* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This Court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 2 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ELLIOT C. TOLES, Defendant - Appellant. No. 00-3012 (D.C. No. 99-CR-10086-002) (District of Kansas)

ORDER AND JUDGMENT *

Before BRORBY , McKAYand LUCERO , Circuit Judges. Elliot Toles was found guilty by a jury of, among o ther things, three counts of robbery in violation of the Hobbs Act, 18 U.S.C. § 1951. He was sentenced to 121 months on the Hobbs Act counts and an additiona l thirty years for the other counts, to run consecutively. This appeal raises o ne issue: Does the Hobbs Act exceed Congress’s power to regulate under the Comme rce Clause, U.S. Const. art. I, § 8, cl. 3? Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.-2-

Toles asserts that the constitutionality of the Hob bs Act must be reevaluated in light of the Supreme Court’s recent decisions regarding Congress’s power to regulate interstate commerce under the Commerce Clause. See United States v. Morrison , 120 S. Ct. 1740, 1748–54 (2000) (holding that Con gress exceeded its authority under the Commerce Clause byenacting the federal civil remedy of the Violence Against Women Act); United States v. Lopez , 514 U.S. 549, 567 (1995) (holding that Congress exceeded its authority under the Commerce Clause by making it a federal offense for any individual to knowingly possess a firearm in a school zone). Specifically, he claims that the prior decisions of this Court upholding the Hobbs Act und er the Commerce Clause “cannot survive the combined effect of Lopez and Morrison unless robbery is considered an ‘economic activity’ as defined in Com merce Clause jurisprudence.” (Appellant’s Br. at 17.) We review that challenge de novo. United States v. Wilks , 58 F.3d 1518, 1519 (10th Cir. 1995). In the period between briefing and oral argument, this Court decided United States v. Malone , 222 F.3d 1286 (10th Cir.), cert. denied , 121 S. Ct. 605 (2000). In Malone we considered whether a district court erred in in structing a jury that only a de minimis effect on interstate commerce is necessary to meet the1 The Hobbs Act reads, “Whoever in any way or degre e . . . affects

commerce or the movement of any article or commodity in commerce, by robbery . . . shall be fined . . . or imprisoned . . . , orboth.” 18 U.S.C. § 1951(a). “The term ‘robbery’ means the unlawful taking or obtaini ng of personal property . . . .” Id. at § 1951(b)(1). -3- jurisdictional requirement of the Hobbs Act. 1 Examining our prior jurisprudence in light of the Supreme Court’s recent decisions, including Lopez and Morrison , we expressly concluded that the Hobbs Act regulates economic activity and was enacted pursuant to Congress’s Commerce Clause powers. Id. at 1295 (“Unlike the statutes at issue in Morrison and Lopez , the Hobbs Act regulates economic activity.”). As a result, Toles’s challenge to his Hobbs Act convictions must fail. We hold that enactment of 18 U.S.C. § 1951 was a co nstitutional exercise of Congress’s authority to regulate interstate comm erce. Accordingly, we AFFIRM Toles’s convictions under that statute. ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge