UNITED STATES of America, Plaintiff-Appellee, v. Cedrick Bernard ALDERMAN, Defendant-Appellant, 565 F.3d 641

Opinion by Judge MCKEOWN; Dissent by Judge PAEZ. McKEOWN, Circuit Judge: This case of first impression in the Ninth Circuit requires us to consider whether Congress has the authority under the Commerce Clause of the United States Constitution, art. I, § 8, cl. 3, to criminalize the possession by a felon of body armor that has been “sold or offered for sale in interstate commerce.” 18 U.S.C. §§ 931 and 921(a)(35).

Put another way, the issue is whether the sale of body armor in interstate commerce creates a sufficient nexus between possession of the body armor and commerce to allow for federal regulation under Congress’s Commerce Clause authority. In recent years, the Supreme Court has significantly altered the landscape of congressional power under the Commerce Clause. See, e.g., United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) (striking down statute that provided a federal civil remedy for victims of gender-motivated violence); United States v.

Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (striking down federal statute regulating possession of guns in school zones). Nonetheless, the resolution to this case is found in Supreme Court and Ninth Circuit precedent that addresses a jurisdictional element nearly identical to the one that applies to § 931. See Scarborough v.

United States, 431 U.S. 563, 575, 577, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977) (concluding that, in the context of Title VII of the Omnibus Crime Control Act, proof that a firearm traveled in interstate commerce satisfies the required nexus between possession of the firearm and commerce); United States v. Cortes, 299 F.3d 1030, 1037 n. 2 (9th Cir.2002) (upholding carjacking statute and stating that “the vitality of Scarborough engenders significant debate,” but “[u]ntil the Supreme Court tells us otherwise ... we follow Scarborough unwaveringly.”).

We conclude that we are bound by this precedent — absent the Supreme Court or our en banc court telling us otherwise — and that the felon-in-possession of body armor statute passes muster. Background Cedrick Alderman was arrested in 2005 during a sting operation involving an attempted controlled purchase of cocaine. Officers were aware that Alderman had been previously convicted of felony robbery. [see SER 7-9]. The arresting officer discovered that Alderman was wearing a bulletproof vest. [SER 36].

Alderman was booked for possession of the vest and for violating the conditions of his supervision. [See Dkt. 33], Because Washington state law does not criminalize felon possession of body armor, the matter was referred to the federal authorities. Alderman was indicted under 18 U.S.C. § 931(a), which makes it unlawful for a person convicted of a felony involving a “crime of violence” to possess body armor. See James Guelff and Chris McCurley Body Armor Act of 2002, § 11009(e)(2)(A), 18 U.S.C. § 931 (criminalizing the possession of body armor by felons as of Nov. 2, 2002).

Alderman filed a motion to suppress certain evidence. He also sought dismissal of the indictment on various grounds, including that the statute was unconstitutional because its enactment exceeded Congress’s authority under the Commerce Clause. [See ER 60-62], The district court denied all of Alderman’s motions. Alderman entered a conditional guilty plea. [ER 17-23]. Under the plea agreement, Alderman preserved for appeal the disputed constitutionality of § 931. [See ER 18]. As part of the factual basis for the plea, the plea agreement included Alderman’s admission that the vest had crossed state lines.

Specifically, the vest was sold by the manufacturer in California to a distributor in Washington state. The distributor then sold the vest to the Washington State Department of Corrections. Nothing in the record reveals how the vest left the Department of Corrections, but it is undisputed that the vest subsequently came into Alderman’s possession. [Dkt. 33]. The stipulation and factual recitation were designed to ensure that the jurisdictional element of the statute was met.

See 18 U.S.C. § 921(a)(35) (limiting the applicability of § 931 to vests that have been “sold or offered for sale, in interstate or foreign commerce”). Analysis I. The Statute “We review a district court’s denial of a motion to dismiss an indictment on constitutional grounds de novo.” United States v. Latu, 479 F.3d 1153, 1155 (9th Cir.2007).

Under 18 U.S.C. § 931, it is a crime for a person who has been convicted of a violent felony to “purchase, own, or possess body armor.” Unlike the statutes at issue in Lopez and Morrison, § 931 is limited by an express jurisdictional condition — the jurisdictional hook limits the reach of § 931 to “body armor” that has been “sold or offered for sale, in interstate or foreign commerce.... ” 18 U.S.C. § 921(a)(35). Congress enacted § 931 in response to a spate of violent clashes involving heavily armored assailants and comparatively unprotected police officers.

