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  • Andiarena v. United States, 7 F.3d 218, 1st Cir. (1993)

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    Oscar Andiarena appealed the denial of his third petition under 28 U.S.C. § 2255 to vacate his 1985 conviction for conspiracy to possess cocaine with intent to distribute. In his petition, he alleged that the district court lacked jurisdiction over the underlying criminal offense. The First Circuit affirmed the denial, finding that Andiarena's arguments that district courts lack jurisdiction under 21 U.S.C. § 846 and that Title 21 was never officially enacted into law were frivolous. The court noted that district courts have original jurisdiction over federal offenses under 18 U.S.C. § 3231 and that 21 U.S.C. § 846 was properly enacted into law in 1970.

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    Filed: 1993-09-24 Precedential Status: Non-Precedential Citations: 7 F.3d 218 Docket: 93-1167

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    Oscar Andiarena appealed the denial of his third petition under 28 U.S.C. § 2255 to vacate his 1985 conviction for conspiracy to possess cocaine with intent to distribute. In his petition, he alleged that the district court lacked jurisdiction over the underlying criminal offense. The First Circuit affirmed the denial, finding that Andiarena's arguments that district courts lack jurisdiction under 21 U.S.C. § 846 and that Title 21 was never officially enacted into law were frivolous. The court noted that district courts have original jurisdiction over federal offenses under 18 U.S.C. § 3231 and that 21 U.S.C. § 846 was properly enacted into law in 1970.

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    Andiarena v. United States, 7 F.3d 218, 1st Cir. (1993)

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    Oscar Andiarena appealed the denial of his third petition under 28 U.S.C. § 2255 to vacate his 1985 conviction for conspiracy to possess cocaine with intent to distribute. In his petition, he alleged that the district court lacked jurisdiction over the underlying criminal offense. The First Circuit affirmed the denial, finding that Andiarena's arguments that district courts lack jurisdiction under 21 U.S.C. § 846 and that Title 21 was never officially enacted into law were frivolous. The court noted that district courts have original jurisdiction over federal offenses under 18 U.S.C. § 3231 and that 21 U.S.C. § 846 was properly enacted into law in 1970.

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    of 2

    7 F.

    3d 218

    NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished


    opinions may be cited only in related cases.
    Oscar ANDIARENA, Petitioner, Appellant,
    v.
    UNITED STATES of America, Respondent, Appellee.
    No. 93-1167.

    United States Court of Appeals,


    First Circuit.
    September 23, 1993

    APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE


    DISTRICT OF MAINE
    Oscar Andiarena on brief pro se.
    Jay P. McCloskey, United States Attorney, and Michael M. DuBose,
    Assistant United States Attorney, on brief for appellee.
    D.Me.
    AFFIRMED.
    Before Breyer, Chief Judge, Selya and Boudin, Circuit Judges.
    Per Curiam.

    Oscar Andiarena was convicted in 1985 of conspiracy to possess cocaine with


    intent to distribute, in violation of 21 U.S.C. 846. See United States v.
    Andiarena, 823 F.2d 673 (1st Cir. 1987) (affirming conviction on direct
    appeal). He thereafter filed two petitions under 28 U.S.C. 2255 to vacate his
    conviction, each of which was denied. See Andiarena v. United States, 940
    F.2d 646 (1st Cir. 1991) (per curiam) (table) (affirming denial on merits);
    Andiarena v. United States, 967 F.2d 715 (1st Cir. 1992) (per curiam)
    (affirming denial as abuse of writ). Andiarena now appeals from the denial of
    his third 2255 petition, in which he alleged that the district court lacked

    jurisdiction over the underlying criminal offense. Because the district court
    disposed of the instant petition on the merits (rather than on abuse of the writ
    grounds), we shall do likewise.
    2

    Petitioner advances two arguments in this regard, both of which prove


    frivolous. He first contends that federal district courts are without jurisdiction
    to entertain prosecutions brought under 21 U.S.C. 846 because that statutory
    provision contains no such grant of jurisdiction. This argument ignores the fact
    that district courts have original jurisdiction over offenses against the United
    States under 18 U.S.C. 3231. Second, petitioner inventively suggests that
    Title 21 was never officially enacted into law. In support, he notes that Title 21
    has yet to be included in the ongoing effort to revise and codify the Code's
    various titles so as to make them official statements (rather than simply prima
    facie evidence) of the federal laws. See Preface to U.S.C. (1982). This argument
    ignores the fact that 21 U.S.C. 846 was enacted into law on October 27, 1970
    by Pub. L. No. 91-513, Tit. II, 406, 84 Stat. 1265. For these reasons, the
    district court was plainly justified in denying the petition on its face without a
    hearing. See, e.g., Shraiar v. United States, 736 F.2d 817, 818 (1st Cir. 1984)
    (per curiam).

    Affirmed.

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