  [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
             United States Court of Appeals
                 For the First Circuit

No. 98-1146

                      UNITED STATES,

                        Appellee,

                            v.

              DANIELLIETO RADAMES FERNANDEZ,
                a/k/a Jose Aglaro Rosario,

                  Defendant, Appellant.

       APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MAINE

         [Hon. Gene Carter, U.S. District Judge]

                          Before

                 Selya, Stahl and Lynch,
                    Circuit Judges.

 Henry W. Griffin on brief for appellant.
 Jay P. McCloskey, United States Attorney, George T. Dilworth,
Assistant U.S. Attorney, and F. Mark Terison, Assistant U.S.
Attorney, on brief for appellee.

SEPTEMBER 24, 1998

                                           Per Curiam.  Upon careful review of the briefs and
record, we perceive no clear error in the district court's
application of an enhancement under U.S.S.G.  3C1.1.  The
enhancement was warranted because, inter alia, defendant
provided false information about his identity to the magistrate
judge.  See  3C1.1, application note 3(f).  We reject
defendant's arguments that his identity was not "material"
information and that he did not provide the false information
"willfully."
          We also perceive no clear error in the district
court's denial of a reduction under U.S.S.G.  3E1.1, given the
district court's assessment of defendant's credibility and his
shifting stories about his responsibility for the drugs.  See  3E1.1, application note 4.
          Affirmed.  See 1st Cir. Loc. R. 27.1.

                           -2-


                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                              File Name: 07a0275p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________

                                                              X
                                         Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                               -
                                                               -
                                                               -
                                                                   No. 06-4405
               v.
                                                               ,
                                                                >
 MING LIOU,                                                    -
                                      Defendant-Appellant. -
                                                              N
                               Appeal from the United States District Court
                              for the Southern District of Ohio at Columbus.
                             No. 06-00150—James L. Graham, District Judge.
                                           Submitted: July 18, 2007
                                      Decided and Filed: July 20, 2007
             Before: MOORE and GILMAN, Circuit Judges; FORESTER, District Judge.*
                                              _________________
                                                    COUNSEL
ON BRIEF: Richard A. Cline, RICHARD CLINE & CO., LLC, Columbus, Ohio, David C. Young,
SUNBURY & YOUNG, Columbus, Ohio, for Appellant. Douglas W. Squires, UNITED STATES
ATTORNEY, Columbus, Ohio, for Appellee.
                                              _________________
                                                  OPINION
                                              _________________
       KAREN NELSON MOORE, Circuit Judge. Ming Liou appeals the twelve-month sentence
imposed after he pleaded guilty to a single count of bribing a public official, in violation of 18
U.S.C. § 201(b)(1)(A). In light of the United States Supreme Court’s recent decision in Rita v.
United States, --- U.S. ----, 127 S. Ct. 2456 (2007), we AFFIRM the district court’s sentence.
                        I. FACTUAL AND PROCEDURAL BACKGROUND
       Liou was the owner and operator of Beta Electronics, Inc. (“Beta”). Beta sold electronics,
(primarily, laser pointers and USB fast drives), and Liou operated the company from his home. The
IRS assigned Agent Beth Cox to audit Beta’s 2003 income tax return, as well as the 2003 personal
income tax return of Liou and his wife.

         *
          The Honorable Karl S. Forester, United States District Judge for the Eastern District of Kentucky, sitting by
designation

                                                          1
No. 06-4405               United States v. Liou                                                                 Page 2

        On July 11, 2005, during a meeting with Cox, Liou offered her a designer handbag as a gift,
claiming it was worth $400. Cox declined. In the same meeting, Liou divulged that he would have
to pay his accountant $5000 to handle the audit, but said that he would rather pay the $5000 to Cox
if she would expedite the audit and “not be too hard on him.” Joint Appendix (“J.A.”) at 77 (Plea
Hr’g Tr. at 20). Cox did not accept or reject the offer. After the meeting, however, she did relay
this conversation to her superiors.
        The following day, Cox made an electronically monitored telephone call to Liou to schedule
their next meeting. Liou referred to the $5000 offer and asked Cox to let him know whether she was
willing to accept it. On July 25, 2005, Cox made another electronically monitored phone call to
confirm with Liou that they would meet the next day. During this conversation, Liou stated, “You
know the one thing you say you would get back to me, I have it prepared.” J.A. at 77 (Plea Hr’g Tr.
at 20). Cox understood that Liou was referring to the $5000.
       On July 26, 2005, Cox wore a wire to her meeting with Liou at his home, which was also his
place of business. Liou gave Cox the $5000 in cash and the designer purse. He asked that she
terminate the audit quickly and favorably to him, that she not let anyone else know that she had
given him a break, and that she not deposit the cash in the bank.
        On June 26, 2006, the government filed an Information charging Liou with one count of
bribing a public official in violation of 18 U.S.C. § 201(b)(1)(A). On July 13, 2006, Liou pleaded
guilty.
        A U.S. Probation Officer prepared a Presentence Investigation Report (“PSR”) for Liou. The
PSR revealed that Liou was fifty years old, had no prior criminal history, and was the sole source
of support for his wife and twenty-one-year-old son. The PSR calculated Liou’s total offense level
to be 12, and his criminal history to be category I; the Guidelines called for a sentence of ten to
sixteen months. On October 5, 2006, Liou filed a Sentencing Memorandum. Liou objected to the
PSR, arguing that his offense was the result of aberrant behavior, and accordingly he should receive
a downward departure under Guideline § 5K2.20. Separately from this objection, Liou argued that
home confinement would be a “reasonable sentence” to accomplish the sentencing goals listed at
18 U.S.C. § 3553(a). In support of this argument, Liou noted, among other things, that (1) if he were
to go to prison, his business would fail, and (2) his wife was completely dependent upon him, could
not speak English, and would have to return to Taiwan. These problems were exacerbated by his
son Alan’s young age and history of mental disorders, which prevented Alan from caring for his
mother or the business in Liou’s absence.
        The district court held a sentencing hearing on October 12, 2006, and rejected Liou’s request
for a downward departure based on aberrant behavior. Additionally, after listing the § 3553(a)
sentencing factors, the district court concluded that the most important factors were “the need for
the sentence to reflect the seriousness of the offense and to promote respect for the law.” J.A. at 90
(Sentencing Hr’g Tr. at 8). The district court concluded that the sentence must “be sufficient to
deter other individuals who may be similarly situated,” J.A. at 91 (Sentencing Hr’g Tr. at 9), and
more specifically that such a sentence must “include[] a significant term of incarceration,” J.A. at
92 (Sentencing Hr’g Tr. at 10).    Consequently, the district court sentenced Liou to twelve months
and one day of incarceration.1 Noting Liou’s family and business obligations, the district court
permitted him to self-report within sixty days of the sentencing hearing.
         Liou timely filed a notice of appeal on October 19, 2006.

         1
           The district court noted that the additional day was favorable to Liou because it “g[ave] the defendant the
opportunity to have some reduction in his sentence by virtue of good behavior in the institution.” J.A. at 92 (Sentencing
Hr’g Tr. at 10).
No. 06-4405               United States v. Liou                                                                   Page 3

                                                   II. ANALYSIS
         On appeal, Liou argues that the district court erred by (1) failing to discuss explicitly his
familial circumstances, and (2) imposing a sentence that included jail time. (Liou concedes that the
district court aptly addressed his request for a downward departure under Guideline § 5K2.20, and
does not appeal the district court’s rejection of this request.) Liou requests that the district court’s
sentence be vacated and that he be resentenced.
A. Standard of Review
       After Liou appealed, the Supreme Court issued its decision in Rita. To determine the
appropriate standard of review in this case, we must first consider the effect of Rita.
         1. Our Post-Booker Jurisprudence
        In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court “transformed the
Sentencing Guidelines from a mandatory scheme to an advisory resource.” United States v.
Richardson, 437 F.3d 550, 553 (6th Cir. 2006). The Court further held that in reviewing a district
court’s sentence, we are to apply “a practical standard of review . . . familiar to appellate courts:
review for ‘unreasonable[ness].’” Booker, 543 U.S. at 261 (alteration in original). In our post-
Booker jurisprudence we determined that “[r]easonableness has both substantive and procedural
components.” United States v. Jones, --- F.3d ----, No. 06-5551, 2007 WL 1595540, *5 (6th Cir.
June 5, 2007).
        As to procedural reasonableness, we have held that “[a] sentence may be procedurally
unreasonable if the district judge fails to consider the applicable Guidelines range or neglects to
consider the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge
deems an appropriate sentence without such required consideration.” Id. (internal citations and
quotation marks omitted). Additionally, we have suggested that when “a defendant raises a
particular argument in seeking a lower sentence, the record must reflect both that the district judge
considered the defendant’s argument and that the judge explained the basis for rejecting it.” Id.
(quoting Richardson, 437 F.3d at 554).
        In considering substantive reasonableness, we have held that “[a] sentence may [be]
substantively unreasonable where the district court ‘select[s] the sentence arbitrarily, bas[es] the
sentence on impermissible factors, fail[s] to consider pertinent § 3553(a) factors, or giv[es] an
unreasonable amount of weight to any pertinent factor.’” Id. at *6 (quoting United States v.
Ferguson, 456 F.3d 660, 664 (6th Cir. 2006)) (second through fifth alterations in original).
Although we have noted that the border between factors properly considered “substantive” and those
properly considered “procedural” is blurry if not porous, see id. at *6 n.3, our post-Booker
jurisprudence requires us to consider each of these factors in determining whether a sentence is
reasonable.
        Further, with regard to the substantive reasonableness inquiry, we have applied a “rebuttable
presumption of reasonableness” to sentences falling within the applicable Guidelines range. United
States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006), cert. denied, --- U.S. ---, 74 U.S.L.W. 3707
(June 29, 2007).2 However, we have also rejected the notions that a within-Guidelines sentence is

         2
            We have made clear that this presumption does not affect our consideration of procedural reasonableness.
See, e.g., United States v. Cage, 458 F.3d 537, 541 (6th Cir. 2006) (noting that the presumption can be “rebutted in a
case in which the record fails to reflect that the district court considered the requisite factors in imposing sentence”);
Richardson, 437 F.3d at 554 (“This rebuttable presumption does not relieve the sentencing court of its obligation to
explain to the parties and the reviewing court its reasons for imposing a particular sentence.”); United States v. Foreman,
No. 06-4405              United States v. Liou                                                               Page 4

“per-se reasonable,” Richardson, 437 F.3d at 554 n.2 (quoting Webb, 403 F.3d at 385 n.9), and that
a sentence falling outside the Guidelines range is presumptively unreasonable, Ferguson, 456 F.3d
at 664-65. Some of our precedents might be read to indicate that the presumption of reasonableness
implies an enhanced burden on the party challenging the district court’s sentence. See, e.g., United
States v. Shoup, 188 F. App’x 418, 425 (6th Cir. 2006) (unpublished) (“Ultimately, Shoup has failed
to overcome the rebuttable presumption of reasonableness that we must apply to this case.”); United
States v. Crenshaw, 182 F. App’x 440, 442 (6th Cir. 2006) (unpublished) (“Crenshaw has not
pointed to anything which overcomes th[e] presumption [of reasonableness] here.”). We have not,
however, clearly identified the contours of this presumption or its ultimate effect.
        Other circuits disagreed with our holding in Williams and held that a sentence falling within
the applicable Guidelines range is not entitled to a presumption of reasonableness. See Rita, 127 S.
Ct. at 2462 (citing United States v. Jimenez-Beltre, 440 F.3d 514, 518 (1st Cir. 2006) (en banc), cert.
denied, 127 S. Ct. 928 (2007); United States v. Fernandez, 443 F.3d 19, 27 (2d Cir.), cert. denied,
127 S. Ct. 192 (2006); United States v. Cooper, 437 F.3d 324, 331-32 (3d Cir. 2006); United States
v. Talley, 431 F.3d 784, 788 (11th Cir. 2005)). The Supreme Court granted certiorari in Rita “to
decide whether a circuit court may afford a ‘presumption of reasonableness’ to a ‘within Guidelines’
sentence.” Id.
         2. The Supreme Court’s Decision in Rita
        In Rita, the Supreme Court held that “the law permits the courts of appeals to use th[e]
presumption” of reasonableness when addressing within-Guidelines sentences. Id. at 2459. On this
point, Rita does little to disturb our post-Booker jurisprudence. It does, however, clarify various
aspects.
        First, Rita clarifies that “appellate ‘reasonableness’ review merely asks whether the trial
court abused its discretion.” Id. at 2465. This does not mean, however, that we import the abuse-of-
discretion standard from other contexts. To the contrary, Booker merely gives the district courts
discretion in sentencing, in accordance with the § 3553(a) factors, and reasonableness review is the
manner in which the courts of appeals review sentences to determine if the sentencing courts abused
that discretion. See id.; Booker, 543 U.S. at 261-62.
         Second, Rita reinforces our conclusion that reasonableness review requires us to inquire into
both “the length of the sentence” and “the factors evaluated and the procedures employed by the
district court in reaching its sentencing determination.” United States v. Webb, 403 F.3d 373, 383
(6th Cir. 2005). Emphasizing that “[j]udicial decisions are reasoned decisions,” Rita exhorts the
sentencing judge to satisfy the procedural requirement of “set[ting] forth enough to satisfy the
appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising
his own legal decisionmaking authority.” Rita, 127 S. Ct. at 2468. The amount of reasoning
required varies according to context. Rita indicates that when a sentencing judge concurs with the
Sentencing Commission’s conclusion that a within-Guidelines sentence is appropriate for a given
defendant, the explanation for the sentence generally need not be lengthy. Id. “Whe[n] the
defendant or prosecutor presents nonfrivolous reasons for imposing a different sentence, however,
the judge will normally go further and explain why he has rejected those arguments.” Id.
        Third, Rita demands that any “presumption” of substantive reasonableness is not a
“presumption” as generally defined. Id. at 2463. Black’s Law Dictionary notes, “Most
presumptions are rules of evidence calling for a certain result in a given case unless the adversely
affected party overcomes it with other evidence. A presumption shifts the burden of production or