The Congressional findings cite as examples: the murder of San Francisco Police Officer James Guelff by an assailant wearing 2 layers of body armor, a 1997 bank shoot out in north Hollywood, California, between police and 2 heavily armed suspects outfitted in body armor, and the 1997 murder of Captain Chris McCurley of the Etowah County, Alabama Drug Task Force by a drug dealer shielded by protective body armor. H.R. Rep. 107-193, pt. 1, at 2.

Confronted with the reality that “nationally, police officers and ordinary citizens are facing increased danger as criminals use more deadly weaponry, body armor, and other sophisticated assault gear,” Congress concluded that a “serious threat to community safety [is] posed by criminals who wear body armor during the commission of a violent crime.” Id.

Congress further found that “crime at the local level is exacerbated by the interstate movement of body armor and other assault gear” and “existing Federal controls over [interstate] traffic [in body armor] do not adequately enable the States to control this traffic within their own borders.” Id. In other words, as with guns and domestic strife, Congress determined that felons and body armor “are a potentially deadly combination nationwide.” U.S. v. Hayes, — U.S. -, 129 S.Ct. 1079, 1087, 172 L.Ed.2d 816 (2009).

To address this threat, Congress elected to forbid violent felons from possessing body armor that had been sold through interstate channels. Alderman argues that Congress exceeded its authority under the Commerce Clause when it enacted this legislation. We disagree. The Supreme Court has cautioned us that “[d]ue respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds.” Morrison, 529 U.S. at 607, 120 S.Ct. 1740. No such showing has been made here.

We opt to follow the Supreme Court’s lead in Scarborough. II. United States v. Scarborough and Related Circuit Cases We are guided in our analysis first and foremost by the Supreme Court’s decision in Scarborough. In Scarborough, the Court addressed a jurisdictional element that is nearly identical to the one that limits § 931. Scarborough, 431 U.S. at 564, 97 S.Ct. 1963 (quoting 18 U.S.C. §§ 1201-03).

As we outlined in Cortes, the Supreme Court in Scarborough “considered whether proof that an illegally possessed firearm previously traveled in interstate commerce was sufficient to satisfy the nexus between possession of the firearm and commerce.” 299 F.3d at 1036-37. “The Court answered affirmatively; if the government proved that Scarborough’s firearms had at some time traveled in interstate commerce, a sufficiently close nexus between possession of the firearms and commerce was established.” Id.

As the Supreme Court explained it; “[T]here is no question that Congress intended no more than a minimal nexus requirement.” Scarborough, 431 U.S. at 577, 97 S.Ct. 1963. Thus, although the Court did not address the statute from a constitutional perspective, it implicitly assumed the constitutionality of the “in commerce” requirement. It is difficult to distinguish our case from Scarborough. In considering the continuing vitality of Scarborough, we have consistently upheld similar felon-in-possession statutes. See, e.g., United States v.

Jones, 231 F.3d 508, 514 (9th Cir.2000) (upholding statute criminalizing felon’s possession of a firearm because the jurisdictional hook in the statute “insures on a case-by-case basis that the defendant’s actions implicate interstate commerce to a constitutionally adequate degree.”) (quoting United States v. Polanco, 93 F.3d 555 (9th Cir.1996)); United States v.

Hanna, 55 F.3d 1456, 1462 (9th Cir.1995) (quoting Scarborough, 431 U.S. at 575, 97 S.Ct. 1963, and stating that Scarborough requires “only ‘the minimal nexus that the firearm have been, at some time, in interstate commerce.’ ”); see also Cortes, 299 F.3d at 1037 (upholding federal carjacking statute because, taken together, the context of the statute, congressional findings, and the requirement that the car affected have been transported in interstate commerce “ensure that carjackings covered by 18 U.S.C. § 2119 substantially affect interstate commerce.”). We are not alone in adhering to Scarborough.

In United States v. Patton, the Tenth Circuit recently considered § 931 in light of Scarborough and the Supreme Court’s post-Lopez Commerce Clause jurisprudence. 451 F.3d 615 (10th Cir.2006). After conducting an exhaustive review of Supreme Court and circuit precedent, the Tenth Circuit pointed out that “[ojther circuits have similarly continued to follow Scarborough” and concluded that “[although the body armor statute does not fit within any of the Lopez categories, it is supported by the pre-Lopez precedent of Scarborough v. United States.” Id. at 634.

The court emphasized that in Scarborough, the Supreme Court “assumed that Congress could constitutionally regulate the possession of firearms solely because they had previously moved across state lines.” Id. Thus, “[b]ecause Mr. Patton’s bulletproof vest moved across state lines at some point in its existence, Congress may regulate it under Scarborough ...” Id. Two district courts that have addressed the body armor statute are in accord. See United States v. Marler, 402 F.Supp.2d 852 (N.D.Ohio 2005); United States v. Kitsch, 307 F.Supp.2d 657 (E.D.Pa.2004).

