United States v. Lopez-Marques , 135 F. App'x 149 ( 2005 )


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  •                                                                              F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    June 3, 2005
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                       No. 04-1072
    (D. Colorado)
    JAIME RODOLFO LOPEZ-                                (D.Ct. No. 03-CR-56-B)
    MARQUES,
    Defendant-Appellant.
    ORDER AND JUDGMENT *
    Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.(G). The case is
    therefore ordered submitted without oral argument.
    Jaime Lopez-Marques pled guilty to one count of possession with intent to
    *
    This order and judgment is not binding precedent except under the doctrines of
    law of the case, res judicata and collateral estoppel. The court generally disfavors the
    citation of orders and judgments; nevertheless, an order and judgment may be cited under
    the terms and conditions of 10th Cir. R. 36.3.
    distribute in excess of fifty grams of methamphetamine in violation of 
    21 U.S.C. §§ 841
    (a)(1) and (b)(1)(B). On appeal, Lopez-Marques’ counsel filed a brief
    pursuant to Anders v. California, 
    386 U.S. 738
     (1967), and moved for leave to
    withdraw. For the reasons set out below, we conclude the case is wholly
    frivolous, grant counsel’s motion to withdraw and dismiss the appeal.
    Anders holds that if counsel finds a case to be wholly frivolous after
    conscientious examination, he may so advise the court and request permission to
    withdraw. 
    Id. at 744
    . Counsel must submit to both the court and his client a brief
    referring to anything in the record arguably supportive of the appeal. 
    Id.
     The
    client may then raise any point he chooses, and the court thereafter must
    undertake a complete examination of all proceedings to determine whether the
    appeal is in fact frivolous. If it so finds, it may grant counsel’s request to
    withdraw and dismiss the appeal. 
    Id.
     Counsel has provided Lopez-Marques with
    a copy of his appellate brief and Lopez-Marques has filed his own brief.
    In his Anders brief, counsel identified no nonfrivolous appealable issues for
    our consideration. Lopez-Marques filed his own pro se 1 supplemental brief
    raising two issues on appeal: 1) methamphetamine was unconstitutionally moved
    in 1971 from a schedule III to a schedule II drug; and 2) L isomer
    1
    We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 
    318 F.3d 1183
    , 1187 (10th Cir. 2003).
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    methamphetamine is not a controlled substance. 2 In United States v. Sullivan, this
    Court held the procedure reclassifying amphetamine and methamphetamine was
    adequate and that amphetamine was properly classified as a Schedule II controlled
    substance. 
    967 F.2d 370
    , 373 (10th Cir. 1992). Lopez-Marquez provides no new
    basis for challenging that procedure and consequently, his claim is without merit.
    As to Lopez-Marques’ second argument, methamphetamine is clearly
    classified as a controlled substance. 
    21 C.F.R. § 1308.12
    (d); United States v.
    Youngblood, 
    949 F.2d 1065
    , 1066 (10th Cir. 1991). Lopez-Marques tries to
    distinguish between D and L isomer methamphetamine, arguing only D isomer
    methamphetamine is a controlled substance and that the government failed to
    prove that the methamphetamine in his possession was D isomer. The distinction
    between methamphetamine isomers is irrelevant because 
    21 C.F.R. § 1308.12
    (d)
    not only lists methamphetamine as a controlled substance but also “its salts,
    isomers, and salts of its isomers.” Courts in a variety of contexts have routinely
    rejected the necessity of proving particular isomer form. See United States v.
    Scott, 
    725 F.2d 43
    , 44-45 (4th Cir. 1984) (discussing “isomer strategy” in the
    context of cocaine). We also decline to do so.
    In sum, after a careful review of the record, we conclude the case is wholly
    2
    An “isomer” is “one of two or more compounds, radicals or ions that contain the
    same number of atoms of the same elements, but differ in structural arrangement and
    properties.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (10th ed. 1998).
    -3-
    frivolous.
    Appeal DISMISSED. Counsel is permitted to withdraw.
    Entered by the Court:
    Terrence L. O’Brien
    United States Circuit Judge
    -4-