IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 92-8404

Summary Calendar

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KEITHAN JEROME OWENS

Defendant-Appellant.

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Appeal from the United States District Court

for the Western District of Texas

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( March 9, 1993 )

Before KING, DAVIS and WIENER, Circuit Judges.

PER CURIAM:

I.

Defendant-Appellant Keithan Jerome Owens was indicted by a

federal grand jury sitting in Austin, Texas for: (1) conspiracy

to possess with intent to distribute cocaine in violation of 21

U.S.C. § 846; (2) possession with intent to distribute cocaine in

violation of 21 U.S.C. § 841(a)(1); and (3) using or carrying a

firearm in the commission of a drug trafficking offense in

violation of 18 U.S.C. § 924(c). Owens pled guilty to all counts

of the indictment, and the district court sentenced him to a

total of 216 months imprisonment followed by four years of
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supervised release, a $5000 fine, and a $150 special assessment. 

Owens filed a timely notice of appeal.

II.

On appeal, Owens raises several challenges to his

conviction. He first argues that his prosecution and convictions

under federal drug statutes run afoul of the Tenth Amendment to

the United States Constitution. Owens also argues that the

decision to prosecute him in federal court deprived him of his

more expansive rights under the Texas Constitution to be free of

unreasonable searches and seizures. Owens further suggests that

he was prosecuted in federal court solely to enhance punishment. 

Finally, Owens contends that the federal prosecutor's decision to

bring charges against him violates the principles embodied in

Batson v. Kentucky, 476 U.S. 79 (1986).

A.

Before addressing the merits of Owens' challenges to his

conviction, we must consider the effect of his guilty plea on

those challenges. In Tollett v. Henderson, 411 U.S. 258, 267

(1973), the Supreme Court stated:

[A] guilty plea represents a break in the chain of

events which has preceded it in the criminal process. 

When a criminal defendant has solemnly admitted in open

court that he is in fact guilty of the offense with

which he is charged, he may not thereafter raise

independent claims relating to the deprivation of

constitutional rights that occurred prior to the entry

of the guilty plea. He may only attack the voluntary

an intelligent character of the guilty plea by showing

that the advice he received from counsel was not within
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the standards set forth in McMann [v. Richardson, 397

U.S. 759, 770 (1970)].

By pleading guilty to an offense, therefore, a criminal defendant

waives all non-jurisdictional defects preceding the plea. United

States v. Jennings, 891 F.2d 93, 95 (5th Cir. 1989); see also

Barrientos v. United States, 668 F.2d 838, 842 (5th Cir. 1982)

(absent a jurisdictional defect, a defendant usually has no right

to appeal his conviction from a plea of guilty).

Adhering to these principles, we hold that Owens, by

pleading guilty to offenses under 21 U.S.C. § 841(a)(1), 21

U.S.C. § 846, and 18 U.S.C. § 924(c), waived all nonjurisdictional defects preceding the plea. That is, Owens waived

the argument that the search and seizure conducted by Texas state

officials violated a more expansive provision of the Texas

Constitution, TEX. CONST. art. I § 9. Owens also waived the claim

that he was being prosecuted in federal court solely to enhance

his punishment. Finally, Owens waived the argument that the

federal prosecutor chose to prosecute him in federal court

because of his race. See Tollett, 411 U.S. at 266 (concluding

that petitioner's guilty plea foreclosed independent inquiry into

claim that blacks were systematically excluded from grand jury). 

None of these arguments challenges the jurisdiction of the

district court, and all of the alleged defects occurred before

Owens' guilty plea.

B.
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Because Owens' Tenth Amendment argument appears to be in the

nature of a jurisdictional challenge to his conviction, however,

we address its merits. Owens' contends that, under the Tenth

Amendment, Congress may only punish crimes that have a "federal

basis"--i.e., crimes that involve federal lands, post offices,

use of the mails, or interstate commerce. And, pointing to the

fact that his drug crimes occurred solely in the Austin area,

Owens argues that there is no federal basis underlying his

prosecution and conviction. According to Owens: "Without a

constitutionally acceptable [federal] basis, the naked

application of these [f]ederal drug statutes to [him] violates

the strictures of the Tenth Amendment to the United States

Constitution."

The Tenth Amendment of the United States Constitution

provides: "The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are reserved to

the States respectively." U.S. CONST. amend. X. In interpreting

this amendment, this court has long held that "[t]he Tenth

Amendment does not operate upon the valid exercise of powers

delegated to Congress by the Commerce Clause." United States v.

Lopez, 459 F.2d 949, 951 (5th Cir.), cert. denied, 409 U.S. 878

(1972). We have stated: "If the passage of [a federal criminal

statute is] a valid exercise of [Congress' commerce] power, no

violation of the Tenth Amendment can occur." Id.; see also In re

Grand Jury Proceedings, 801 F.2d 1164, 1169-70 (9th Cir. 1986)

(concluding that government investigation into illegal
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dispensation of anabolic steroids, because it was valid exercise

of commerce power, did not violate Tenth Amendment).

The statutes under which Owens' was prosecuted and convicted

are all valid exercises of Congress' commerce power. In Lopez,

we expressly held that Congress acted well within its commerce

power when it passed 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846--

despite the fact that neither provision required any specific

nexus between the drug activity being punished and interstate

commerce. We concluded that there was a rational basis for

Congress' finding that "control of the intrastate incidents of

traffic in controlled substances was essential to the control of

interstate incidents of that traffic." Lopez, 459 F.2d at 953;

see also United States v. Weinrich, 586 F.2d 481, 489 (5th Cir.

1978) (reaffirming that 21 U.S.C. § 841(a)(1) is constitutional

even though no specific proof of a nexus with interstate commerce

is required for conviction), cert. denied, 440 U.S. 982 (1979). 

Courts have similarly upheld the constitutionality of 18 U.S.C. §

924(c). Most recently, in United States v. Dumas, 934 F.2d 1387

(6th Cir. 1990), cert. denied, 112 S. Ct. 641 (1991), the Sixth

Circuit rejected an argument that section 924(c) violates the

Tenth Amendment by not requiring a nexus between the possession

of firearms and interstate commerce. Id. at 1390. It stated: 

Section 924(c) applies only to the use or carrying of a

firearm during or in relation to a federal crime. It

is a valid measure designed to deter the violence

associated with drug trafficking, an activity validly

regulated by Congress under the Commerce Clause.
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Id. (emphasis added); see also United States v. McMillan, 535

F.2d 1035, 1037 n.1 (8th Cir. 1976) (finding unpersuasive the

argument that 18 U.S.C. § 924(c) is not within the scope of

Congress' power to regulate interstate commerce and therefore

reserved to the states by the Tenth Amendment), cert. denied, 434

U.S. 1074 (1978).

Accordingly, we hold that Owens' prosecution and convictions

under 21 U.S.C. § 841(a)(1), 21 U.S.C. § 846, and 18 U.S.C. §

924(c) do not run afoul of the Tenth Amendment. Each of the

provisions is a valid exercise of Congress' commerce power, even

though no specific nexus with interstate commerce is required for

conviction. Because these provisions are valid exercises of

Congress' commerce power, they cannot, under Lopez, violate the

Tenth Amendment. Contrary to Owens' suggestion, then, there was

a "federal basis" for his prosecution: Congress has validly

determined that, in order to control interstate drug activity, it

must be able to punish intrastate drug activity.

III.

For the foregoing reasons, the district court's judgment is

AFFIRMED.