United States v. Nathan Wall (95-5007) and Donald Wall (95-5008)

92 F.3d 1444

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 22, 1996
• Docket: 95-5007, 95-5008
• Status: Published

Opinions

SILER, J., delivered the opinion of the court, in which COFFMAN, D.J., joined. BOGGS, J. (pp. 1454-85), delivered a separate opinion concurring in part and dissenting in part.

SILER, Circuit Judge.

Defendants Nathan and Donald Wall appeal the district court’s denial of their motion to dismiss the information charging them with operating an illegal gambling business. They entered conditional pleas of guilty to a violation of 18 U.S.C. § 1955.¹ Defendants aver constitutional and statutory construction issues in this appeal. First, they attack the constitutionality of § 1955. Next, they contend that two essential requirements for conviction under § 1955 were not met: five persons did not “conduct” a gambling operation, and no state offense was violated. Finally, defendant Donald Wall alleges that the district court misapplied the United States Sentencing Guidelines in enhancing his sentence. For reasons stated hereafter, we affirm the district court.

Defendants owned and operated Amusement, Inc., a business that leased video poker machines to various establishments in Nashville, Tennessee. In addition to defendants, Amusement, Inc. had seven employees: a president, a junior technician, two route men, an office secretary, a part-time bookkeeper, and a manual laborer. The video poker machines were of a type that displayed the number of accumulated “credits” that players won. These credits could be used for replays or, at the player’s request, the lessee of the machine would disburse money for the credits. Amusement, Inc. would reimburse the lessee for any money distributed in this manner.

I. The Constitutionality of 18 U.S.C. § 1955

Section 1955 of Title 18 of the United States Code criminalizes illegal gambling operations of a certain size. Defendants contend that § 1955 is void as a prohibited exercise of congressional power.

This century has seen the aggrandizement of power by the legislative branch of our government heretofore unknown. Nonetheless, the power of Congress is by no means absolute: it may exercise only those powers enumerated in the Constitution. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819). Expressly delegated to Congress is the ability “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const., art. I, § 8, cl. 3. The interpretation of this seemingly innocuous clause has a storied history in Supreme Court jurisprudence that is well-documented elsewhere.²

Action by Congress pursuant to the Commerce Clause must be examined by the courts to verify that the legislative body acted within its Constitutional authority. This court has examined and upheld the constitutionality of 18 U.S.C. § 1955. United States v. Pack, 16 F.3d 1222, No. 92-3872, 1994 WL 19945, at **1_**2 (6th Cir. Jan. 25, 1994) (per curiam); United States v. Leon, 534 F.2d 667, 673-74 (6th Cir.1976). Other circuits have similarly upheld § 1955 as an appropriate exercise of Congress’s power. See, e.g., United States v. Sacco, 491 F.2d 995, 999-1001 (9th Cir.1974) (en banc). To this court’s knowledge, no other court has found § 1955 to be constitutionally infirm.

Before April 1995, a discussion on the constitutional viability of § 1955 would have terminated at this point. This statute would have been summarily upheld as a valid exercise of congressional power under the Commerce Clause. For the first time in over fifty years, however, the Supreme Court invalidated a federal statute because Congress had exceeded its authority under the Commerce Clause. United States v. Lopez, — U.S. —, —, 115 S.Ct. 1624, 1634, 131 L.Ed.2d 626 (1995). Thus, this court must renew its examination of § 1955.

In Lopez, the Supreme Court invalidated the Gun-Free School Zones Act, 18 U.S.C. § 922(q).³ Canvassing past Commerce Clause decisions, the Court identified three categories of activities that Congress may regulate under its commerce power: (1) “the use of the channels of interstate commerce”; (2) “the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities”; and (3) “those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.” Lopez, — U.S. at —-—, 115 S.Ct. at 1629-30 (citation omitted). The Court concluded that § 922(q), classified in the third category, failed to substantially affect interstate commerce.

In Lopez, the Court distinguished § 922(q) from other regulatory statutes.⁴ First, it emphasized the non-commercial nature of the statute:

Section 922(q) is a criminal statute that by its terms has nothing to do with “commerce” or any sort of economic enterprise, however broadly one might define those terms. Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.

Lopez, — U.S. at —, 115 S.Ct. at 1630-31 (footnote omitted). On its face, § 922(q) did not regulate commercial activity; it did not regulate commercial actors. The statute was therefore non-commercial.

The second distinction hailed by the Court was that § 922(q) “contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce.” Lopez, — U.S. at —, 115 S.Ct. at 1631. The Court emphasized that “[njeither the statute nor its legislative history contain[s] express congressional findings regarding the effects upon interstate commerce of gun possession in a school zone.” Id. at —, 115 S.Ct. at 1631 (quotation omitted).⁵ In sum, “unlike the earlier cases to come before the Court here neither the actors nor their conduct have a commercial character, and neither the purposes nor the design of the statute have an evident commercial nexus.” Lopez, — U.S. at —, 115 S.Ct. at 1640 (Kennedy, J., concurring).