Other circuits have similarly endorsed the continuing vitality of Scarborough, albeit sometimes with skepticism, in decisions dealing with a variety of felon firearm statutes. See, e.g., United States v.

Lemons, 302 F.3d 769, 772-73 (7th Cir.2002) (noting that because “Scarborough suggested that prior movement of the firearm in interstate commerce would suffice to meet [the jurisdictional element], we have, in the wake of Lopez, repeatedly rejected Commerce Clause challenges to application of the felon-in-possession statute”; as to any conflict with Lopez, “it is for the Supreme Court to so hold.”); United States v. Smith, 101 F.3d 202, 215 (1st Cir.1996) (deciding that Scarborough, rather than Lopez, applied because of the jurisdictional hook in the statute); United States v.

Chesney, 86 F.3d 564, 571 (6th Cir.1996) (adhering to Scarborough). Although these decisions dealt with the possession of firearms rather than body armor, we agree with the Tenth Circuit that the “prohibition on possessing body armor cannot be distinguished from the prohibitions on possessing firearms that we have upheld.” Patton, 451 F.3d at 635. We decline to create a circuit split on this issue or to deviate from binding precedent.

The- congressional findings, the nature of the body armor statute, and the express requirement of a sale in interstate commerce, considered in combination, provide a sufficient nexus to and effect on interstate commerce to uphold § 931. III. Recent Commerce Clause Jurisprudence Although we consider Scarborough as the defining case, we cannot ignore the Supreme Court’s shifting emphasis in its Commerce Clause jurisprudence over the past decade. Alderman posits that Scarborough has been overruled by the Court’s recent Commerce Clause cases.

Our review of those authorities does not support this view — Scarborough has not been discarded. See Hanna, 55 F.3d at 1462 (noting that Scarborough continues to be viable after Lopez). In Lopez and its progeny, the Supreme Court delineated “three general categories of regulation in which Congress is. authorized to engage under its commerce power,” Gonzales v. Raich, 545 U.S. 1, 16, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005).

These categories include: “(1) the use of the channels of interstate commerce; (2) the instrumentalities of interstate commerce ...; and (3) activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.” Jones, 231 F.3d at 514 (quoting Lopez, 514 U.S. at 558-59, 115 S.Ct. 1624) (internal quotes and alterations omitted); see also Raich, 545 U.S. at 33-34, 125 S.Ct. 2195 (Scalia, J., concurring) (noting that for over thirty years, “our cases have mechanically recited that the Commerce Clause permits congressional regulation of three categories”).

The “categories. have never been deemed exclusive or mandatory.” United States v. Clark, 435 F.3d 1100, 1116 (9th Cir.2006). “The categories are a guide, not a straitjacket.” Id. Hence, while we generally analyze cases in the framework of these three categories, we are not obligated to “jam[ ] a square peg into a round hole” — especially when that peg has already had a suitable spot of its own carved out by the Court. Id. at 1103. To be sure, the first two categories are not particularly applicable here.

The third category described in Lopez “define[s] the extent of Congress’s power over purely intra state [ ] activities that nonetheless have substantial inter state effects.” United States v. Robertson, 514 U.S. 669, 671, 115 S.Ct. 1732, 131 L.Ed.2d 714 (1995) (emphasis in original). In Morrison, the Supreme Court “established what is now the controlling four-factor test for determining whether a regulated activity ‘substantially affects’ interstate commerce.” United States v. McCoy, 323 F.3d 1114, 1119 (9th Cir.2003).

One of these considerations is “whether the statute contains any ‘express jurisdictional element.’ ” Morrison, 529 U.S. at 611, 120 S.Ct. 1740. “The purpose of a jurisdictional hook is to limit the reach of a particular statute to a discrete set of cases that substantially affect interstate commerce.” McCoy, 323 F.3d at 1124. “Such a jurisdictional element may establish that the enactment is in pursuance of Congress’ regulation of interstate commerce.” Morrison, 529 U.S. at 612, 120 S.Ct. 1740 (2000). Unlike the statutes at issue in Lopez and Morrison, § 931 is limited by an express jurisdictional provision.

Specifically, the statute regulates body armor “sold or offered for sale, in interstate or foreign commerce.” Cf. Cortes, 299 F.3d at 1036 (con-eluding that a carjacking statute contained an express jurisdictional hook because it was limited to vehicles “transported, shipped, or received in interstate or foreign commerce”). Significantly, the “jurisdictional hook” in this statute is substantially different from the provision we rejected as essentially meaningless in McCoy, 323 F.3d at 1116.