436 F.3d 638, 644 (6th Cir. 2006) (noting that the presumption does not render a sentence reasonable when “there is no
evidence that the district court followed its statutory mandate”).
No. 06-4405                United States v. Liou                                                                      Page 5

persuasion to the opposing party, who can then attempt to overcome the presumption.” BLACK’S
LAW DICTIONARY 1203 (Brian A. Garner, ed., 7th ed. 1999); see also id. at 1205 (defining
“rebuttable presumption” as “[a]n inference drawn from certain facts that establish a prima facie
case, which may be overcome by the introduction of contrary evidence”).
         Rita, however, notes that the presumption of reasonableness “is not binding. It does not, like
a trial-related evidentiary presumption insist that one side, or the other, shoulder a particular burden
of persuasion or proof lest they lose their case.” Rita, 127 S. Ct. at 2463. Accordingly, the
presumption does not “reflect strong judicial deference of the kind that leads appeals courts to grant
greater factfinding leeway to an expert agency than to a district judge.” Id. The Court explained
that “the presumption reflects the fact that, by the time an appeals court is considering a within-
Guidelines sentence on review, both the sentencing judge and the Sentencing Commission will have
reached the same conclusion as to the proper sentence in the particular case.” Id. And that
agreement,    says Rita, “significantly increases the likelihood that the sentence is a reasonable one.”
Id.3
        Today, as before Rita, regardless of whether the sentence falls within the Guideline range,
we review the sentencing transcript to ensure (1) that the sentencing judge adequately considered
the relevant § 3553(a) factors and clearly stated his reasons for imposing the chosen sentence,4 and
(2) that the sentence is substantively reasonable.
B. Procedural Reasonableness
       Liou first argues that the district court erred by failing to comment on the disproportionate
impact that incarceration would have on him, in light of his responsibilities to his family and his
business. He argues that these circumstances constitute a mitigating factor that required careful
consideration and comment by the district court.
        As noted above, the district court offered clear reasons for its sentence. It articulated the
various § 3553(a) factors and then identified the two factors it found most relevant. The district
court then explained why imprisonment was necessary to satisfy these factors. Liou is correct that
the district court did not specifically explain why it was not more moved by Liou’s family
circumstances or why they were less of a concern than the need for the sentence to reflect the

         3
            In our first sentencing decision after Rita, we stated that, because the defendant was sentenced within the
applicable Guidelines range, it was “incumbent upon [the defendant] to establish that his sentence was unreasonable.”
United States v. Crowell, --- F.3d ----, 2007 WL 1814333, at *6 (6th Cir. June 26, 2007) (citing Rita, 127 S. Ct. at 2462-
63). Our statement in Crowell should not be read to require a party challenging a within-Guidelines sentence to bear
a burden higher than that established by Rita. See Rita, 127 S. Ct. at 2463 (stating that the allowable presumption of
reasonableness “does not . . . insist that one side, or the other, shoulder a particular burden of persuasion or proof lest
they lose their case”); id. at 2465 (noting that the presumption of reasonableness does not have “independent legal
effect”). When the appellant challenges a within-Guidelines sentence, it must, of course, present persuasive arguments
that the district court erred in its sentencing determination, just as any burden-bearing appellant must. We understand
Crowell to highlight this point.
         4
            We note that some of our pre-Rita precedents—Jones and Richardson in particular—might be read to require
district judges to recite and analyze explicitly each argument, whether frivolous or non-frivolous, that a defendant even
arguably raises in support of a lower sentence. We do not read our precedents so robustly. See United States v. McGee,
--- F.3d ----, 2007 WL 1989017, at *6 (6th Cir. July 11, 2007) (noting that, notwithstanding Richardson, the district court
need not address an argument lacking factual support). Further, we recognize that Rita contravenes such a strong
technical requirement.
           Rita does, however, instruct district courts to “set forth enough [reasoning] to satisfy the appellate court.” Rita,
127 S. Ct. at 2468. Accordingly, while a district court's failure to address each argument head-on will not lead to
automatic vacatur, we will vacate a sentence if the “context and the record” do not “make clear” the court’s reasoning.
Id. at 2469. And, of course, a thorough explanation is the most reliable way for a district court to make clear its reasons
supporting a given sentence.
No. 06-4405            United States v. Liou                                                      Page 6

seriousness of the offense and to promote respect for the law. Nonetheless, the district court did
acknowledge Liou’s family and business circumstances at the sentencing hearing, when on this
basis, it gave Liou sixty days to self-report: “Now, the Court is going to permit Mr. Liou to
voluntarily surrender to the institution designated by the Bureau of Prisons; and in light of his family
circumstances and in light of his business, the Court is going to give him 60 days to put his affairs
in order before reporting to serve this sentence.” J.A. at 93 (Sentencing Hr’g Tr. at 11).
        As in Rita, “[t]he record makes clear that the sentencing judge listened to each argument.”
127 S. Ct. at 2469. Further, as in Rita, “context and the record make clear” that the sentencing judge
understood Liou’s family and business obligations but did not believe they outweighed other
§ 3553(a) factors that the judge found more pertinent. Id.
       In sum, the sentencing judge’s performance satisfies Rita. That said, the better practice,
post-Rita, is for a sentencing judge to “go further and explain why he has rejected [each of the
defendant’s nonfrivolous] arguments” for imposing a sentence lower than the Guidelines range. Id.
at 2468. Doing so will help to ensure that district courts “set forth enough to satisfy the appellate
court.” Id. Nonetheless, we cannot say that Liou’s sentence runs afoul of Rita.
C. Substantive Reasonableness
        Liou also argues that his sentence is objectively unreasonable “precisely because the district
court failed to adequately address the mitigating factor advanced by Mr. Liou at sentencing.”
Appellant’s Br. at 17. Although this appears identical to the argument Liou offered in favor of
finding the sentence procedurally unreasonable, we interpret Liou’s focus to be that the length
(twelve months) and type (incarceration rather than community confinement) of sentence are too
harsh in light of his mitigating circumstances. Liou suggests that community confinement
constitutes a less-restrictive alternative to incarceration, and that it would be adequate to serve the
interests of deterrence and “just punishment” that the district court cited. In support of this
argument, Liou cites a series of out-of-circuit, pre-Booker cases establishing that various courts have
imposed more-lenient sentences in similar cases. This argument misapprehends the post-Booker role
of appellate courts. While in the abstract we might agree that community confinement could serve
the relevant interests, it is for the district court to determine, in the first instance, what sentence is
“sufficient, but not greater than necessary” to meet these interests. 18 U.S.C. § 3553(a). We review
the district court’s sentence for reasonableness. Although Liou argues that the district court did not
weigh properly his mitigating circumstances, after carefully reviewing all the material presented to
the district court, we cannot say that the incarceration imposed was an unreasonable sentence,
regardless of whether it is the sentence that we might select ourselves. Accordingly, we reject
Liou’s argument.
                                         III. CONCLUSION
        For the foregoing reasons, we AFFIRM the judgment of the district court.


233 F.Supp. 815 (1964)
Ollie McCLUNG, Sr. and Ollie McClung, Jr., Plaintiffs,
v.
Nicholas deB. KATZENBACH, as Acting Attorney General of the United States of America, et al., Defendants.
Civ. A. No. 64-448.
United States District Court N. D. Alabama, S. D.
September 17, 1964.
Probable Jurisdiction Noted October 5, 1964.
*816 *817 Robert McD. Smith, William G. Somerville, Jr., and James H. Faulkner, of Lange, Simpson, Robinson & Somerville, Birmingham, Ala., for plaintiffs.
K. William O'Connor, Department of Justice, Washington, D. C., for defendants.
Before GEWIN, Circuit Judge, and LYNNE and GROOMS, District Judges.
Probable Jurisdiction Noted October 5, 1964. See 85 S.Ct. 11.
PER CURIAM.
This is a suit by the owners and operators of a restaurant business in Birmingham, Alabama, seeking to enjoin the enforcement of the provisions of title II of the Civil Rights Act of 1964[1] on the ground that they are unconstitutional. A statutory three-judge court was convened pursuant to 28 U.S.C.A. § 2282, and the case was set down for hearing on September 1, 1964, on plaintiffs' prayer for a temporary injunction. Prior to the hearing the defendants moved to dismiss the complaint on the separate grounds that (1) the court lacks jurisdiction over defendant Robert F. Kennedy[2] as Attorney General of the United States, because of insufficient service of process; (2) since defendant Robert F. Kennedy is an indispensable party, the insufficiency of service of process upon him renders co-defendant Macon L. Weaver, United States Attorney for the Northern District of Alabama, an improper party defendant; (3) the complaint fails to state a claim upon which relief can be granted; and, (4) the court lacks equitable jurisdiction because plaintiffs have an adequate remedy at law. This motion was heard by and submitted to the full court on briefs and oral argument of counsel on September 1, 1964, and was taken along with plaintiffs' prayer for a temporary injunction.

