Andiarena v. United States ( 1993 )

USCA1 Opinion

          September 23, 1993

                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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        No. 93-1167 

                                   OSCAR ANDIARENA,

                                Petitioner, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                Respondent, Appellee.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE



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

                                 Breyer, Chief Judge,
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                          Selya and Boudin, Circuit Judges.
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            Oscar Andiarena on brief pro se.
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            Jay P. McCloskey,  United States Attorney, and Michael M.  DuBose,
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        Assistant United States Attorney, on brief for appellee.


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                 Per Curiam.   Oscar Andiarena  was convicted in  1985 of
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            conspiracy to  possess cocaine with intent  to distribute, in

            violation  of  21  U.S.C.     846.    See  United  States  v.
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            Andiarena, 823 F.2d 673 (1st Cir. 1987) (affirming conviction
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            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
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            Cir. 1991) (per curiam) (table) (affirming denial on merits);

            Andiarena v. United States, 967 F.2d 715 (1st Cir. 1992) (per
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            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.

                 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
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            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,
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            e.g., Shraiar v. United  States, 736 F.2d 817, 818  (1st Cir.
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            1984) (per curiam). 

                 Affirmed.
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