United States v. Garcia

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment be, and it hereby is, AFFIRMED.

Defendant-appellant Diogenes Rosario, pro se, appeals from an October 27, 2003 judgment of the United States District Court for the Northern District of New York denying his two motions to amend his earlier motion for reconsideration of that court’s denial of his post-judgment motion to dismiss his indictment for lack of jurisdiction. While Rosario appears to challenge four district court orders, his notice of appeal is timely only as to the two orders entered on October 27, 2003, denying his two motions to amend his pri- or motion for reconsideration. See Fed.R.App. P. 4(b)(1). See also Nelson v. Walker, 121 F.3d 828, 832 n. 2 (2d Cir. 1997).

Rosario argues that the district court lacked jurisdiction to try and convict him because the statutes he was convicted under, 21 U.S.C. §§ 841 & 846, are unconstitutional. This Court has explicitly upheld the constitutionality of the Comprehensive Drug Abuse Prevention and Control Act of 1970, of which §§ 841 and 846 are a part. See United States v. Genao, 79 F.3d 1333, 1335-37 (2d Cir. 1996). The district court therefore clearly had jurisdiction to entertain an indictment that charged Rosario *294with violating §§ 841 and 846, and did not err in denying Rosario’s motions to amend his motion to dismiss for lack of jurisdiction.

For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.