THE MOTION TO DISMISS
The first two grounds for dismissal, both based upon the theory that service of process upon the Attorney General was defective, are no longer in issue. Service of process upon the Attorney General was made initially by certified mail in accordance with the provisions of 28 U.S.C.A. § 1391(e), and defendants contended that because fictitious parties were joined as defendants the provisions of section 1391(e) were inapplicable. Thereafter, plaintiffs amended their complaint by striking and dismissing therefrom the unserved fictitious parties and caused the complaint as amended to be re-served upon the Attorney General under section 1391(e). It was conceded by counsel for defendants on argument that the first two grounds in their motion to dismiss were thereby eliminated and accordingly are considered abandoned.
Defendants have also insisted in their brief and oral argument that the complaint does not present an actual controversy between the parties and that the adequacy of legal remedies deprives this court of equitable jurisdiction. These grounds were argued in the hearing on plaintiffs' prayer for temporary injunction at which evidence was adduced developing the undisputed facts set out below.[3]
Contending that there has not been a sufficient showing of a specific threat of *818 immediate enforcement of title II of the act as to the plaintiffs, defendants insist alternatively that it is not alleged that defendants either have instituted enforcement proceedings against the plaintiffs or have conducted an investigation to determine whether plaintiffs have violated the act, and that insufficient facts are alleged to bring the plaintiffs within the coverage of the act.
In urging that the allegations are insufficient to show coverage, defendants point first to averments in the complaint respecting the remoteness of plaintiffs' business from any place normally frequented by interstate travelers, the absence of any advertising by them and the averment that to their knowledge they serve no "interstate travelers" as that term is used in the act. It is true that these allegations, substantiated by evidence at the hearing, tend strongly to indicate an absence of coverage under title II insofar as it relates to a restaurant which "serves or offers to serve interstate travelers", and defendants have made no contention that they are covered by virtue of that part of the act.
Defendants then seize upon the averment that "some" of the food served in plaintiffs' restaurant originated in some form outside of Alabama. This use of the word "some", say defendants, is insufficient because the act uses the term "substantial" in defining the portion of a restaurant's food which must move in *819 commerce in order that it be within the alternative criterion of coverage prescribed by section 201(c) (2). We are of the opinion that the meaning of the term "substantial" as there used must and can only be determined judicially, and we conclude as a matter of law, on the basis of objective evidence, that a "substantial" portion of the food served by plaintiffs has moved in commerce within the meaning of the act.
As defendants note, the complaint avers neither that enforcement proceedings have been instituted against plaintiffs nor that their restaurant was investigated by defendants prior to the commencement of the action. Plaintiffs do aver that prior to its filing they had violated the provisions of title II applicable to their restaurant by refusing to provide service to Negroes on the same basis as they provide to their other customers, and the evidence shows that since its commencement they have consistently continued and will continue thus to violate the act. In this respect alone the circumstances of this case are quite different from those existing in the cases urged by defendants in support of their position that this suit presents no justiciable controversy.
One of the plaintiffs testified further that he was caused in large part to institute this action by the fact that the defendants two days previously had filed in this court an enforcement suit against other persons operating restaurants of a similar character, and it appears from the complaint in that suit[4] that the act's coverage was invoked in part upon the basis that a substantial part of their food had moved in commerce. And plainly the Attorney General has indicated an intention to enforce the provisions of title II as against its violators. We cannot say, in these circumstances, that enforcement against plaintiffs was not reasonably imminent when this action was commenced, and no case cited by defendants or found by us has held under comparable circumstances that for this reason an actual controversy did not exist.
There are, moreover, many instances in which a threat of imminent enforcement of a law has not been considered requisite to the existence of a justiciable controversy or the exercise by federal courts of equitable jurisdiction in similar suits seeking anticipatory relief from the operation and enforcement of the law.
In their complaint plaintiffs attack the validity of title II of the act in its entirety. The act requires in positive terms that the plaintiffs, in the operation of their restaurant, afford to all persons "the full and equal enjoyment of the goods, services [and] facilities." Consequently, as to the plaintiffs, title II creates a mandatory duty to which it commands immediate obedience. As against this, the plaintiffs contend, and it is the object of this suit to determine, that they have a constitutional right to operate their business free of the restrictions now imposed upon it by the act. They aver, and have shown by evidence, that these requirements of title II will cause substantial and irreparable injury to their business. Thus, the substance of the allegations and proof is that the provisions of title II and the duty it imposes constitute a present injurious impingement upon the plaintiffs' property rights. The existence of a justiciable controversy as well as the equitable jurisdiction of the federal courts and the right to injunctive relief have been upheld often under similar circumstances. Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926); Commonwealth of Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117 (1923); Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160 (1936); Public Utilities Comm'n of State of California v. United States, 355 U.S. 534, 78 S.Ct. 446, 2 L.Ed.2d 470 (1958); Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517 (1952); Pierce v. Society of Sisters, 268 U.S. 510, 45 *820 S.Ct. 571, 69 L.Ed. 1070 (1925); Currin v. Wallace, 306 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441 (1939); Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L. Ed. 255 (1923); Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942). It is our considered opinion that these decisions are controlling upon the present case and that defendants' motion to dismiss the complaint therefore should be overruled.