Significantly, the Court rejected two arguments that would justify the lack of congressional findings. First, § 922(q) represented a “sharp break” with prior firearm regulation. The “importation of previous findings ... [would therefore be] especially inappropriate.” Lopez, — U.S. at —, 115 S.Ct. at 1632. Second, and more important, the Court was unwilling to construct a tenuous argument that possession of a firearm in a school zone results in violent crime, which affects interstate commerce through increasing insurance costs and decreasing educational opportunities. Id. at —, 115 S.Ct. at 1632.⁶ Were this argument successful, the Court reasoned, “it is difficult to perceive any limitation on. federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign.” Id. at —, 115 S.Ct. at 1632.

The potential reach of Lopez has been debated.⁷ The Supreme Court itself conceded that Lopez would result in legal uncertainty. Id. at —-—, 115 S.Ct. at 1633-34 (“These [determinations of whether an activity is commercial] are not precise formulations, and in the nature of things they cannot be.”)- Criminal defendants across the country have exploited this uncertainty, citing Lopez in hopes that the statutes underlying their convictions will similarly be invalidated. Most courts have resisted urgings to extend Lopez beyond § 922(q). See, e.g., United States v. Chesney, 86 F.3d 564 (6th Cir.1996) (upholding 18 U.S.C. § 922(g), which prohibits the possession of a firearm by a felon); United States v. Turner, 77 F.3d 887 (6th Cir.1996) (same); United States v. Michael R., 90 F.3d 340 (9th Cir.1996) (upholding 18 U.S.C. § 922(x)(2), which prohibits juvenile possession of a handgun); United States v. Staples, 85 F.3d 461 (9th Cir.1996) (upholding 18 U.S.C. § 924(c)(1), which prohibits the use of a firearm while engaged in drug trafficking); United States v. Folen, 84 F.3d 1103 (8th Cir.1996) (upholding 18 U.S.C. § 842(i), which prohibits felons from possessing explosives); United States v. Lomayaoma, 86 F.3d 142 (9th Cir.1996) (upholding the Indian Major Crimes Act, 18 U.S.C. § 1153); United States v. Wilson, 73 F.3d 675 (7th Cir.1995) (upholding the Freedom of Access to Clinic Entrances Act, 18 U.S.C. § 248(a)(1)); United States v. Sherlin, 67 F.3d 1208 (6th Cir.1995) (upholding federal arson statute, 18 U.S.C. § 844(f)), cert. denied, — U.S. —, 116 S.Ct. 795, 133 L.Ed.2d 744 (1996) and — U.S. —, 116 S.Ct. 1548, 134 L.Ed.2d 650 (1996); United States v. Bolton, 68 F.3d 396 (10th Cir.1995) (upholding the Hobbs Act, 18 U.S.C. § 1951), cert. denied, — U.S. —, 116 S.Ct. 966, 133 L.Ed.2d 887 (1996); United States v. Leshuk, 65 F.3d 1105 (4th Cir.1995) (upholding 21 U.S.C. § 841(a)(1), which prohibits the manufacture of marijuana); United States v. Bishop, 66 F.3d 569 (3d Cir.1995) (upholding carjacking statute, 18 U.S.C. § 2119), cert. denied, — U.S. —, 116 S.Ct. 681, 133 L.Ed.2d 529 (1995) and — U.S. —, 116 S.Ct. 750, 133 L.Ed.2d 698 (1996); United States v. Wilks, 58 F.3d 1518 (10th Cir.1995) (upholding statute that prohibited the possession or transfer of machineguns, 18 U.S.C. § 922(o)); cf. Pic-A-State Pa., Inc. v. Reno, 76 F.3d 1294 (3d Cir.) (upholding Interstate Wagering Amendment, 18 U.S.C. § 1301, which prohibits the transmission in interstate commerce of information to be used for the purpose of procuring a lottery ticket), cert. denied, — U.S. —, 116 S.Ct. 2504, 135 L.Ed.2d 194 (1996); Doe v. Doe, 929 F.Supp. 608 (D.Conn.1996) (upholding the Violence Against Women Act of 1994, 42 U.S.C. § 13981). Few courts have cited Lopez to reverse a conviction. See, e.g., United States v. Pappadopoulos, 64 F.3d 522, 527 (9th Cir.1995) (holding that receipt of natural gas from out-of-state source was insufficient to confer federal jurisdiction for arson conviction); ⁸ United States v. Mussari, 894 F.Supp. 1360, 1363-64 (D.Ariz.1995) (holding that the Child Support Recovery Act, 18 U.S.C. § 228, which punished the failure to pay child support, was an unconstitutional exercise of congressional power);⁹ cf. Hoffman v. Hunt, 923 F.Supp. 791, 807 (W.D.N.C.1996) (declaring that 18 U.S.C. § 248, the Freedom of Access to Clinic Entrances Act, was an invalid expression of Congressional power);¹⁰ United States v. Olin Corp., 927 F.Supp. 1502, 1522-32 (S.D.Ala.1996) (holding that Lopez prohibits the application of CERCLA liability).¹¹

The question thus becomes if and how Lopez will apply to 18 U.S.C. § 1955. This court will apply the Lopez framework to organize this discussion. Like § 922(q), § 1955 must be classified under the third category. Thus, to be sustained, § 1955 must regulate activities that substantially affect interstate commerce. To make this determination, this court will conduct a Lopez analysis: Is § 1955 commercial in nature? Is the statute otherwise connected to interstate commerce?