In McCoy, we examined a child pornography statute with a jurisdictional provision that allowed the statute to be applied to all child pornography “which was produced using materials which have been mailed or so shipped or transported” in “interstate or foreign commerce.” Id. at 1116 (emphasis in original, some emphasis omitted).

We noted that “the limiting jurisdictional factor [was] almost useless” because “all but the most self-sufficient child pornographers will rely on film, cameras, or chemicals that traveled in interstate commerce and will therefore fall within the sweep of the statute.” Id. at 1125 (quoting United States v. Rodia, 194 F.3d 465, 473 (3rd Cir.1999)). By contrast, § 931 only affects body armor that is itself “sold or offered for sale” in interstate commerce. 18 U.S.C. § 921(a)(35). Thus, for example, homemade body armor or body armor produced intra-state would not be caught within the sweep of the statute. Cf.

Polanco, 93 F.3d at 563 (holding that a jurisdictional element “requiring the government to prove that the defendant shipped, transported, or possessed a firearm in interstate commerce, or received a firearm that had been shipped or transported in interstate commerce ... insures, on a case-by-case basis, that a defendant’s actions implicate interstate commerce to a constitutionally adequate degree.”); We recognize that a jurisdictional hook is not always “a talisman that wards off constitutional challenges.” Patton, 451 F.3d at 632.

As we have explained, [t]he Supreme Court’s decisions in Lopez and Morrison [], reject the view that a jurisdictional element, standing alone, serves to shield a statute from constitutional infirmities under the Commerce Clause. At most, the Court has noted that such an element “may establish that the enactment is in pursuance of Congress’ regulation of interstate commerce,” or that it may “lend support” to this conclusion. McCoy, 323 F.3d at 1125 (quoting Morrison, 529 U.S. at 612-13, 120 S.Ct. 1740).

Consequently, when traveling in uncharted waters, we must consider the jurisdictional hook together with additional factors, such as congressional findings. Id.; see also United States v. Kirk, 105 F.3d 997 (5th Cir.1997) (evenly divided court en banc) (upholding machine gun ban under third prong of Lopez rather than under a predecessor case to Scarborough). Here, we are confronted by the unique situation where a nearly identical jurisdictional hook has been blessed by the Supreme Court. Therefore, we need not engage in the careful parsing of post-Lopez case law that would otherwise be required.

Rather, we recognize that this determination is controlled by the Court’s analysis in Scarborough, and that “[u]ntil the Supreme Court tells us otherwise ... we [must] follow Scarborough unwaveringly.” Cortes, 299 F.3d at 1037 n. 2. Conclusion “Any doctrinal inconsistency between Scarborough and the Supreme Court’s more recent decisions is not for this Court to remedy.” Patton, 451 F.3d at 636 (citing Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997)).

Nor do we think it prudent to create a circuit split on this important statutory issue that Congress views as having nationwide implications. Because we are bound by Scarborough and our own jurisprudence, we decline to embrace Alderman’s challenge to § 931. AFFIRMED. . Alderman had been convicted in Washington state court of robbery in the second degree and sentenced to fourteen months in prison. In addition to that charge, Alderman had been convicted of several drug charges, including possession with intent to deliver cocaine and possession of cocaine. .

Although Alderman’s Notice of Appeal includes the district court’s denial of his motion to suppress [see ER 15], Alderman did not raise the issue in his briefs. We agree with the Government that Alderman waived his appeal of the motion to suppress. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.1999). [See also RED at 4], . Alderman’s Notice of Appeal states that he appeals "from the denial of [the] Motion to Suppress Evidence on June 14, 2006, and from the judgment and sentence entered on May 18, 2007.” [ER 15]. The Notice of Appeal does not specifically mention Alderman’s motion to dismiss.

Neither party referenced this oversight; because Alderman’s plea agreement specifically reserves his appeal right, we construe Alderman’s Notice of Appeal as encompassing the denial of the motion to dismiss. . Neither party seriously contends that § 931 can be justified under either of the first two categories.

As the Tenth Circuit explained in Patton, because § 931 "prohibits the stationary and entirely intrastate act of possession” and "is not directed at the movement of body armor through the channels of interstate commerce ... [§ 931] cannot be upheld under Congress’s power to regulate the channels of interstate commerce.” United States v. Patton, 451 F.3d 615, 621 (2006).

Nor can the statute be understood as regulating an instrumentality or "thing in” commerce because the statute “does not protect body armor while it is moving in interstate shipment [nor] is [it] directed at the use of body armor in ways that threaten or injure the instrumentalities of interstate commerce.” Id. at 622.