                                                                             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          This order and judgment is not binding precedent except under the doctrines of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).

                                           -2-
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




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