First, this court must determine whether § 1955 is commercially related — whether the statute regulates part of an economic enterprise. Lopez, — U.S. at —, 115 S.Ct. at 1631. On one hand, § 1955 resembles § 922(q). Both are criminal statutes of general application. Ostensibly, the purpose of both statutes is not to regulate commercial intercourse; rather, Congress’s primary intent was to deter and punish criminal behavior. See, e.g., Mussari, 894 F.Supp. at 1363-64 (interpreting statute that punished nonpayment of child support as criminal in nature rather than commercial).

On the other hand, § 1955 has a stronger link to commerce than does § 922(q). On its face, the statute has a commercial aspect. It does not prohibit gambling per se; rather, it punishes those who “conduet[ ] ... an illegal gambling business.” 18 U.S.C. § 1955(a) (emphasis added). To sustain a conviction, Congress required federal prosecutors to demonstrate that a certain amount of commercial activity took place — the business had to “remain[] in substantially continuous operation for a period in excess of thirty days or ha[ve] a gross revenue of $2,000 in any single day.” Id. § 1955(b)(l)(iii). Gambling itself, in its multiple forms, is a commercial activity. See, e.g., Pic-A-State Pa., 76 F.3d at 1301 (affirming that lottery tickets are “subjects of commerce” and that it was “beyond dispute that state lotteries affect interstate commerce”). By its terms, § 1955 is commercial in nature and is not favorably compared to possession of a gun in a school zone, which clearly does not involve commercial activity.¹²

Next, this court must analyze the purpose and design of § 1955 to determine whether it affects interstate commerce. Like § 922(q), § 1955 “contains no jurisdictional element which would ensure, through case-by-case inquiry,” that the gambling operation in question affects interstate commerce. Lopez, — U.S. at —, 115 S.Ct. at 1631.¹³ The prosecutor need not prove and the jury need not find that the accused or his instrumentalities crossed any state lines or affected interstate commerce. There is nothing in the statute that “might limit its reach to a discrete set of [gambling operations] that additionally have an explicit connection with or effect on interstate commerce.” Lopez, — U.S. at —, 115 S.Ct. at 1631. But cf. Wilson, 73 F.3d at 693-94 (Coffey, J., dissenting) (noting that jurisdictional requirement has diminished importance for the regulation of a business that engages in some form of economic activity).

Unlike § 922(q), however, § 1955 contains reams of legislative historical information to guide the courts. Enacting the Organized Crime Control Act of 1970, “Congress passed [§ 1955] in an attempt to attack sophisticated, large-scale illegal gambling operations which Congress thought to be a major source of income for organized crime.” United States v. King, 834 F.2d 109, 112 (6th Cir.1987), cert. denied, 485 U.S. 1022, 108 S.Ct. 1576, 99 L.Ed.2d 891 (1988); see H.R.Rep. No. 91-1549, 91st Cong., 2d Sess. (1970), reprinted in 1970 U.S.C.C.A.N. 4007, 4028-32; cf. Wilson, 73 F.3d at 684 (noting the importance of Congressional findings connecting the criminal act to interstate commerce). Congress determined that “organized crime posed a major threat to American society and that illegal gambling operations provided organized crime with its greatest source of revenue.” United States v. Sacco, 491 F.2d 995, 999 (9th Cir.1974) (en banc). Congress specifically found that “illegal gambling involves widespread use of, and has an effect upon, interstate commerce and the facilities of interstate commerce.” H.R.Rep. No. 91-1549, 91st Cong., 2d Sess. (1970), reprinted in 1970 U.S.C.C.A.N. 4007, 4028; see S.Rep. No. 91-617, 91st Cong., 1st Sess. 70-76 (1969); Sacco, 491 F.2d at 999-1001 (outlining the debates and findings of Congress connecting illegal gambling to interstate commerce).¹⁴

The Supreme Court cited Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971), as an example of appropriate congressional regulation. Lopez, — U.S. at —, 115 S.Ct. at 1630.¹⁵ Perez upheld 18 U.S.C. § 891, which outlawed extortionate credit practices. Like § 1955, § 891 was a criminal statute that punished commercial activity. Section 891 primarily regulated intrastate activity and did not contain any jurisdictional interstate element. However, attached to it were extensive legislative findings and history that analyzed the burden that extortionate credit practices placed on interstate commerce. Perez, 402 U.S. at 155-57, 91 S.Ct. at 1362-63. Under these circumstances, the Supreme Court confirmed that § 891 “substantially affected interstate commerce” and was therefore properly enacted. Lopez, — U.S. at —, 115 S.Ct. at 1630.¹⁶

