* This order and judgment is not binding precedent, e xcept under the doctrines of

law of the case, res judicata, or collateral estopp el. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3

. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 14 1997 

## PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. IRAK CORONA, Defendant-Appellant. No. 96-2241 (D.C. No. CR 96-336-BB)

(N.M.)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, PORFILIO and MURPHY , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ause is therefore ordered submitted without oral argument. Irak Corona pled guilty to possession with intent t o distribute “a quantity of Amphetamine,” in violation of 21 U.S.C § 841(a)(1). Rec., vol. I, doc. 51. In the superseding indictment and the plea agreement, the government cited the sentencing provision governing Schedule III controlled substan ces, 21 U.S.C. § 841(b)(1)(D), and

### -2-

described amphetamine as a Schedule III controlled substance. This was error, however, as amphetamine is in fact a Schedule II co ntrolled substance. At the sentencing hearing held on September 24, 199 6, defense counsel objected to that part of the presentence report which descri bed amphetamine as a Schedule II controlled substance, and argued that the court was bound to sentence Mr. Corona in accordance with the superseding indictment’s descri ption of amphetamine as a Schedule III controlled substance. The government acknowled ged the erroneous description of amphetamine in the superseding indictment and offer ed to allow Mr. Corona to withdraw his guilty plea without objection. Mr. Co rona chose not to withdraw his plea, stating he would appeal should the court sentence h im pursuant to Schedule II. In sentencing Mr. Corona under Schedule II, the distri ct court recognized that amphetamine is a Schedule II stimulant under 21 C.F .R. § 1308.12 and held that it was obligated to follow the Code of Federal Regulations in effect at the time of sentencing. On appeal, Mr. Corona contends his sentence should be reversed because the government “stipulated” that amphetamine was a Sche dule III controlled substance and should be bound by its agreement for purposes of se ntencing. We disagree. Federal Rule of Criminal Procedure 7(c)(3) states:
Harmless Error . Error in the citation or its omission shall not be ground for dismissal of the indictment or information or f or reversal of the conviction if the error or omission did not misleadthe defendant to the defendant’s prejudice. Fed. R. Crim. P. 7(c)(3). We have previously held that the erroneous description of amphetamine as a Schedule III controlled substance is an “error” contemplated by Rule

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7(c)(3). “Such error, under the rule, is not groun d for reversal of a conviction on appeal unless the defendant was misled to his prejudice.” United States v. Kaiser , 599 F.2d 942, 943 (10th Cir. 1979). Although in this case, Mr. Corona is asking that hi s sentence , rather than his
conviction , be reversed due to the government’s error, the lo gic of Kaisernevertheless applies to errors in an indictment or plea agreement that affect sentencing. As long as Mr. Corona was not misled to his prejudice by the s uperseding indictment and plea agreement, the error in describing amphetamine as aSchedule III controlled substance was harmless. See United States v. Greenwood , 974 F.2d 1449, 1472 (5th Cir. 1992) (erroneous description of methamphetamine as Schedu le III substance did not dictate sentence where elements of relevant statutory offen se charged were adequately described in the indictment). Mr. Corona does not argue that he was misled, nor d o we find anything in the record to indicate that he was. Mr. Corona admits that the plea agreement he signed referred to possession with intent to distribute “aquantity of Amphetamine.” Amphetamine has been listed by the Code of Federal Regulations as a Schedule II controlled substance since 1971, and we have repeat edly held that such classification is proper. See United States v. Killion , 7 F.3d 927, 935 (10th Cir. 1993); United States v

. Lafoon , 978 F.2d 1183, 1184-85 (10th Cir. 1992); United S tates v. Sullivan , 967 F.2d 370, 372-73 (10th Cir. 1992). Mr. Corona’s claim t hat the government stipulated amphetamine is a Schedule III substance also fails. The plea agreement signed by Mr. Corona specifically states that “[s]entencing is pursuant to the Sentencing Reform Act

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of 1984, making the sentencing guidelines applicabl e” and that “[t]he United States has made, and will make, NO AGREEMENT pursuant to Rule 11(e)(1)(C), Fed. R. Crim. P., that a specific sentence is the appropriate dis position of this case.” The plea agreement contains a separate section headed “stipu lations” which refers only to the defendant’s affirmative acceptance of responsibility for his criminal conduct, entitling him to a reduction of three levels from the base of fense level as calculated under the sentencing guidelines. Moreover, inasmuch as Mr. C orona’s decision to plead guilty rested on his belief that amphetamine was a Schedul e III controlled substance, any resulting prejudice was cured by the government’s o ffer prior to sentencing to allow him to withdraw his plea. Because Mr. Corona was not prejudiced as a result o f the erroneous description of amphetamine in the superseding indictment and pl ea agreement as a Schedule III controlled substance, we AFFIRM the district court’s application of the sentencing guidelines.

ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge