Herman Bloemsma, Iii, Petitioner-appellant, v. United States of America, Respondent-appellee, 961 F.2d 216 (9th Cir. 1992)

MEMORANDUM^** 

Herman Bloemsma, a federal prisoner, appeals pro se the denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Bloemsma contends that he has been convicted and confined for actions which are not in violation of any criminal statute because methamphetamine is not a Schedule II controlled substance. First, Bloemsma contends that methamphetamine is not a controlled substance because 21 U.S.C. 811(g) (1) specifically excludes Vicks Inhaler and Rynal, which contain methamphetamine, from the schedule of controlled substances. We have recently rejected this contention. See United States v. Durham, 941 F.2d 886, 889-90 (9th Cir. 1991).

Next, Bloemsma contends that methamphetamine was improperly transferred from schedule III to Schedule II because the attorney general did not follow the congressionally mandated procedure under 21 U.S.C. § 811(a)-(c). This contention has also been rejected. See id. at 888-89; United States v. Kendall, 887 F.2d 240, 241 (9th Cir. 1989); accord United States v. Roark, 924 F.2d 1426, 1428 (8th Cir. 1991) (transfer of methamphetamine from Schedule III to Schedule II controlled substances was made through correct procedures and supported by necessary findings).

AFFIRMED.