IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-8404
Summary Calendar _____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEITHAN JEROME OWENS
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the Western District of Texas (A 91 CR 141 2) _________________________________________________________________ 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
* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the court has determined that this opinion should not be published. 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
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:
2 [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 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 non-
jurisdictional 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
3 district court, and all of the alleged defects occurred before
Owens' guilty plea.
B.
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
4 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
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
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-8404
Summary Calendar _____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEITHAN JEROME OWENS
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the Western District of Texas (A 91 CR 141 2) _________________________________________________________________ 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
* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the court has determined that this opinion should not be published. 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
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:
2 [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 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 non-
jurisdictional 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
3 district court, and all of the alleged defects occurred before
Owens' guilty plea.
B.
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
4 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
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:
5 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.
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.