THE MERITS
Having negotiated the procedural hurdles, we proceed to an examination of title II of the Civil Rights Act of 1964:
"Sec. 201. (a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.
"(b) Each of the following establishments which serves the public is a place of public accommodation within the meaning of this title if its operations affect commerce, or if discrimination or segregation by it is supported by State action: * * *
* * * * * *
"(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;
* * * * * *
"(c) The operations of an establishment affect commerce within the meaning of this title if * * * (2) in the case of an establishment described in paragraph (2) of subsection (b), it serves or offers to serve interstate travelers or a substantial portion of the food which it serves, or gasoline or other products which it sells, has moved in commerce * * *." (Emphasis supplied.)
Contending that the foregoing portions of the act, as applied to the local business which they operate, are unconstitutional, plaintiffs insist that when private establishments within the confines of the respective states, in the lawful and legitimate exercise of their private discretion, wish to select their customers there is no power, under the Constitution, or any of its amendments, granted to the federal government to regulate such private accommodations.
The heart of the federal compact beats in the tenth amendment of the Constitution: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Thus it is to the Constitution and its amendments that we must look to determine whether Congress possesses the power it has in this instance sought to exercise.
Insofar as we can determine from a review of the legislative history of the act[5] and the extensive debates in the Senate relevant to title II,[6] the only three suggested sources of congressional power were the thirteenth amendment, the fourteenth amendment, and the commerce clause.
At oral argument counsel for defendants forthrightly stated their opinion that the thirteenth amendment was neither authority for nor prohibitory of this legislation. We agree, thereby rejecting the argument of plaintiffs that the effect of such act is to impose upon them a *821 condition of involuntary servitude in violation of such amendment.[7]
It cannot be successfully contended that the above quoted portions of the act may be constitutionally applied to these plaintiffs under the grant of legislative power contained in the fourteenth amendment[8] since it was conceded at oral argument that the State of Alabama, in none of its manifestations, has been involved in the private conduct of plaintiffs in refusing to serve food to Negroes for consumption on the premises. Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883); Peterson v. Greenville, 373 U.S. 244, 83 S.Ct. 1119, 10 L.Ed.2d 323 (1963).
In any discussion of the commerce clause as a grant of power to the national government to regulate activities commonly described as private and local we keep in mind the admitted fact that a majority of sincere and conscientious members of Congress believed this legislation to be in the national interest and necessary to end practices which they considered debasing to human dignity. Of course, we express no opinion as to the wisdom of the legislation and confine our consideration to the constitutionality of the provisions with which we are concerned.
The commerce clause, appearing in article 1, section 8 of the Constitution, reads as follows:
"The Congress shall have Power * * *.
* * * * * *
"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
* * * * * *
"* * * [And] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers * * *."
The language is simple and unadorned. It has remained unchanged since 1789. With reference to it, to allay popular misgivings as to the nature and extent of powers vested in the Union by the new Constitution, James Madison wrote, "The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained."[9] And Alexander Hamilton made it clear that the commerce clause was intended to restrain the "interfering and unneighborly regulations of some states."[10] In spite of its simplicity and clarity and because of the constantly increasing "interpenetrations of modern society,"[11] it has spawned thousands of cases.
In Civil Rights Cases, 109 U.S. 3 (1883), at page 10, 3 S.Ct. 18, at page 20, Mr. Justice Bradley characterized section 1 of the Civil Rights Act of 1875: "Its effect is to declare that in all inns, public conveyances, and places of amusement, colored citizens, whether formerly slaves or not, and citizens of other races, shall have the same accommodations and privileges in all inns, public conveyances, and places of amusement, as are enjoyed by white citizens; and vice versa." Thereafter, he posed and answered a question: "Has congress constitutional power to make such a law? Of course, no one will contend that the power to pass it was contained in the constitution before the adoption of the last three amendments [thirteenth, fourteenth and fifteenth]." Since the commerce clause had been in the Constitution for almost one hundred years and since we are advised *822 that the Solicitor General in brief had urged upon the court the sufficiency of its grant of power to sustain the challenged legislation, Mr. Justice Bradley's pronouncement is, to say the least, highly intriguing and might be accorded more than persuasive authority but for the subsequent statement in Butts v. Merchants' & Miners' Transp'n Co., 230 U.S. 126 (1913), at page 132, 33 S.Ct. 964, at page 965, 57 L.Ed. 1422:
"The question of the constitutional validity of those sections came before this court in Civil Rights Cases, 109 U.S. 3, 27 L.Ed. 836, 3 Sup.Ct.Rep. 18, and upon full consideration it was held (a) that they received no support from the power of Congress to regulate interstate commerce because, as is shown by the preamble and by their terms, they were not enacted in the exertion of that power * * *."
While we shall not attempt the impossible task of a precise delineation of the contours of the power to regulate interstate commerce granted the Congress or the Herculean labor of analyzing the multitudinous cases dealing with various aspects of what may be termed primary and implied power, we shall make an effort to distill from the decided cases a definitive statement of such power which may be applied to this case only.
Some presuppositions are permissible; indeed they are required by the teaching of Wickard v. Filburn, 317 U.S. 111, 120, 63 S.Ct. 82, 87, "At the beginning Chief Justice Marshall described the federal commerce power with a breadth never yet exceeded. Gibbons v. Ogden, 9 Wheat. 1, 194, 195, 6 L.Ed. 23."; of Swift & Co. v. United States, 196 U.S. 375, 398, 25 S.Ct. 276, 280, 49 L.Ed. 518, "* * * commerce among the states is not a technical legal conception, but a practical one, drawn from the course of business."; of The Pipe Line Cases, 234 U.S. 548, 560-561, 34 S.Ct. 956, 958, 58 L.Ed. 1459, "The control of Congress over commerce among the states cannot be made a means of exercising powers not entrusted to it by the Constitution * * *."; and, of National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30, 57 S.Ct. 615, 621, 81 L.Ed. 893, "The authority of the federal government may not be pushed to such an extreme as to destroy the distinction, which the commerce clause itself establishes, between commerce `among the several States' and the internal concerns of a State. That distinction between what is national and what is local in the activities of commerce is vital to the maintenance of our federal system."
Proceeding to explicate our understanding of the nature and extent of the power with which we are concerned, it is quite unnecessary to labor the obvious, that the commerce clause constitutes an express grant of power to Congress to regulate interstate commerce, which consists of the movement of persons, goods or information from one state to another. The cases are legion sustaining its exercise in this area.[12] Its power is not restricted, however, to the regulation of interstate commerce. Congress is further invested with the power to regulate intrastate activities, but only to the extent that action on its part is necessary or appropriate to the effective execution of its expressly granted power to regulate interstate commerce.
The power of Congress to regulate wholly intrastate activities is brought into play only when those activities have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from practices within a state which burden its freedom or obstruct *823 its flow.[13] The exercise of such power must necessarily be prospective, for the reason that, unlike Tennyson's brook, interstate commerce does not run on forever. At some time it must come to an end within the boundaries of some state.[14]
This century has witnessed a dynamic expansion of federal control not only of the movements of commerce between the states but also of intrastate activities which have been found to burden its freedom or obstruct its flow. Thus Congress has exercised its power granted by the commerce clause to enact the Robinson-Patman Act,[15] the Federal Food, Drug and Cosmetic Act,[16] the White Slave Laws,[17] the Gambling Devices Transportation Act,[18] the Agricultural Adjustment Act of 1938,[19] the Fair Labor Standards Act,[20] and the National Labor Relations Act,[21] among others.
Concededly, the latter three, in broad extension of federal control, have immediate, direct, and practical impacts upon activities which were at one time considered wholly intrastate in nature thus resting in the domain of state control.
In each instance Congress cautiously made clear legislative findings that the regulation of the intrastate practices dealt with was necessary or appropriate to the effective execution of its expressly granted power to regulate interstate commerce. In the National Labor Relations Act such findings are set forth in 29 U.S.C.A. § 151. Moreover, assurance was given that regulation of essentially local matters would apply only where there was an actual effect on interstate commerce by requiring that this be determined administratively or judicially on a record in each individual case. 29 U.S.C.A. §§ 159(c) and 160(a). In the Agricultural Adjustment Act Congress made elaborate findings to establish an effect on commerce of the intrastate activities sought to be regulated. 7 U.S. C.A. §§ 1311, 1321, 1331, 1341, 1351, 1357, 1379a, and 1380a.
The Fair Labor Standards Act contains a built-in limitation on its enforcement by requiring a judicial determination of the ultimate fact that acts of employers or employees actually affect such commerce on a case by case basis.
The Civil Rights Act of 1964 contains no legislative findings and we proceed to a critical examination of its provisions to determine whether it may nevertheless successfully survive the constitutional challenge. It is our opinion that neither *824 of the three above-mentioned acts is an apposite analogy and that the cases arising thereunder afford scant persuasive authority beyond the broad principles enunciated therein.[22]
The duty of this court is classically defined in United States v. Butler, 297 U.S. 1, at pages 62 and 63, 56 S.Ct. 312, at page 318, 80 L.Ed. 477:
"There should be no misunderstanding as to the function of this court in such a case. It is sometimes said that the court assumes a power to overrule or control the action of the people's representatives. This is a misconception. The Constitution is the supreme law of the land ordained and established by the people. All legislation must conform to the principles it lays down. When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the government has only one duty; to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former. All the court does, or can do, is to announce its considered judgment upon the question. The only power it has, if such it may be called, is the power of judgment. This court neither approves nor condemns any legislative policy. Its delicate and difficult office is to ascertain and declare whether the legislation is in accordance with, or in contravention of, the provisions of the Constitution; and, having done that, its duty ends.
"The question is not what power the federal government ought to have, but what powers in fact have been given by the people. It hardly seems necessary to reiterate that ours is a dual form of government; that in every state there are two governments; the state and the United States. Each state has all governmental powers save such as the people, by their Constitution, have conferred upon the United States, denied to the states, or reserved to themselves. The federal union is a government of delegated powers. It has only such as are expressly conferred upon it and such as are reasonably to be implied from those granted. In this respect we differ radically from nations where all legislative power, without restriction or limitation, is vested in a parliament or other legislative body subject to no restrictions except the discretion of its members."
Paraphrased, for clarity of discussion, title II of the act declares that no restaurant may refuse service to any person because of his race, color, religion, or national origin either if it serves or offers to serve interstate travelers or a substantial portion of the food which it serves has moved in commerce.
No case has been called to our attention, we have found none, which has held that the national government has the *825 power to control the conduct of people on the local level because they may happen to trade sporadically with persons who may be traveling in interstate commerce. To the contrary, see Williams v. Howard Johnson's Restaurant, 268 F.2d 845 (4th Cir.1959); Elizabeth Hospital, Inc. v. Richardson, 269 F.2d 167 (8th Cir.1959); United States v. Yellow Cab Co., 332 U.S. 218, 67 S.Ct. 1560, 91 L.Ed. 2010 (1947).
On the authority of the cases collected in footnote 14, infra, we believe it to be a settled rule of constitutional law that goods cease to constitute a part of interstate commerce, and become a part of the general property in a state, and amenable to its laws, when they are sent into a state, either for the purpose of sale or in consequence of a sale. The simple truth of the matter is that Congress has sought to put an end to racial discrimination in all restaurants wherever situated regardless of whether there is any demonstrable causal connection between the activity of the particular restaurant against which enforcement of the act is sought and interstate commerce.
If our premise is correct, Congress sought to achieve its end by the sophisticated means of first declaring a restaurant is a place of public accommodation if its operations affect commerce and by thereafter abandoning the "affect commerce" requirement by legislating what is tantamount to a conclusive presumption that its operations do affect commerce if it is proved either that it serves or offers to serve interstate travelers or that a substantial portion of the food which it serves has at some time, however remote, moved in commerce. The courts will not sustain a presumption when there is "no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience." Tot v. United States, 319 U.S. 463, at 467-468, 63 S.Ct. 1241, at 1245, 87 L.Ed. 1519. The issues presented in the instant case require our consideration of only that portion of the statute relating to restaurants which serve food "a substantial portion" of which "has moved in commerce."
If Congress has the naked power to do what it has attempted in title II of this act, there is no facet of human behavior which it may not control by mere legislative ipse dixit that conduct "affect[s] commerce" when in fact it does not do so at all, and rights of the individual to liberty and property are in dire peril.
We conclude that title II of the Civil Rights Act of 1964, as applied to the business operated by these plaintiffs, was beyond the competence of Congress to enact and that its enforcement against plaintiffs under the circumstances of this case would be violative of the fifth amendment of the Constitution of the United States, in pertinent part reading: "No person shall be * * * deprived of * * *, liberty, or property, without due process of law; * * *." Accordingly, they are entitled to the relief for which they pray.
NOTES
[1]  Public Law 88-352; 78 Stat. 241.
[2]  Since Robert F. Kennedy tendered his resignation as Attorney General of the United States, which was accepted after submission of this case to the court and since Nicholas deB. Katzenbach has been appointed Acting Attorney General of the United States, the said Katzenbach is hereby substituted, in his official capacity, for the said Kennedy as a party defendant, as provided by Rule 25(d) (1) Fed. R.Civ.P.
[3]  1. Plaintiffs are partners operating a restaurant under the trade style "Ollie's Barbecue" at 902 Seventh Avenue South, in Birmingham.

