United States of America, Plaintiff-appellee, v. Darryl Everett Ward, Defendant-appellant, 117 F.3d 1427 (9th Cir. 1997)

MEMORANDUM^* 

Federal prisoner Darryl Ward appeals pro se from the district court's denial of his 28 U.S.C. § 2255 motion to vacate his guilty plea conviction and sentence for conspiracy to manufacture, possession with intent to distribute, and distribution of marijuana, in violation of 21 U.S.C. § 841(a) (1). We affirm.

Ward contends that the district court erred by denying his section 2255 motion because the federal government lacked jurisdiction to prosecute him for intrastate drug activity which did not affect interstate commerce. Ward's argument is foreclosed by our decision in United States v. Tisor, 96 F.3d 370 (9th Cir. 1996) (holding that Congress has the authority to criminalize intrastate drug activity under the Controlled Substances Act because such activity affects interstate commerce). Moreover, we note that at Ward's change of plea hearing, Ward admitted that the charged conspiracy involved receiving marijuana from Mexico and the Southwestern United States.

We reject Ward's argument that the district court erroneously construed his 28 U.S.C. § 2241 petition as one brought pursuant to 28 U.S.C. § 2255. See Shabazz v. Carroll, 814 F.2d 1321, 1324 (9th Cir. 1987), amended on other grounds, 833 F.2d 149 (9th Cir. 1987) (holding that section 2255 is in practice the exclusive remedy by which a federal prisoner may collaterally attack the legality of his conviction and sentence).

AFFIRMED.