September 23, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1167
OSCAR ANDIARENA,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Breyer, Chief Judge,
Selya and Boudin, Circuit Judges.
Oscar Andiarena on brief pro se.
Jay P. McCloskey, United States Attorney, and Michael M. DuBose,
Assistant United States Attorney, on brief for appellee.
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.
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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