpose behind § 860.

Congress enacted § 860 in recognition of the dangers that drugs,

and the crimes associated with drug dealing, pose to children. As

we explained in U.S. v. Wake :

there is an obvious and great danger in the mere presence

of drug dealers around schools. Among other things, the

existence of large quantities of prohibited substances in

a school zone, not to mention the concomitant crimes and

risk of har m associated with drug dealers, increases

greatly the likelihood that schoolchildren will come in

contact with them or otherwise be placed directly in

harm's way. 948 F.2 d 1422, 1433 (5th Cir. 1991) c ert.

den. 112 S.Ct. 2944 (1992).

The aim of the statute is to "create a 'drug-free zone' around our

schools and to send a clear signal to drug dealers that we will not

tolerate their presence near our schools." U nited States v. Crew

,

916 F.2d 980, 9 82 (5th Cir. 1990)(quoting 130 Cong.Rec. S559,

statement of Senator Hawkins). The statute attempts to create the

des ired drug free zones by penalizing more harshly drug

transactions that occur near places, such as schools, where

children gather.

S ection 860 places "the burden on drug dealers to ascertain3 We note that even if the Robindell School was not an

elementary school, the school might still be a protected location

under § 860 as a "playground."

5 their proximity to schools." U.S. v. Wake , 948 F.2d at 1433. If

a defendant distributes, possesses with the intent to distribute,

or manufactures a controlled substance within a thousand feet of a

school his sentenc e may be enhanced regardless of whether the

defendant intended to com mit a drug offense within one thousand

feet of a school.

E xamining the nature of the Robindell School in light of

Congress' intent in enacting § 860, we find that the Robindell

School is an elementary school and a protected location within §

860. Any reasonable person who attempted to ascertain the

proximity of schools to the parki ng lot where the drug sale took

place would have easily n oticed the presence of the Robindell

School 634 feet away. The Robindell School is a private

educational institution that is indistinguishable from an ordinary

elementary school in size, operation, and outward physical

appearance. The school teaches three hundred and fifty students.

I t has numerous enclosed classrooms, two playgrounds, 3 a lunch

room, and a teacher's lounge.

While the Robindell School predominantly teaches kindergarten

age children, the school also provide s after-school tutoring for

children up to twelve years o f age. Students at the Robindell

School sit in classrooms behind desks while receiving instruction4 One can easily imagine these children singing "school

days, school days, golden golden rule days. Reading and writing

and arithmetic, taught to the tune of a hickory stick."

5 We also note that Texas law provides for free public

kindergartens, see Tex. Educ. Code Ann. § 21.132 (Vernon 1987 &

Supp 1993), the state board of education selects textbooks for

use in kindergarten, see Tex. Educ. Code Ann. § 12.14(a), and in

the Texas public school system, kindergartens are considered part

of the elementary schools, see Tex. Educ. Code Ann. § 21.797

(Vernon Supp 1993).

6 in math, spelling, reading, phonics, social stud ies, and health. 4

The teachers at the Robindell School are state licensed and

certified, and must undertake annual continuing education. 5

The s chool posts a large sign in the front of its building

reading : "THE ROBINDELL SCHOOL." Due to the school's own

designation, its appearance, and its function, a reasonable

passerby could not distinguish the Robindell School f rom an

ordinary e lementary school. In fact, in all years prior to the

school year of Echevaria's offense, the Robindell School did teach

first and second grade.

Given the nature of the Robindell School, finding that it is

a pro tected location under § 860 furthers Congresses's intent in

enacting § 860. Echevaria cannot reasonably claim to have

concluded tha t the Robindell School is not an elementary school.

The building posts a sign advertizing itself as a school, is large

enough to have three hundred and fifty students, two playgrounds

and numerous classrooms. The Robindell School is readily

observable as the kind of place that Congress wanted to make a drug

free protected area. We note that while we conclude that the

Robindell School is an elementary school under § 860, we need not6 In Walker , the Ninth Circuit explained the intended

meaning of the phrase "directly involving" in the context of §

2D1.2(a)(1): the phrase directly involving a

protected location in subsection

(a)(1) is intended to distinguish

that quantity from the 'total

quantity' of controlled substances

involved in the offense. Thus, the

distinction drawn by the Guideline

is between drugs actually sold or

possessed near the location and

7 dec ide whether all kindergartens are elementary schools under §

860.

Having concluded that the Robindell School is an elementary

school under § 860 and thus a protect ed location, we must review

the district court's two level enhancement of Echevaria's sentence

under U.S.S.G. § 2D1.2(a)(1). Section 2D1.2(a)(1) provides for a

two level sentence increase on the basis of the "quantity of

controlled substances directly involving a protected location.

. ."

Echevaria argues that a two level increase under § 2D1.2(a)(1) is

inappropriate in the instant case because his transaction with

Benavides did not "directly involve" the protected location.

Echevaria points out that the sale of crack involved two adults,

neither of whom had anything to do with t he school. However, as

the Ninth Circuit recently found in United States v. Walker

, No.

92-50223 (9th Cir . May 19, 1993), slip op. 5158, "[i]t does not

matter whether the drugs were sold on school property or to school

children, or whether the drugs were m erely possessed near the

protected location by someone unconnected to the scho ol. It

suffices that the drugs are present within 1,000 feet of the

school." 6 The district court correctly held that Echevaria's drugthose drugs that are part of the

same course of conduct but are sold

or possessed outside the protected

area. Walker Slip Op. at 5157.

8 offense directly involved a protected area for the purposes of §

2D1.2(a)(1).

CONCLUSION

For the foregoing reasons we AFFIRM the dec ision of the

district court.