United States v. John Lanny Lynch

367 F.3d 1148 UNITED STATES of America, Plaintiff-Appellee, v. John Lanny LYNCH, Defendant-Appellant. No. 02-30216. United States Court of Appeals, Ninth Circuit. Argued and Submitted September 11, 2003. Filed May 13, 2004. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Judy Clarke (argued) and Roger J. Peven (on the briefs), Federal Defenders of Eastern Washington and Idaho, Spokane, WA, for the defendant-appellant. John A. Drennan (argued), Department of Justice, Washington, DC, and Bernard F. Hubley, Assistant United States Attorney (on the brief), Helena, MT, for the plaintiff-appellee. Appeal from the United States District Court for the District of Montana; Donald M. Molloy, District Judge, Presiding. D.C. No. CR-99-18-M-DWM. Before: HAWKINS and BERZON, Circuit Judges, and QUACKENBUSH, Senior District Judge. * PER CURIAM: 1 Defendant John Lanny Lynch ("Lynch"), appeals his conviction and twenty-year sentence for violation of the Hobbs Act, 18 U.S.C. § 1951 , and his conviction and five-year consecutive sentence for using or carrying a firearm during the commission of a crime of violence in violation of 18 U.S.C. § 924 (c)(1)(A),…

Defendant John Lanny Lynch (“Lynch”), appeals his conviction and twenty-year sentence for violation of the Hobbs Act, 18 U.S.C. § 1951 , and his conviction and five-year consecutive sentence for using or carrying a firearm during the commission of a crime of violence in violation of 18 U.S.C. § 924 (c)(1)(A), both arising out of the robbery and murder of Brian Carreiro in Montana.

I. BACKGROUND

Lynch, the victim Carreiro, and a third participant, Larry Pizzichiello, were all residents of Las Vegas, Nevada. Carreiro and Pizzichiello were drawing workers’ compensation benefits and, while all three claimed to be unemployed, they were in fact deeply involved in illegal drug trafficking: the procurement, distribution, and sale of methamphetamine. Originally, Piz-zichiello purchased drugs and gave them to Lynch to sell. Thereafter, Carreiro stepped into the role of the purchaser of drugs given to Lynch to sell. Their business arrangement required purchaser and seller to split the profits from the drug sales. A falling out occurred when Lynch failed to pay Carreiro under this arrangement and at the time of the Montana murder, Lynch was substantially indebted to Carreiro.

In 1995,…

concurring in part and concurring in result:

I join the per curiam opinion except for part II.A, concerning the sufficiency of the evidence under the Hobbs Act, 18 U.S.C. § 1951 . I also agree with the conclusion that the Hobbs Act reaches Lynch’s actions, but I believe the law of our circuit requires us to reach that result in a different fashion than the court does.

I

The majority’s analysis should be correct. In particular, United States v. Lopez, 514 U.S. 549 , 115 S.Ct. 1624 , 131 L.Ed.2d 626 (1995), handed down several months after United States v. Collins, 40 F.3d 95 (5th Cir.1994), substantially clarified the approach we are to take in evaluating federal criminal statutes enacted un *1163 der Congress’s commerce power. Lopez drew a sharp line between activities Congress may regulate as per se interference with commerce and those it could regulate only through a showing of substantial interstate effect. 514 U.S. at 558-559 , 115 S.Ct. 1624 . Similarly, United States v. Morrison, 529 U.S. 598, 615-17 , 120 S.Ct. 1740 , 146 L.Ed.2d 658 (2000), struck down a Commerce Clause enactment as pertaining to activities with an insufficiently direct tie to interstate economic…