Lopez casts a shadow on regulation that is tenuously related to interstate commerce.¹⁷ Lopez, however, does not mandate that § 1955 be invalidated. Until the Supreme Court provides a clearer signal or cogent framework to handle this type of legislation, this court is content to heed the concurrence of two Justices that the history of Commerce Clause jurisprudence still “counsels great restraint.” Lopez, — U.S. at —, 115 S.Ct. at 1634 (Kennedy, J. concurring). Section 1955, in language, purpose, and legislative history, better resembles commercial regulation than does § 922(q). See Lopez, — U.S. at —, 115 S.Ct. at 1633 (“[T]he question of congressional power under the Commerce Clause ‘is necessarily one of degree’ ”) (citation omitted). Section 1955 compares favorably to the statute analyzed in Perez. As a result, we affirm that 18 U.S.C. § 1955 is a proper exercise of congressional power under the United States Constitution.

II. The Applicability of 18 U.S.C. § 1955 A.

To be illegal under § 1955, the gambling operation in question must “involve[] five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business.” 18 U.S.C. § 1955(b)(1)(h). Defendants contend that fewer than five persons “conducted” such illegality; therefore, the requirements of the statute were not met.

Defendants explain that only three persons “conducted” business at Amusement, Inc. They employ dictionary definitions and clever analogy to show that “conduct,” in every day usage, does not denote “participate in” or “carry on.” Courts, however, have broadly interpreted “conduct” in the context of § 1955. The Supreme Court, though not directly interpreting § 1955, nonetheless suggested that “[i]t is participation in the gambling business that is a federal offense,” Sanabria v. United States, 437 U.S. 54, 70, 98 S.Ct. 2170, 2182, 57 L.Ed.2d 43 (1978), and “[n]umerous cases have recognized that 18 U.S.C. § 1955 proscribes any degree of participation in an illegal gambling business, except participation as a mere bettor.” Id. at 71 n. 26, 98 S.Ct. at 2182 n. 26. This court has added that “[t]he pleasure of participation and association in a gambling enterprise which otherwise meets the statutory test is sufficient.” United States v. Rowland, 592 F.2d 327, 329 (6th Cir.1979); see also United States v. Merrell, 701 F.2d 53, 55 (6th Cir.) (serving coffee to bettors and cleaning up after they left was enough to sustain a conviction under § 1955), cert. denied, 463 U.S. 1230, 103 S.Ct. 3558, 77 L.Ed.2d 1415 (1983).

Defendants argue that these cases preceded the Supreme Court’s ruling in Reves v. Ernst & Young, 507 U.S. 170, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993). In Reves, the Court concluded that “to conduct or participate, directly or indirectly, in ... [an] enterprise’s affairs” indicates “some degree of direction.” Id. at 177-78, 113 S.Ct. at 1169.¹⁸ However, the Court specifically distinguished Reves from Sanabria: “ ‘[CJonducts’ has been given a broad reading in [§ 1955’s] context to distinguish it from ‘manages, supervises, [or] directs.’ ” Id. at 178 n. 3, 113 S.Ct. at 1169 n. 3. This broad reading of “conduct,” sanctioned by the Supreme Court, will remain undisturbed.

B.

Although defendants query whether a payout from a video poker machine constitutes gambling,¹⁹ the main thrust of their next argument is that leasing these machines did not violate Tennessee law. An essential element for conviction under § 1955 is that the illegal gambling business be in “violation of the law of the State ... in which it is conducted.” 18 U.S.C. § 1955(b)(1). Alleging that they have not violated the law of Tennessee, defendants assert that they may not be prosecuted for this offense.

The defendants correctly note that the business of leasing video poker machines is a lawful, taxable privilege in Tennessee. Term. Code Ann. § 67-4-507. By paying the proper tax, defendants were vested with the privilege of leasing the machines to location owners. Defendants contend that because their action — leasing the machines — was within the scope of the privilege for which they paid the tax, this activity was exempted from criminal prohibitions, even if the end-users employed the machines for gambling.

This privilege, however, continues only so long as the privileged actor remains within the scope of his lawful licensed business. An actor who strays beyond the lawful privilege is not protected and can be criminally charged. The privilege for leasing a coin-operated amusement device does not extend to “any device operated for the purpose of unlawful gambling.” Tenn.Code Ann. § 67-4-507(l).²⁰ Defendants and the lessees of the machines anticipated that the machines would be used to gamble. By arranging to reimburse lessees for cash payouts to successful players, defendants stepped beyond the lawful privilege. Defendants helped to induce gambling and intended to “derive an economic benefit” from the gambling, violating § 39-17-503(a). Consequently, they were properly charged under 18 U.S.C. § 1955.

III. Sentencing Guideline Provisions

Defendant Donald Wall contends that it was improper for the district court to enhance his offense level by four points based upon his leadership role in the gambling venture.²¹ He alleges that the underlying offense and the base offense level²² already accounted for his leadership role, thereby making the enhancement a double counting.

