Unpublished Disposition, 862 F.2d 875 (9th Cir. 1988)

MEMORANDUM^** 

Aldrich appeals from the denial of his 28 U.S.C. § 2255 petition to set aside a federal conviction for engaging in continuing criminal enterprise, a violation of 21 U.S.C. § 848 (1970). Under Section 848, a continuing criminal enterprise is defined as an undertaking of violations within the Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 et seq. ("The Act"), by one organizer with five or more followers which yields substantial income to the organizer.¹ 

Aldrich alleges that his conviction was illegal because the district court did not have jurisdiction over the subject matter of conviction, in that Section 848 violates the Commerce Clause (Article I, Section 8) of the Constitution and usurps the powers reserved to states under the Tenth Amendment. We have jurisdiction pursuant to 28 U.S.C. § 1291. The denial of a section 2255 petition is reviewed de novo. United States v. Quan, 789 F.2d 711, 713 (9th Cir.), cert. dismissed, 478 U.S. 1033 (1986). We affirm.

ANALYSIS

Aldrich contends that the district court did not have jurisdiction over his Section 848 prosecution because no proof of a specific connection between the prohibited activities and interstate commerce was required for conviction. Aldrich further contends that Section 848 violates the Commerce Clause of the Constitution because it regulates intrastate activities which do not affect interstate commerce.

The same arguments were made in Montes-Zarate, 552 F.2d 1330, 1331 (9th Cir. 1977), cert. denied, 435 U.S. 947 (1978), with respect to Section 841 of the Act. Section 841 addresses the manufacturing, distribution or dispensation of a controlled substance.

In Montes-Zarate, the court held that no proof of interstate nexus was required to establish jurisdiction over Section 841 and that the section was constitutional under the Commerce Clause. The court adopted the reasoning of the Fourth Circuit case, United States v. Atkinson, 513 F.2d 38, 40 (4th Cir. 1975), which stated:

Congressional findings on which the legislation rested disclosed that intrastate possession, distribution and sale of drugs such as heroin directly and injuriously effected the introduction of them into other states to the injury of the public health and welfare there. 21 U.S.C. §§ 801, 812. Thus, the statutory definition and proscription of transactions of 'controlled substances', 21 U.S.C. § 812(b), entirely within a State is altogether constitutional (citations omitted).

Montes-Zarate, 552 F.2d at 1331.

Atkinson involved a challenge to Section 812(b), which lists the schedules of controlled substances, not section 841, which was challenged in Montes-Zarate. However, we chose in Montes-Zarate not to distinguish between the two sections when applying the reasoning of Atkinson. A distinction between the two sections was unnecessary because both sections address the intrastate manufacture, possession or distribution of drugs, as activities found by Congress to directly and injuriously affect the commerce of other states. 21 U.S.C. § 801(3).

In United States v. Kinsey, 843 F.2d 383, 393 (9th Cir. 1988), we again, chose not to distinguish between the sections when we dismissed another challenge to Section 841. The court stated: " [t]he class of activities regulated under Title 21 U.S.C. Section 801 et. seq. is clearly within Congress' commerce power." Id.

We find the reasoning of Montes-Zarate, Kinsey, and Atkinson applicable to Section 848. Congress has found those activities to affect interstate commerce. "This court will certainly not substitute its judgment for that of Congress in such a matter unless the relation of the subject to interstate commerce and its effect upon it are clearly nonexistent." United States v. Rodriguez-Camacho, 468 F.2d 1220, 1221-22 (9th Cir. 1972) (citation omitted).

Aldrich also contends that Section 848 usurps the powers reserved to states under the Tenth Amendment. The Tenth Amendment does not operate upon the valid exercise of powers delegated to Congress by the Commerce Clause. United States v. Lopez, 459 F.2d 949, 951 (5th Cir. 1972), cert. denied, 409 U.S. 878 (1972) and United States v. Barrow, 363 F.2d 62, 65 (3d Cir. 1966) cert. denied, 385 U.S. 1001 (1967). The passage of section 848 was a valid exercise of those powers, therefore no violation of the Tenth Amendment has occurred. We find the district court had jurisdiction over the Section 848 prosecution and the judgment is

AFFIRMED.