United States v. Marcus Edwards

MEMORANDUM

Marcus Lewis Edwards appeals his conviction and sentence under 21 U.S.C. § 841 (a) for selling 54.5 grams of crack cocaine. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm in part and dismiss in part.

Assuming that Edwards properly raised his Commerce Clause challenge before the district court, we now reject it. The Commerce Clause empowers Congress to regulate, among other things, “the intrastate, noncommercial cultivation, possession and use of marijuana.” Gonzales v. Raich, 545 U.S. 1, 32 , 125 S.Ct. 2195 , 162 L.Ed.2d 1 (2005) (internal quotation marks omitted). Indeed, based on Congress’s “specific findings concerning the effect that drug trade has on interstate commerce” and “the ample judicial recognition that an interstate market for illegal drugs exists,” we have held that § 841(a) is a permissible exercise of Congress’s Commerce Clause authority. See United States v. Kim, 94 F.3d 1247, 1250 (9th Cir.1996).

Furthermore, the Supreme Court’s decision in National Federation of Independent Business v. Sebelius (NFIB), — U.S.-, 132 S.Ct. 2566 , 183 L.Ed.2d 450 (2012), is inapplicable here because § 841(a) does not compel commerce. See United…