                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-1888
                                   ___________

United States of America,               *
                                        *
               Appellee,                *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Missouri.
John Berger,                            *
                                        *
               Appellant.               *
                                   ___________

                             Submitted: December 11, 2008
                                Filed: February 2, 2009
                                 ___________

Before MELLOY and BENTON, Circuit Judges, and MAGNUSON,1 District Judge.
                           ___________

BENTON, Circuit Judge.

       John Berger was charged with possession with intent to distribute 1,4
butanediol or BDO (Count I), distribution of cocaine (Count II), distribution of BDO
with the death of Tressa Gross resulting (Count III), and possession with intent to
distribute BDO with the death of Tressa Gross resulting (Count IV). In the district




      1
        The Honorable Paul A. Magnuson, Senior United States District Judge for the
District of Minnesota, sitting by designation.
 court,2 Berger pled guilty to Counts I and II and the lesser-included charges of Counts
III and IV, without the death-resulting clauses.

       Berger challenges his conviction for the three counts involving BDO, a
statutory analogue of gamma-hydroxybutyric acid (GHB). Having jurisdiction under
28 U.S.C. § 1291, this court affirms.

                                           I.

      This court reviews a district court’s factual findings for clear error and its legal
determinations de novo. Ryan v. United States, 534 F.3d 828, 831 (8th Cir. 2008).
This court may affirm the judgment of the district court on any basis supported by the
record. Moore v. Forrest City Sch. Dist., 524 F.3d 879, 885 (2008).

                                           A.

       Berger contends that GHB was not a controlled substance under federal law at
the time of the conduct charged in his indictment and therefore, the district court
lacked jurisdiction. The Farias-Reid Date Rape Drug Prohibition Act directed the
Attorney General to schedule GHB as a controlled substance:

      The Congress finds that the abuse of illicit gamma hydroxybutyric acid
      is an imminent hazard to the public safety. Accordingly, the Attorney
      General, notwithstanding sections 201(a), 201(b), 201(c), and 202 of the
      Controlled Substances Act, shall issue, not later than 60 days after the
      date of the enactment of this Act, a final order that schedules such drug
      (together with its salts, isomers, and salts of isomers) in the same

      2
       The Honorable Catherine D. Perry, United States Judge for the Eastern District
of Missouri.

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      schedule under section 202(c) of the Controlled Substances Act as would
      apply to a scheduling of a substance by the Attorney General under
      section 201(h)(1) of such Act (relating to imminent hazards to the public
      safety) . . . .3

Pub. L. No. 106-172, § 3(a)(1), 114 Stat. 7 (2000). Berger claims the Farais-Reid
Act authorized only temporary scheduling of GHB, which expired before the conduct
charged.

       Construing a statute, this court looks first to its plain meaning. United States
v. Howell, 531 F.3d 621, 622 (8th Cir. 2008). Berger asserts that the GHB scheduling
was temporary because the statute directs the Attorney General to schedule GHB “as
would apply to a scheduling of a substance” under section 811(h), the temporary
scheduling provision. However, this interpretation ignores the prior clause directing
the Attorney General to schedule GHB “in the same schedule” as would apply to a
scheduling of a substance under section 811(h), which is Schedule I. Also, the statute
directs scheduling in the same schedule “as would apply” to scheduling under section
811(h), indicating that scheduling under section 811(h) does not apply. The plain
language of the statute directs the Attorney General to bypass the usual scheduling
procedures of 21 U.S.C. §§ 811(a) - (c), and permanently schedule GHB as a
controlled substance. See United States v. Turcotte, 286 F. Supp. 2d 947, 952 (N. D.
Ill. 2003), aff’d on other grounds, 405 F.3d 515 (7th Cir. 2005), cert. denied, 53 U.S.
1089 (2006).




      3
        Sections 201(a), 201(b), 201(c), 201(h), and 202(c) of the Controlled
Substances Act are sections 811(a), 811(b), 811(c), 811(h), and 812(c) of Title 21 of
the United States Code, and contain procedures for scheduling controlled substances.


                                         -3-
      As a result, GHB was placed in Schedule I:

      This is a final rule issued by the Deputy Administrator of the Drug
      Enforcement Administration (DEA) placing gamma-hydroxybutyric acid
      (GHB) and its salts, isomers, and salts of isomers into Schedule I of the
      Controlled Substances Act (CSA) pursuant to Public Law 106-172.

65 Fed. Reg. 13,235 (March 13, 2000), codified at 21 C.F.R. pts. 1301 and 1308.

       Berger additionally claims that the DEA’s final rule was invalid because it did
not comply with the rulemaking procedures of 21 U.S.C. § 811(h)(1)(A). However,
as explained, the temporary scheduling procedures of section 811(h) do not apply to
the permanent scheduling directed by the Farais-Reid Act. The DEA’s final rule was
valid; the scheduling of GHB was still in effect at the time of the conduct charged in
Berger’s indictment.

                                          B.

       Berger also argues that the controlled-substance-analogue statute is
unconstitutionally vague. To defeat a vagueness challenge, a penal statute must pass
a two-part test: The statute must first provide adequate notice of the proscribed
conduct, and second, not lend itself to arbitrary enforcement. United States v.
Bamberg, 478 F.3d 934, 937 (8th Cir. 2007). Berger contends that the analogue
statute lends itself to arbitrary enforcement.

        A controlled-substance analogue is a substance “the chemical structure of which
is substantially similar to the chemical structure of a controlled substance in schedule
I or II” and which has a similar effect on the central nervous system or is represented
or intended to have a similar effect on the central nervous system. 21 U.S.C. §
802(32). Berger was convicted of crimes involving BDO, a GHB analogue. He

                                          -4-
claims that gamma-valerolactone (GVL) – a legal substance – also fits the definition
of a GHB analogue. Therefore, he concludes that since the statute is enforced with
respect to BDO, but not GVL, it lends itself to arbitrary enforcement.

        According to experts for both sides, GHB and BDO are both open compounds
that do not contain a methyl group. GVL is a closed compound that does contain a
methyl group. Therefore, while the chemical structure of BDO is substantially similar
to that of GHB, the chemical structure of GVL is not. Further, BDO actually
metabolizes into GHB in the human body, but GVL does not. On this record, GVL
is not a controlled-substance analogue of GHB under 21 U.S.C. § 802. Therefore, the
statute is not unconstitutionally vague.

                                         II.

      The judgment of the district court is affirmed.
                     ______________________________




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