United States of America, Plaintiff-appellee, v. Bobby Mack Alderson, Defendant-appellant, 947 F.2d 951 (9th Cir. 1991)

MEMORANDUM^** 

Bobby Mack Alderson appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion to vacate his sentence imposed following his guilty plea to manufacturing methamphetamine and being an ex-felon in possession of a handgun, in violation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 1202(a) (1).

Alderson contends that the district court erred in ruling that methamphetamine is a Schedule II, not a Schedule III, controlled substance. Methamphetamine was originally listed in Schedule III by Congress, and later moved to Schedule II by the Attorney General. Alderson argues that improper procedures were followed by the Attorney General.

The Ninth Circuit has repeatedly visited the issue of the status of methamphetamine and found it to be a Schedule II controlled substance. See United States v. Jones, 852 F.2d 1235 (9th Cir. 1988); United States v. Burnes, 816 F.2d 1354 (9th Cir. 1987). Most recently the Ninth Circuit stated, "It is no longer an open question whether methamphetamine has properly been designated a Schedule II controlled substance." United States v. Durham, 90-10022, slip op. 10447, 10453 (Aug. 7, 1991).

Accordingly, we find no merit to Alderson's argument that methamphetamine is a Schedule III drug. Because Alderson's ineffective assistance of counsel claim rests on the premise that metamphetamine is a Schedule III controlled substance, that argument fails. Alderson's allegation that his guilty plea was not voluntary and intelligent rests on the same premise. It, too, fails.

We affirm the district court's denial of Alderson's § 2255 motion.