2. The plaintiffs' family has operated such restaurant under the same name and at the same location since 1927.
3. Plaintiffs' restaurant specializes in barbecued meats and homemade pies; approximately 90 to 95 per cent of its sales consist of such items and nonalcoholic beverages.
4. Plaintiffs' restaurant, when filled to capacity, will seat approximately 220 persons; its trade is derived from local regular customers who are for the most part known to the plaintiffs; its trade is predominantly composed of white collar business people and family groups. Plaintiffs feature in their restaurant a wholesome atmosphere in which no profanity or consumption of alcoholic beverages is allowed. The restaurant is closed on Sunday. Plaintiffs have in the past declined service to persons who have been profane and have given the appearance of drinking alcoholic beverages.
5. Plaintiffs' restaurant is located in an area of Birmingham in which are located primarily residences occupied by Negroes and light industrial development; in the nearby vicinity are several Negro churches and schools attended by Negro children.
6. The restaurant is eleven blocks from the nearest interstate highway, a somewhat greater distance from the nearest railroad station and bus station and between six and eight miles from the nearest airport.
7. Plaintiffs seek no transient trade and do no advertising of any kind except for the maintenance of a sign on their own premises. To their knowledge plaintiffs serve no interstate travelers.
8. In the twelve months preceding the passage of the Civil Rights Act of 1964, plaintiffs purchased approximately $150,000 worth of food, all locally. Approximately 55 per cent of this was for meat and between 80 and 90 per cent of the meat purchases were from George A. Hormel & Company, at its Birmingham branch. Its purchases from Hormel for that period were shown to be $69,783. All of the meat purchased from Hormel was shipped to its Birmingham branch from outside the State of Alabama.
9. Plaintiffs employ 36 persons at their restaurant, approximately two-thirds of whom are Negro. Plaintiffs personally prepare food and serve customers. Plaintiffs and some of their employees would not voluntarily serve meals to Negroes.
10. Since July 2, 1964, plaintiffs have not complied with the Civil Rights Act of 1964; they have, in fact, on more than one occasion, refused service to Negroes on an equal basis with white customers and on such occasions plaintiffs have been in actual violation of the act.
11. Because of their location and the manner of conducting their business, plaintiffs would lose a substantial amount of business if forced to serve Negroes in their restaurant. From its beginning, plaintiffs' restaurant has served only white trade.
12. A substantial portion of the food served in plaintiffs' restaurant has moved in commerce and plaintiffs have, since July 2, been in violation of the Civil Rights Act of 1964.
[4]  Civil Action No. 64-443, Northern District of Alabama.
[5]  11 U.S.Code Cong. & Adm.News 1727-1891, 88th Cong., 2d Sess. (July 20, 1964).
[6]  V Cong.Rec. 4757, 4593-4598, 4643-4655, 4680-4681, 4833-4835, 4906, 5066-5072, 5091-5104; VI Cong.Rec. 5454-5458, 5539-5543, 5690-5693, 5770-5771, 5851-5855, 5865-5871, 5879-5889, 6003, 6212-6214, 6234-6240; VII Cong.Rec. 6307, 6334-6344, 7039-7041; VIII Cong.Rec. 7552-7558, 7677-7684, 7816-7825, 7837-7854, 7966-7967, 8029, 8092, 8371, 8805-8806; IX Cong.Rec. 8849 (1964).
[7]  Compare: Butler v. Perry, 240 U.S. 328, 36 S.Ct. 258, 60 L.Ed. 672 (1916); Brown Holding Co. v. Feldman, 256 U.S. 170, 41 S.Ct. 465, 65 L.Ed. 877 (1921); State v. Sprague, 200 A.2d 206 (New Hampshire Sup.Ct.1964); Scheiber, The Thirteenth Amendment and Freedom of Choice in Personal Service Occupations: A Reappraisal, 49 Cornell L.Q. 508 (1964).
[8]  Section 5 thereof reads as follows: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
[9]  The Federalist No. 45 (Madison).
[10]  The Federalist No. 22 (Hamilton).
[11]  Polish Nat. Alliance v. National Labor Relations Board, 322 U.S. 643, 650, 64 S.Ct. 1196, 88 L.Ed. 1509 (1944).
[12]  E.g. United States v. International Boxing Club, 348 U.S. 236, 75 S.Ct. 259, 99 L.Ed. 290 (1955); United States v. Shubert, 348 U.S. 222, 75 S.Ct. 277, 99 L.Ed. 279 (1955); Radovich v. National Football League, 352 U.S. 445, 455, 77 S.Ct. 390, 1 L.Ed.2d 456 (1957); United States v. Frankfort Distilleries, 324 U.S. 293, 65 S.Ct. 661, 89 L.Ed. 951 (1945).
[13]  United States v. Wrightwood Dairy Co., 315 U.S. 110, 62 S.Ct. 523, 86 L. Ed. 726 (1942); Bethlehem Steel Co. v. New York State Labor Relations Board, 330 U.S. 767, 67 S.Ct. 1026, 91 L.Ed. 1234 (1947); Santa Cruz Fruit Packing Co. v. N. L. R. B., 303 U.S. 453, 58 S.Ct. 656, 82 L.Ed. 954 (1938); National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615 (1937); Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126 (1938); National Labor Relations Board v. Fainblatt, 306 U.S. 601, 59 S.Ct. 668, 83 L. Ed. 1014 (1939); United States v. Darby, 312 U.S. 100, 657, 61 S.Ct. 451, 85 L.Ed. 609 (1941).
[14]  Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23 (1824); Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935); Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855 (1936); Welton v. Missouri, 91 U.S. 275, 23 L.Ed. 347 (1875); Bowman v. Chicago & N. W. Ry., 125 U.S. 465, 8 S.Ct. 689, 31 L.Ed. 700 (1888); Packer Corporation v. Utah, 285 U.S. 105, 52 S.Ct. 273, 76 L.Ed. 643 (1932); State of Florida v. United States, 282 U.S. 194, 51 S.Ct. 119, 75 L.Ed. 291 (1931); Yonkers v. United States, 320 U.S. 685, 64 S.Ct. 327, 88 L.Ed. 400 (1944); Palmer v. Massachusetts, 308 U.S. 79, 60 S.Ct. 34, 84 L.Ed. 93 (1939).
[15]  52 Stat. 446, 15 U.S.C.A. § 13c.
[16]  52 Stat. 1040, as amended, 21 U.S.C.A. §§ 301-392.
[17]  36 Stat. 825, as amended, 18 U.S.C.A. §§ 2421-2424.
[18]  64 Stat. 1134, 15 U.S.C.A. §§ 1171-1178.
[19]  52 Stat. 31, as amended, 7 U.S.C.A. §§ 1281-1407.
[20]  52 Stat. 1060, as amended, 29 U.S.C.A. §§ 201-219.
[21]  49 Stat. 449, as amended, 29 U.S.C.A. §§ 151-168.
[22]  That the National Labor Relations Act may not be analogized to the Civil Rights Act of 1964 and that the power of Congress is not plenary with respect to the regulation of activities not themselves interstate commerce is made crystal clear by Mr. Justice Black's concurring opinion in Polish Nat. Alliance v. National Labor Relations Board, 322 U.S. 643, 652, 64 S.Ct. 1196, 1201:

"The doctrine that Congress may provide for regulation of activities not themselves interstate commerce, but merely `affecting' such commerce, rests on the premise that in certain fact situations the federal government may find that regulation of purely local and intrastate commerce is `necessary and proper' to prevent injury to interstate commerce. * * * In applying this doctrine to particular situations this Court properly has been cautious, and has required clear findings before subjecting local business to paramount federal regulation. * * * It has insisted upon `suitable regard to the principle that whenever the federal power is exerted within what would otherwise be the domain of state power, the justification of the exercise of the federal power must clearly appear.' * * *"


819 So.2d 1070 (2002)
Charles Ray DUCK, Jr., Plaintiff-Appellee,
v.
Clifford Lee McCLURE and State Farm Insurance Company, Defendants-Appellants.
No. 36,045-CA.
Court of Appeal of Louisiana, Second Circuit.
May 8, 2002.
Kitchens Benton Kitchens & Newell, by Graydon K. Kitchens, III, Minden, for Defendant-Appellant Clifford L. McClure.
Jack W. Slaid, Minden, for Plaintiff-Appellee Charles Ray Duck, Jr.
Thomas A. Bordelon, Natchitoches, for Defendant-Appellee State Farm Fire and Casualty Co.
Before NORRIS, STEWART and GASKINS, JJ.
STEWART, J.
The defendant Clifford McClure ("McClure") appeals the trial court's finding of liability for damages arising from an *1071 altercation between McClure and the plaintiff, Charles Duck ("Duck"). For the reasons set forth herein, we affirm.

FACTS
These litigants initially came before this court as a part of our denial of the defendant's appeal of his conviction of aggravated battery for his actions during the altercation that gave rise to this civil action. For a more extensive factual background see State v. McClure, 34,880 (La.App. 2nd Cir.8/22/01), 793 So.2d 454.
The basic facts are that McClure was having a dispute with Tommy Gore ("Gore"), a party guest of his next door neighbor, Don Engel, about the noise they were making while partying on July 4, 1999. After Gore and McClure exchanged further words, Gore invited McClure to "take it to the streets" and headed for the road in front of McClure's and Engel's property. Charles Duck and DeWayne Harvill testified that they heard the argument and also headed toward the street. They stated that McClure went into his house, retrieved a gun and a stick, and approached the group of men. As Duck turned to tell the children, who were outside playing, to go into the house he was struck on the head with the stick by McClure. McClure was arrested and convicted of aggravated battery and placed on two years probation. Duck suffered $1561.00 in medical damages. Following a trial on the merits, McClure was found to be the aggressor and solely at fault for the injuries suffered by Duck. The medical damages were stipulated to at trial and the court awarded to Duck an additional $1500.00 for pain and suffering. This appeal followed.

DISCUSSION

Standard of Review
A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding that is manifestly erroneous or clearly wrong. Stobart v. State, 617 So.2d 880 (La.1993). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Furthermore, when factual findings are based on the credibility of witnesses, the fact finder's decision to credit a witness's testimony must be given "great deference" by the appellate court. Rosell v. ESCO, 549 So.2d 840 (La.1989). Thus, when there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review although the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell, supra.
On appeal McClure contends that he was not the aggressor and that there was no battery or intentional tort because Duck initiated the confrontation and that he merely acted in self defense. He also contends that the court failed to apply comparative negligence and find Duck proportionately at fault. However, we find McClure's arguments regarding these issues to be without merit.

