                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               December 19, 2007
                                      PUBLISH                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                    UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,
          v.                                            No. 07-3072
 JOSEPH L. SHURTZ,

               Defendant-Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF KANSAS
                     (D.C. NO. 06-CR-20043-3-JWL)


Submitted on the briefs: *

James T. George, Lawrence, Kansas, for Defendant-Appellant.

Eric F. Melgren, United States Attorney, and Terra D. Morehead, Assistant
United States Attorney, Kansas City, Kansas, for Plaintiff-Appellee.


Before BRISCOE, EBEL, and McCONNELL, Circuit Judges.


McCONNELL, Circuit Judge.



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f). The case is therefore submitted without
oral argument.
      Defendant Joseph L. Shurtz appeals his conviction for conspiracy to

distribute methamphetamine, two counts of distribution of methamphetamine,

possession with intent to distribute methamphetamine, and possession of a firearm

in furtherance of a drug trafficking crime. Mr. Shurtz argues that he is entitled to

acquittal on all counts because the government failed to prove that the

methamphetamine in question was a controlled substance under 21 C.F.R. §

1308.12. Because we conclude that 21 C.F.R §1308.12(d) establishes that

methamphetamine is a controlled substance and imposes no requirement on the

government to prove that the quantity involved would have a stimulant effect on

the central nervous system, we affirm the district court decision.

                                I. BACKGROUND

      Mr. Shurtz was convicted on December 1, 2006 and was later sentenced to

196 months of imprisonment. He was arrested as a result of three controlled drug

purchases involving a confidential informant. Following the third controlled buy,

Mr. Shurtz and his passenger, James Watterson, were stopped by police. Mr.

Watterson ran from the vehicle with a cooler containing pills, two firearms, and

drug paraphernalia. At trial, Mr. Watterson testified that when he told Mr. Shurtz

that he was going to run if they were pulled over, Mr. Shurtz handed him the

cooler and told him to take it with him. Two chemists testified at trial that the

pills in the cooler were methamphetamine.


                                         -2-
      Mr. Shurtz appeals his convictions and argues that he is entitled to acquittal

on all counts because the government failed to prove that the quantity of

methamphetamine involved in this matter would have a stimulant effect on the

central nervous system. Mr. Shurtz asserts that the substances listed under 21

C.F.R. § 1308.12(d) are not controlled substances unless they are possessed or

distributed in sufficient quantity to have a stimulant effect on the central nervous

system. The Tenth Circuit has never explicitly addressed this issue; however, four

other circuits have held that language similar to that used in 21 C.F.R. §

1308.12(d) did not require the prosecution to prove that the substances involved

were present in quantities sufficient to cause an effect on the central nervous

system.

                                 II. DISCUSSION

      The Controlled Substances Act, 21 U.S.C. § 812, divides controlled

substances into five schedules based on factors such as the degree of abuse

potential, the existence of accepted medical uses, and the likelihood that abuse

may lead to dependance. 21 U.S.C. § 812. Congress created the initial schedules

and authorized the Attorney General to update them by adding or removing

substances from the lists and by moving substances from one schedule to another.

21 U.S.C. § 811. Schedule II, as adjusted by the Attorney General, appears in

21 C.F.R. §1308.12. It includes methamphetamine.




                                         -3-
       The Defendant-Appellant argues that 21 C.F.R. § 1308.12 requires the

government in every case to prove to the jury that the methamphetamine

possessed or distributed by the defendant would have a stimulant effect on the

central nervous system. Because the jury was not instructed to decide whether the

quantity of methamphetamine involved in this case would have such an effect, he

argues that he was entitled to a judgment of acquittal. In support of this

contention, he relies on the text of 21 C.F.R. § 1308.12, a decision of the Superior

Court of Pennsylvania interpreting a similar state statute, and the regulatory

history. We find Mr. Shurtz’s arguments unpersuasive and affirm the judgment of

the district court.

                                            A.

       Mr. Shurtz asserts that on its face the text of the regulation establishes that

the prosecution must prove that the stimulant in question was possessed or

distributed in sufficient quantity to have a stimulant effect on the central nervous

system. 21 C.F.R. § 1308.12(d) lists methamphetamine as follows:

                                        .    .    .

       (d) Stimulants. Unless specifically excepted or unless listed in another
       schedule, any material, compound, mixture, or preparation which contains
       any quantity of the following substances having a stimulant effect on the
       central nervous system:


              (2)     Methamphetamine, its salts, isomers, and salts
                      of its isomers ....


                                            -4-
The list of controlled substances in 21 C.F.R. § 1308.12(d) comprises, in addition

to methamphetamine: amphetamine, phenmetrazine, methylphenidate, and

lisdexamfetamine, together with their salts, isomers, and salts of their isomers.

      The question is whether the phrase “having a stimulant effect on the central

nervous system,” is descriptive or limiting. Mr. Shurtz points out that certain

other substances listed in 21 C.F.R. § 1308, such as opiates, cocoa leaves, and

poppy straw, lack such descriptive or limiting phrases. He suggests that in order

to give legal effect to all the words of the regulation, See Stickley v. State Farm

Mut. Auto. Ins. Co.,___ F.3d. ___, No. 05-1553, 2007 WL 2938380, at *5 (10th

Cir. 2007) (holding that a statute should, where possible, be construed according

to its plain meaning and, as a whole, giving meaning to all its parts), we must

interpret the phrase “having a stimulant effect on the central nervous system” as

limiting the provision to cases where methamphetamine appears in a quantity or

concentration proven to have the prohibited effect.