Courts generally do not permit double counting under USSG § 3B1.1 when the offense of conviction reflects an inherent control or leadership role, see, e.g., United States v. Stevenson, 6 F.3d 1262, 1269-70 (7th Cir.1993), or when the same conduct is penalized under a separate guideline provision. See, e.g, United States v. Chichy, 1 F.3d 1501, 1505-07 (6th Cir.), cert. denied, 510 U.S. 1019, 114 S.Ct. 620, 126 L.Ed.2d 584 (1993). The difficulty in defendant’s position is that § 1955 warrants a conviction of those who may not lead or manage the enterprise. Moreover, the base offense level is not strictly applied to leaders or organizers — one merely had to “engage” in a gambling business to receive this level. USSG § 2E3.1(a)(l). As a result, the four-point enhancement is not a double counting.²³

AFFIEMED.

1 . 18 U.S.C. § 1955 reads in pertinent part:

(a) Whoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined under this title or imprisoned not more than five years, or both.

(b) As used in this section—

(1) "illegal gambling business" means a gambling business which—

(i)is a violation of the law of a State or political subdivision in which it is conducted;

(ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and

(iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day.

(2) "gambling" includes but is not limited to pool-selling, bookmaking, maintaining slot machines, roulette wheels or dice tables, and conducting lotteries, policy, bolita or numbers games, or selling chances therein.

2 . See, e.g., United States v. Lopez, — U.S. —, —, 115 S.Ct. 1624, 1626-29, 131 L.Ed.2d 626 (1995) (outlining Commerce Clause jurisprudence); 1 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law, Substance and Procedure §§ 4.1-4.10-f. (2d ed.1992); Laurence H. Tribe, American Constitutional Law §§ 5-4 to 5-8 (2d ed.1988); John S. Baker, Jr. Nationalizing Criminal Law: Does Organized Crime Make It Necessary or Proper?, 16 Rutgers L.J. 495, 518-531 (1985) (tracing the interaction of Commerce Clause decisions and federal criminal law); Debra L. Farmer, Recent Development, United States v. Lopez: The Fifth Circuit Declares the Gun-Free School Zone Act of 1990 an Unconstitutional Extension of Congressional Power Under the Commerce Clause, 68 Tul. L. Rev. 1674, 1674-82 (1994); David S. Gehrig, Note, The Gun-Free School Zones Act: The Shootout over Legislative Findings, The Commerce Clause, and Federalism, 22 Hastings Const. L.Q. 179, 183-91 (1994).

3 . The act made it a federal offense “for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.” 18 U.S.C. § 922(q)(2)(A). The act did not require that the possession be related to interstate commerce.

4 . The Court confirmed that mining coal, Hodel v. Virginia Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981); extorting a loan, Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971); running a restaurant or hotel, Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964); Heart of Atlanta Motel, Inc., v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964); and growing wheat, Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942)—though each was an intrastate activity—were commercial activities validly regulated by Congress. Lopez, — U.S. at —, 115 S.Ct. at 1630 ("Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.”); see also id. at —, 115 S.Ct. at 1637 (Kennedy, J., concurring) ("These and like authorities are within the fair ambit of the Court’s practical conception of commercial regulation and are not called in question by our decision today.”).

5 . The Court was not requiring Congress to make formal findings as to the burdens on interstate commerce before enacting regulations; ‘‘[b]ut to the extent that congressional findings would enable us to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye, they are lacking here." Lopez, — U.S. at —, 115 S.Ct. at 1632.

6 . This argument was the focal point of Justice Breye4r's dissent. Lopez, — U.S. at —, 115 S.Ct. at 1659-62 (Breyer, J., dissenting).

7 . The dissent echoes post-Lopez calls for stricter judicial scrutiny of Congressional Commerce power. See, e.g., United States v. Bishop, 66 F.3d 569, 603 (3d Cir.1995) (Becker, J., dissenting) (calling Lopez a "watershed” case that “shifted the boundaries" of the Commerce Clause and threw into doubt the constitutionality of noncommercial intrastate crimes), cert. denied, — U.S. —, 116 S.Ct. 681, 133 L.Ed.2d 529 (1995) and U.S. —, 116 S.Ct. 750, 133 L.Ed.2d 698(1996); cf. United States v. Chesney, 86 F.3d 564, 581 n. 11 (6th Cir.1996) (Batchelder, J., concurring) ("Lopez presages a return to the day when the Congress’s interstate commerce authority had meaningful limits.”); United States v. Wilson, 73 F.3d 675, 691 (7th Cir.1995) (Coffey, J., dissenting) (describing Lopez as a "landmark case"). As stated in the dissent, academics have also debated the potential changes in post -Lopez Commerce Clause jurisprudence. See, e.g., Richard A. Epstein, Constitutional Faith and the Commerce Clause, 71 Notre Dame L. Rev. 167, 167 (1996) (“Lopez may turn out to be a flash in the pan, or it may usher in a new age of constitutional restraint.”) (footnote omitted); cf. Lino A. Graglia, United States v. Lopez: Judicial Review Under the Commerce Clause, 74 Tex. L. Rev. 719, 767 (1996) (predicting that "[i]t is most unlikely ... that the Court will be able to muster five votes to invalidate a commerce power measure when Congress does not commit the oversight that explains Lopez ”)■

8 . Pappadopoulos is sufficiently different from Lopez in that the statute in question expressly required an interstate nexus between the crime (arson) and the property. The court dismissed the argument that the mere receipt of out-of-state natural gas was enough to affect interstate commerce. The court did not invalidate the statute; it held that the prosecution did not prove the requisite jurisdictional element. Pappadopoulos, 64 F.3d at 528 ("Where the sole source of the interstate commerce connection is the receipt by a private home of natural gas from a company that receives some of that gas from an out-of-state source, federal jurisdictional requirements have not been met.”); see also United States v. Denalli, 73 F.3d 328, 329 (11th Cir.1996) (following Pappadopoulos and holding that the arson of a residence does not satisfy the jurisdictional prerequisite of the federal arson statute); cf. United States v. Pinckney, 85 F.3d 4, 8 (2d Cir.1996) (overturning conviction pursuant to “chop-shop” statute, 18 U.S.C. § 2322, because the government failed to prove the jurisdictional element of the offense). But see United States v. Gomez, 87 F.3d 1093, 1095-96 (9th Cir.1996) (setting fire to a six-unit apartment building meets jurisdictional element); United States v. DiSanto, 86 F.3d 1238, 1244-46 (1st Cir.1996) (torching of a restaurant fulfilled the jurisdictional element); Sherlin, 67 F.3d at 1213-14 (burning of college dormitory sufficient to trigger interstate commerce element); United States v. Martin, 63 F.3d 1422, 1427-28 (7th Cir.1995) (finding that building that had not been rented for three months still had sufficient relationship to interstate commerce activity to satisfy federal arson statute); United States v. Moore, 25 F.3d 1042, Nos. 93-5273, 93-5274, 93-5281, 1994 WL 251174, at **3 (4th Cir. June 10, 1994) (per curiam) ("[W]e h[o]ld that connection of a house to an interstate power grid constitutes a sufficient use in an activity that affects commerce to satisfy the arson statute.”), cert. denied, — U.S. —, 115 S.Ct. 1838, 131 L.Ed.2d 756 (1995).

9 . See also United States v. Parker, 911 F.Supp. 830, 834 (E.D.Pa.1995) (“[I]t is plain to this court that Congress had no rational basis to conclude that the willful failure to pay a child support obligation substantially affects commerce.... ”); United States v. Bailey, 902 F.Supp. 727, 729 (W.D.Tex.1995) (following Mussari). But see United States v. Nichols, 928 F.Supp. 302, 313 (S.D.N.Y.1996) (finding that the statute regulates the use of the channels of interstate commerce); United States v. Kegel, 916 F.Supp. 1233, 1237 (M.D.Fla.1996) (same); United States v. Collins, 921 F.Supp. 1028, 1036 (W.D.N.Y.1996) (finding a "rational, nontenuous relationship between interstate nonpayment of child support and interstate commerce”); United States v. Hampshire, 892 F.Supp. 1327, 1330 (D.Kan.1995) (same); United States v. Sage, 906 F.Supp. 84, 91 (D.Conn.1995) (same) aff'd, 92 F.3d 101 (2d Cir.1996); United States v. Hopper, 899 F.Supp. 389, 391-93 (S.D.Ind.1995) (collecting child support orders across state lines is commercial).

10 . But see United States v. Dinwiddie, 76 F.3d 913 (8th Cir.1996); United States v. Wilson, 73 F.3d 675 (7th Cir.1995); Cheffer v. Reno, 55 F.3d 1517 (11th Cir.1995). The Freedom of Access to Clinic Entrances Act, like § 922(q) and § 1955, had no jurisdictional element. However, 18 U.S.C. § 248 is unlike § 1955 in that the statute targeted protest activity — non-commercial activity — rather than the abortion clinic itself, which is a commercial enterprise. See Hoffman, 923 F.Supp. at 809 (“[The Act] is not aimed at the commercial activity of abortion clinics. It is aimed at the basic freedom of individuals to engage in civil protest.”). Section 1955, on the other hand, targets the commercial enterprise directly.

11 . The district court in Olin broadly employed Lopez to strike the CERCLA statute as it applied to the defendants because “nothing in the [CERCLA] statute provide[d]” for a '‘case-by-case inquiry" to ensure an interstate commerce nexus. 927 F.Supp. at 1533. The Alabama court interpreted Lopez to require specific Congressional findings that a particular statute substantially affects interstate commerce — perhaps even requiring a jurisdictional clause in the statute itself — to withstand judicial scrutiny. This court does not find such an interpretation of Lopez persuasive.

