The opinion of the court was delivered by: RHOADES
This matter comes before the Court on Defendant Oscar Gonzalez' motion to dismiss his indictment. The indictment charges Gonzalez with distributing a total of approximately 45.44 kilograms of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Defendant contends, in view of the Supreme Court's recent decision United States v. Lopez, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (1995), that § 841(a) exceeds the scope of Congress' power to legislate. For the reasons stated below, Defendant's motion is DENIED.
Title 21, United States Code, Section 841(a)(1), provides in relevant part as follows:
(a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally --
(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. . . .
21 U.S.C. § 841(a)(1) (1981). Gonzalez recognizes that the statute requires no express nexus with interstate commerce. Since manufacturing even a small amount for personal use or for distribution "between friends" is unlawful, Gonzalez argues, Congress exceeded its legislative authority by enacting § 841(a)(1). Gonzalez, however, ignores the law of this circuit and Congressional findings of a substantial relationship between the intrastate distribution of controlled substances and interstate commerce.
In United States v. Visman, 919 F.2d 1390 (9th Cir. 1990), the Ninth Circuit expressly affirmed that "Congress may constitutionally regulate intrastate drug activity under 21 U.S.C. § 841(a)(1)." Id. at 1393 (citing United States v. Montes-Zarate, 552 F.2d 1330 (9th Cir. 1977) and United States v. Rodriquez-Camacho, 468 F.2d 1220 (9th Cir. 1972)). Affirming Congress' power under the Commerce Clause to regulate possession and distribution of narcotics, the Ninth Circuit relied upon the clear Congressional findings and declarations that the activity proscribed by § 841 has a substantial impact on interstate commerce.
Visman, 919 F.2d at 1392.
As the Ninth Circuit further stated "this court will certainly not substitute its judgment for that of Congress in such a matter unless the relation of the subject to interstate commerce and its effect upon it are clearly nonexistent." Id. at 1393 (quoting Rodriquez-Camacho, 468 F.2d at 1221), see also Minor v. United States, 396 U.S. 87, 98 n.13, 24 L. Ed. 2d 283, 90 S. Ct. 284 (1969) ("A flat ban on certain [narcotic drug] sales . . . is sustainable under" the Commerce Clause.). This Court agrees with the Congressional findings and is bound to follow Ninth Circuit authority holding that 21.U.S.C. § 841(a)(1) is constitutional in light of the fact that distribution of controlled substances has a substantial affect on interstate commerce.
Gonzalez' argument that § 841(a)(1) is unconstitutional implicitly asserts that this Court is no longer bound by Ninth Circuit precedent -- Visman, Montes-Zarate, and Rodriquez-Camacho -- in view of the Supreme Court's recent decision in Lopez. For a Supreme Court decision to overrule a Ninth Circuit precedent, however, it must both undermine the Ninth Circuit decision, and be "closely on point." Branch v. Tunnell, 14 F.3d 449, 456 (9th Cir. 1994). Lopez neither undermines nor is closely on point with relevant Ninth Circuit authority.
In Lopez, the Supreme Court held that Congress exceeded its legislative authority under the Commerce Clause when it made it a federal crime for a person to possess a firearm within 1000 feet of a school. See 18 U.S.C. § 924(q). Following a historic review of Commerce Clause decisions, the Court recognized three categories in which Congress may legislate under its Commerce Clause authority:
First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally Congress' commerce authority includes the power to regulate those activities having a substantial ...