Tort Liability
Tort liability is based on La. C.C. art. 2315 which provides, in pertinent part, that "every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." A battery is the intentional use of force or violence upon another. La. R.S. 14:33. Aggravated battery is a battery committed with a dangerous weapon. La. R.S. 14:34. A dangerous weapon includes any gas, liquid, or other substance or instrumentality which, in the manner used, is calculated or *1072 likely to produce death or great bodily harm. La. R.S. 14:2.
Nonetheless, Louisiana's aggressor doctrine precludes tort recovery where the plaintiff acts in such a way as to provoke a reasonable person to use physical force in fear or anticipation of further injury at the hand of the aggressor plaintiff, unless the person retaliating has used excessive force to repel the aggression. Norwood v. Van Veckhoven, 34,891 (La. App. 2nd Cir.6/22/01), 792 So.2d 836; Baugh v. Redmond, 565 So.2d 953 (La. App. 2nd Cir.1990). Moreover, when a person voluntarily participates in an altercation, he may not recover for any injuries incurred, unless force in excess of that necessary is used and its use is not reasonably anticipated. The use of unnecessary and unanticipated force vitiates the consent. Slayton v. McDonald, 29,257 (La. App. 2nd Cir.2/26/97), 690 So.2d 914; Baugh, supra.
The issues of which party was the aggressor and whether excessive force was used in repelling the attack are questions of fact that must be determined from the peculiar facts and circumstances of each case. Clark v. Burchard, 2000-2750 (La. App. 4th Cir.11/14/01), 802 So.2d 824 citing Sills v. Mid-South Sports, Inc., 550 So.2d 909 (La.App. 2nd Cir.1989). Under Article 2315, the proper standard to evaluate a defendant's action is whether the conduct was that generally required of a reasonable man under like circumstances. See La. Civ.Code art. 2315. Various factors relied upon by the courts to determine the reasonableness of the actions of the party being attacked are the character and reputation of the attacker, the belligerence of the attacker, a large difference in size and strength between the parties, an overt act by the attacker, threats of serious bodily harm, and the impossibility of a peaceful retreat. Slayton v. McDonald, supra.
In its reasons for judgment, the trial court determined that McClure was the aggressor and that he acted unreasonably during the altercation by striking an unarmed man half his size without any provocation. This determination is amply supported by the record. Accordingly, we find that McClure's assignments of error are without merit. Consequently, the trial court was correct in finding that McClure was 100% at fault for the injuries suffered by Duck.

CONCLUSION
For the reasons set forth above, the judgment is affirmed at appellant's costs.
AFFIRMED.


112 So.2d 855 (1959)
C.C. ALLEN and Walter Anderson. Petitioners,
v.
Virgil GAITHER, Respondent.
No. B-92.
District Court of Appeal of Florida. First District.
May 28, 1959.
Rehearing Denied June 29, 1959.
*856 Marks, Gray, Yates, Conroy & Gibbs, Jacksonville, for petitioners.
Williams & Owen, Tallahassee, for respondent.
MOODY, JAMES S., Associate Judge.
The petitioners herein and defendants below ask certiorari to an order of the Circuit Court for Baker County reinstating the respondent's cause of action previously dismissed for lack of prosecution under Section 45.19(1), Florida Statutes, F.S.A. This statute provides that after a cause has been dismissed it may be reinstated "by petition upon good cause shown to the court".
It appears that the respondent, hereinafter called the plaintiff, filed his complaint February 18, 1956, for personal injuries, to which petitioners, hereinafter called the defendants, filed their answer on March 19, 1956. The pertinent subsequent proceedings were as follows: orders were entered requiring the plaintiff to submit to physical examination, the last order being dated September 1, 1956; plaintiff, by letter dated October 9, 1956, requested the clerk of the circuit court to place the case on the trial docket and the last affirmative matter of record was the filing of a deposition on March 5, 1957; thereafter, on March 6, 1958, defendants filed their motion to dismiss for lack of prosecution, which motion was granted and the case dismissed by order dated March 12, 1958.
Within the required 30 day period plaintiff filed his petition to reinstate the cause, attaching various correspondence, all written prior to March 5, 1957, together with an affidavit by plaintiff stating in effect that he had been physically unable to take the physical examination ordered by the court due to his physical inability to travel from Tallahassee, his home, to Jacksonville, where the office of the examining physician was located. The affidavit stated further that "affiant is read for trial and has been ready for trial since June of 1956". Order granting said motion and reinstating the cause of action was entered November 21, 1958, reciting "that the ends of justice require that petition to reinstate this cause of action be granted on condition that the plaintiff, Virgil Gaither, submit himself to Dr. Hugh Haston, Jr. of Jacksonville, Florida, for a physical examination within thirty days * * *".
Plaintiff frankly admits no action was taken in the cause after March 5, 1957, but takes the position that by requesting the placing of the cause on the trial docket he had fulfilled his obligation under the statute and it was not incumbent upon him under the above statute to see that the case was actually set for trial within the one year period or request a continuance. This position does not constitute sufficient cause for reinstatement. Miller v. Hartley's, Inc., Fla.App. 1957, 97 So.2d 211; Atlantic Coastline Railroad v. Hill, Fla., 1955, 76 So.2d 861; Elmer A. Yelvington & Son, Inc. v. Sheridan, Fla., 1953, 65 So.2d 44; Railway Express Agency v. Hoagland, Fla., 1952, 62 So.2d 756.
*857 The primary purpose of the statute, as has been frequently stated, is to expedite litigation. In Gulf Appliance Distributors, Inc. v. Long, Fla., 1951, 53 So.2d 706, 707, the court quoted:
"As stated by the Louisiana court in Augusta Sugar Company Limited v. Haley, 163 La. 814, 112 So. 731, 732, in construing a similar statute: `We think that a step in the prosecution of a suit means something more than a mere passive effort to keep the suit on the docket of the court; it means some active measure taken by plaintiff, intended and calculated to hasten the suit to judgment. * * *'"
Petition for writ of certiorari is hereby granted and the chancellor is directed to set aside the order dated November 21, 1958, reinstating the cause and to dismiss the cause.
STURGIS, C.J., and WIGGINTON, J., concur.


                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT

                                      No. 18-6604

ROGER EARL COLEY,

                    Plaintiff - Appellant,

             v.

ERIC A. HOOKS; SGT. MR. LEWIS; OFFICER LOCKLEAR; MS. ALMOND,

                    Defendants - Appellees.

Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Joe L. Webster, Magistrate Judge. (1:18-cv-00361-TDS-JLW)

Submitted: August 23, 2018                                        Decided: August 28, 2018

Before DUNCAN and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Roger Earl Coley, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Roger Earl Coley seeks to appeal the magistrate judge’s order and

recommendation to deny in forma pauperis status and dismiss Coley’s action without

prejudice. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291

(2012), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2012); Fed. R.

Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46 (1949). The

order Coley seeks to appeal is neither a final order nor an appealable interlocutory or

collateral order. ∗ See 28 U.S.C. § 636(b)(1) (2012); Woods v. Dahlberg, 894 F.2d 187,

187 (6th Cir. 1990) (per curiam); Colo. Bldg. & Constr. Trades Council v. B.B. Andersen

Constr. Co., 879 F.2d 809, 811 (10th Cir. 1989). Accordingly, we dismiss the appeal for

lack of jurisdiction.   We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before this court and argument

would not aid the decisional process.

                                                                               DISMISSED

       ∗
         Although the district court dismissed the action without prejudice before we
considered this appeal, the doctrine of cumulative finality does not cure the jurisdictional
defect. Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 479 (4th Cir. 2015)
(recognizing that doctrine of cumulative finality applies only where order appealed could
have been certified under Fed. R. Civ. P. 54(b)); see In re Bryson, 406 F.3d 284, 288 (4th
Cir. 2005) (noting that “a premature notice of appeal from a clearly interlocutory
decision” cannot be saved under doctrine of cumulative finality (internal quotation marks
omitted)).

                                             2


34 N.J. 67 (1961)
167 A.2d 55
NATHANIEL P. JOY, PLAINTIFF-RESPONDENT,
v.
FLORENCE PIPE FOUNDRY CO., DEFENDANT-PETITIONER.
The Supreme Court of New Jersey.
January 16, 1961.
Messrs. Dimon, Haines & Bunting for the petitioner.
Messrs. Pellettieri & Rabstein for the respondent.
Denied.