12 . The commercial aspect of a statute is one way in which courts have distinguished Lopez. See, e.g., Staples, 85 F.3d at 463 ("Unlike education, drug trafficking is a commercial activity which substantially affects interstate commerce.”); Bishop, 66 F.3d at 581 ("[C]aijacking is economic in a way that possession of a handgun in a school zone is not.”); Wilson, 73 F.3d at 683 ("We agree ... that the [Freedom of Access to Clinic 'Entrances Act], unlike the Gun-Free School Zones Act, regulates a commercial activity — the provision of reproductive health services.”); cf. Gomez, 87 F.3d at 1096 (upholding arson conviction because a "rental properly is a commercial establishment, and is not substantially different than any other business"); United States v. Kirk, 70 F.3d 791, 802 (5th Cir.1995) (Jones, J., dissenting) (arguing that 18 U.S.C. § 922(o), which prohibits the possession of ma-chineguns, should be invalidated because it "is a purely criminal law, without any nexus to commercial activity”), reh'g en banc granted, 78 F.3d 160 (5th Cir.1996); Hoffman, 923 F.Supp. at 813 ("[T|his court believes that Congress cannot regulate the protest activities of the Plaintiffs because those activities, like the gun possession at issue in Lopez, are simply not properly characterized as commercial or economic activities.”). Even the dissents in Bishop and Wilson might uphold § 1955 because it clearly regulates economic activity. See 66 F.3d at 592 (Becker, J., dissenting) (highlighting that carjacking does not involve a "voluntary economic exchange”); 73 F.3d at 689-93 (Coffey, J., dissenting) (emphasizing that the Freedom of Access to Clinic Entrances Act criminalizes the "purely non-economic activity (i.e., the civil disobedience) of anti-abortion protesters,” which is “one step removed from the commercial enterprise”) (quotations omitted).

13 . Some statutes require that the government prove that the activities at hand substantially relate to interstate commerce. See, e.g., 18 U.S.C. § 2119 (carjacking conviction requires proof that vehicle involved was "transported, shipped, or received in interstate or foreign commerce”). Courts have required a low threshold of proof of interstate relation for these statutes. See, e.g., United States v. Johnson, 22 F.3d 106, 107-09 (6th Cir.1994) (finding that a car manufactured in Smyrna, Tennessee and shipped to Chattanooga, Tennessee by way of Georgia and subsequently carjacked in Chattanooga meets the requisite jurisdictional standard).

14 . In the case at hand, there was no evidence that defendants were engaged in a gambling enterprise that filled organized crime coffers. This case appears to be one of those "rare instances where a gambling operation meeting the requirements of 1955 will be a purely local operation, in no way connected with organized crime.” Sacco, 491 F.2d at 1000. Congress, however, may regulate commercial activities that, although intrastate in nature, comprise a class of activities that substantially affect interstate commerce. Courts may not excise individual instances of a class of commercial activities that is within the reach of federal power. Perez v. United States, 402 U.S. 146, 154, 91 S.Ct. 1357, 1361, 28 L.Ed.2d 686 (1971); see also Lopez, — U.S. at —, 115 S.Ct. at 1630; Maryland v. Wirtz, 392 U.S. 183, 192-93, 88 S.Ct. 2017, 2021-22, 20 L.Ed.2d 1020 (1968); Wickard v. Filburn, 317 U.S. 111, 127-28, 63 S.Ct. 82, 90-91, 87 L.Ed. 122 (1942); United States v. Pack, 16 F.3d 1222, No. 92-3872, 1994 WL 19945, at *2 (6th Cir. Jan. 25, 1994) (per curiam) ("If the class of activities is within the reach of the federal power and the regulation imposed is reasonable, a court’s investigation is concluded. There is no need for inquiry on a case-by-case basis or proof that a particular activity had a [substantial] effect on commerce.") (quoting Sacco, 491 F.2d at 999); cf. Gomez, 87 F.3d at 1095-96 (noting that once the commercial nature of the activity is established, the courts must consider the aggregate effect of the activity on the commercial market). Thus, if the structure of § 1955 is constitutional, this particular conviction will be upheld.

15 . This court also cited Perez for support in previously upholding the constitutionality of § 1955. See United States v. Leon, 534 F.2d 667, 673-74 (6th Cir.1976).

16 . This case does not mirror Perez exactly. Section 1955 incorporates state gambling law violations as an element of the federal offense. While § 891 generically criminalized loan-sharking, variegated gambling activities can be sanctified by individual states. This "opt-out” measure casts doubt upon congressional findings that such activities negatively burden interstate commerce. Nonetheless, this court will defer to Congressional findings that gambling ventures of this nature affect interstate commerce. See infra note 14 and accompanying text; see also Leon, 534 F.2d at 673 (rejecting argument that state law prerequisite makes the statute vague and unconstitutional); United States v. Palmer, 465 F.2d 697, 699 (6th Cir.) (per curiam) ("|T|he contention that [§ 1955] hinges on state law and is therefore an unconstitutional delegation of congressional authority [will not] stand scrutiny."), cert. denied, 409 U.S. 874, 93 S.Ct. 119, 34 L.Ed.2d 126 (1972). While this court questions the wisdom of “criminalizing conduct already denounced as criminal by the States," Lopez, — U.S. at — n. 3, 115 S.Ct. at 1631 n. 3, it should be noted that Congress did not attempt to displace policy choices in those states that have legalized different forms of gambling. Because § 1955 criminalizes only those enterprises that first violate state law, Congress displayed some sensitivity and respect for federal-state comity and avoided unwarranted intrusion in an area traditionally reserved to the states. See id.; accord United States v. Culbert, 435 U.S. 371, 379, 98 S.Ct. 1112, 1116-17, 55 L.Ed.2d 349 (1978) (finding that Congressional prohibition of conduct already criminalized under state law does not necessarily disturb federal-state comity).

