United States of America, Plaintiff-appellee, v. Wilton H. Jones, Defendant-appellant, 977 F.2d 593 (9th Cir. 1992)

MEMORANDUM^** 

Ex-federal prisoner¹  Wilton H. Jones appeals pro se the district court's order denying his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. After a plea of nolo contendere, Jones was convicted of misbranding certain drugs, in violation of the Federal Food, Drug, and Cosmetic Act ("FDCA"), 21 U.S.C. § 331(k). We review de novo, Doganiere v. United States, 914 F.2d 165, 167 (9th Cir. 1990), cert. denied, 111 S. Ct. 1398 (1991), and we affirm.

A defendant who enters a voluntary and intelligent plea upon advice of competent counsel may not collaterally attack the plea based on alleged defects in the indictment. United States v. Mathews, 833 F.2d 161, 163-64 (9th Cir. 1987). Moreover, a guilty plea establishes all factual allegations in the indictment. Id. A plea of nolo contendere admits every essential element of the offense that is well pleaded in the charge and is tantamount to an admission of guilt. Lott v. United States, 367 U.S. 421, 426 (1961); Tseung Chu v. Cornell, 247 F.2d 929, 938 (9th Cir.), cert. denied, 355 U.S. 892 (1957).

Jones contends that the superseding information was defective because it omits reference to 21 U.S.C. § 352, the section of the FDCA which specifies that failure to label is a method of misbranding within the meaning of the 21 U.S.C. § 331(k). This contention lacks merit. Moreover, Jones cannot attack collaterally the validity of the plea based on alleged defects in the information. See Lott, 367 U.S. at 426; Mathews, 833 F.2d at 163-64. Accordingly, the district court did not err by denying Jones's section 2255 habeas petition.

AFFIRMED.