      We disagree. 21 C.F.R. § 1308.12 is a list of those drugs that Congress and

the Attorney General have determined to be controlled substances and “where

Congress intended the quantity of a substance to be dispositive, it indicated so

unequivocally.” United States v. Picklesimer, 585 F.2d 1199, 1203 (3rd Cir.

1978). It would violate both congressional intent and long-standing practice for

us to infer quantity limitations where no such limitations are affirmatively stated.




                                          -5-
      This straightforward interpretation of the provision makes sense of the

language. Although the linguistic conventions of the regulation are not entirely

consistent, it appears that phrases based on the effect of the substance are

included in the legal description when the category is denominated by a term

based on its effect on users—for example, “stimulant” or “depressant”—and not

when the category is denominated by a term based on the chemical or biological

composition of the substance—for example, “opiate” or “cocoa leaves.” There is

no reason to read into that linguistic convention a legal requirement for additional

proof of quantity or effect in a particular case. Rather, the descriptive phrase

serves the purpose of aiding the Attorney General in classifying emerging drugs.

Because stimulants and depressants may appear in new chemical forms, language

based on stimulant or depressant effect enables the Attorney General to include

those new drugs within the appropriate schedule based on general

pharmacological evidence regarding those effects.

      Every Court of Appeals to confront this question has reached the same

conclusion. See United States v. Durham, 941 F.2d 886, 890–91 (9th Cir. 1991)

(holding that the language was intended as guidance for the Attorney General);

Picklesimer, 585 F.2d at 1203 (holding that similar language was merely a

description of the listed drugs); United States v. White, 560 F.2d 787, 789 (7th

Cir. 1977) (holding that C.F.R. § 1308.12(d) is a list of drugs that congress has

determined to have a stimulant effect on the central nervous system); United

                                         -6-
States v. Nickles, 509 F.2d 810 (5th Cir. 1975) (holding that similar language

evidences a congressional determination of the actual depressant effect of the

listed substances). These decisions date back over thirty years, and Congress has

not questioned the interpretation. In light of the unanimity of federal court

interpretation, we give little weight to Mr. Shurtz’s favored authority, a decision

of the Superior Court of Pennsylvania, Commonwealth v. Teada, 344 A.2d 682

(Pa. Super. Ct. 1975), which interpreted similar language in a state statute. See

Picklesimer, 585 F.2d at 1202 (declining to apply the reasoning of Teada to 21

C.F.R. § 1308.12(d)).

      The Defendant further argues that his interpretation of 21 C.F.R. § 1308.12

is supported by the prior placement of methamphetamine in Schedule III of 21

U.S.C. § 812(c). Schedule III contained the same language as is currently used in

21 C.F.R § 1308.12 with the exception that, rather than simply listing

“Methamphetamine, its salts, isomers, and salts of its isomers,” as is done under

21 C.F.R § 1308.12(d)(2), Section 812 stated: “Any substance (except an

injectable liquid) which contains any quantity of methamphetamine, including its

salts, isomers, and salts of isomers” (emphasis added). When the Attorney

General moved methamphetamine from Schedule III to Schedule II, the language

proscribing “any quantity of methamphetamine” was dropped. Mr. Shurtz

suggests that when language is deleted from, or added to, an existing statute,

courts should construe the statute so that the additions or deletions have meaning.

                                         -7-
He contends that if the current version of 21 C.F.R. § 1308.12 were to provide

that any quantity of methamphetamine is a controlled substance regardless of the

particular quantity’s stimulant effect on the central nervous system, the deletion

of “any quantity of methamphetamine” would become meaningless.

      We decline to adopt the Defendant’s explanation for the language

differences between 21 C.F.R. § 1308.12 and 21 U.S.C. § 812. The more

plausible explanation for the deletion of “any quantity of methamphetamine” is

that the language was redundant. In some cases, quantities or concentrations of

the relevant substances determine their schedule. For example, depending on

their quantities and concentrations, dihydrocodeine and codeine can be Schedule

III drugs or Schedule V drugs. 21 C.F.R. § 1308.13; 21 C.F.R. § 1308.15.

Indications of quantity or effect are therefore necessary to determine in any

particular case which schedule is applicable. The listings in Schedule II, by

contrast, do not depend on drug quantity or concentration. It would therefore

have been redundant for the Attorney General to import the “contains any

quantity” language for methamphetamine when it was shifted to Schedule II.

      We therefore conclude, based on the language of the provision and long-

standing precedent interpreting it, that the substances enumerated under 21 C.F.R.

§ 1308.12(d) are prohibited without regard to their quantity or concentration.

Accordingly, the government did not need to offer proof at trial that the quantity




                                         -8-
of methamphetamine possessed or distributed by the defendant would have a

stimulant effect on the central nervous system.

                                III. CONCLUSION

      The judgment of the United States District Court for the District of Kansas

is AFFIRMED.




                                        -9-