17 .Courts have cited Lopez to require a more “direct” effect on interstate commerce. See Pinckney, 85 F.3d at 7 (rejecting argument that "goods sold or distributed in Brooklyn auto body shops will inevitably enter interstate commerce" pursuant to “chop-shop" charge); Denalli, 73 F.3d at 330 (maintaining that the destruction of a residence, which housed a computer that was occasionally used for work-related purposes, does not affect interstate commerce); Pappadopoulos, 64 F.3d at 528 ("The arson of [this house] has only a remote and indirect effect on interstate commerce.”); United States v. Grey, 56 F.3d 1219, 1225 (10th Cir.1995) (finding that the exchange of $200 in Federal Reserve notes failed to have "even a minimal effect on interstate commerce"); United States v. Klingler, 61 F.3d 1234, 1239-40 (6th Cir.1995) (requiring more than tenuous connection to trigger federal jurisdiction); cf. Olin Corp., 927 F.Supp. at 1522 (employing Lopez to question the constitutionality of CERC-LA); see also Hoffman, 923 F.Supp. at 813 (finding that non-violent physical obstruction of reproductive health service clinics does not affect interstate commerce). But see United States v. Baker, 82 F.3d 273, 275-76 (8th Cir.1996) (upholding conviction under the Travel Act while citing Lopez; defendant’s accessing of a local automatic teller machine [ATM], which was part of an interstate network of ATMs, to promote extortion was a use of a "facility in interstate or foreign commerce”); United States v. Griffith, 85 F.3d 284, 288 (7th Cir.1996) (conceding that "[o]ne can imagine a scenario where a local prostitution offense might lack a federal dimension” but still upholding conviction for money laundering statute, 18 U.S.C. § 1956, in part because funds from a localized but illicit prostitution enterprise were mailed from Illinois to Colorado).

18 . The Supreme Court was interpreting a RICO statute. Especially relevant is that petitioners in Reves urged the Court to interpret "conduct” as "carry on.” 507 U.S. at 178, 113 S.Ct. at 1169— 70.

19 . This contention appears to have little merit. Under Tennessee law, "[a] person commits an offense who knowingly induces or aids another to engage in gambling, and ... [i]ntends to derive or derives an economic benefit other than personal winnings from the gambling.” Tenn. Code Ann. § 39-17-503(a). "Gambling” is defined as “risking anything of value for a profit whose return is to any degree contingent on chance.” Id. § 39-17-501(1). These liberalized definitions include payouts from playing video poker machines. See T & W Enter. v. Casey, 715 S.W.2d 356, 358-59 (Tenn.Ct.App.1986); Ferguson v. State, 628 S.W.2d 37, 38-39 (Tenn.Crim.App.1981).

20 . Tenn.Code Ann. § 67-4 — 507(f) confirms that "[njothing in this section, including payment of the tax provided for herein, shall be construed to make legal an otherwise illegal device, or to authorize or permit gambling on any device whatsoever.”

21 . USSG § 3Bl.l(a) provides that ”[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.”

22 . USSG § 2E3.1(a), the base offense level for gambling offenses, provides for levels of:

(1) 12 if the offense was (A) engaging in a gambling business;

(B) transmission of wagering information; or

(C) committed as part of, or to facilitate, a commercial gambling operation;

or

(2) 6, otherwise.

23 .The circumstances surrounding this case make it inapposite to the cases cited by defendant. In United States v. Romano, 970 F.2d 164, 166-67 (6th Cir.1992), and Chichy, 1 F.3d at 1505-07, this court held that the district court engaged in prohibited double counting by enhancements under § 3B1.1 and § 2F1.1(b)(2). However, § 2F1.1(b)(2), the base offense level for deceit and fraud, is unlike the gambling base offense level because it permits an increase of two levels for "more than minimal planning.” Moreover, recent amendments to the Guidelines have abrogated these particular provisions in Romano and Chichy. See USSG § 1B1.1, comment. (n.4); United States v. Cobleigh, 75 F.3d 242, 251 (6th Cir.1996).

In Stevenson, 6 F.3d at 1269-70, the Seventh Circuit prohibited double counting under § 3B1.1 because the crime of conviction (hiring a minor to participate in a crime) already encompassed the concept of "leadership.” However, § 1955 does not exclusively target leaders. Wall's base offense level was the result of engaging in a gambling operation; his sentence was enhanced because he managed that operation. See, e.g., United States v. Trupiano, 11 F.3d 769, 775 (8th Cir.1993).