United States of America, Plaintiff-appellee, v. Paul Terry Nichols, Defendant-appellant, 952 F.2d 1400 (9th Cir. 1992)

MEMORANDUM^** 

Paul Terry Nichols appeals the district court's denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. He was charged with numerous counts stemming from a conspiracy to manufacture, possess, and distribute methamphetamine, and he pleaded guilty to continuing criminal enterprise in violation of 21 U.S.C. § 848 and income tax evasion in violation of 26 U.S.C. § 7201. He contends that the indictment did not charge offenses against the laws of the United States because methamphetamine is not a Schedule II controlled substance. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

We recently rejected the contention that methamphetamine is not a controlled substance under 21 U.S.C. § 802(6) because 21 U.S.C. § 811(g) (1) and 21 C.F.R. § 1308.22 exclude Vicks Inhaler, which contains methamphetamine, from the schedules of controlled substances. United States v. Durham, 941 F.2d 886, 889-90 (9th Cir. 1991). Accordingly, the district court did not err by denying Nichols's motion.

AFFIRMED.