* This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand collateral estoppel. 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 

### June 3, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.JAIME RODOLFO LOPEZMARQUES, Defendant-Appellant. No. 04-1072 (D. Colorado) (D.Ct. No. 03-CR-56-B)

ORDER AND JUDGMENT *

Before SEYMOUR , LUCERO , and O’BRIEN , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.(G). The case is therefore ordered submitted without oral argument. Jaime Lopez-Marques pled guilty to one count of pos session with intent to1 We construe pro sepleadings liberally. Ledbetter v. City of Topeka, Kan., 318

F.3d 1183, 1187 (10th Cir. 2003). -2- distribute in excess of fifty grams of methamphetam ine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). On appeal, Lopez-Marqu es’ counsel filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967), and moved for leave to withdraw. For the reasons set out below, we conclu de the case is wholly frivolous, grant counsel’s motion to withdraw and d ismiss the appeal. Anders holds that if counsel finds a case to be wholly fr ivolous after conscientious examination, he may so advise the cou rt and request permission to withdraw. Id . at 744. Counsel must submit to both the court an d his client a brief referring to anything in the record arguably supportive of the appeal. Id . The client may then raise any point he chooses, and the court thereafter must undertake a complete examination of all proceedings to determine whether the appeal is in fact frivolous. If it so finds, it may grant counsel’s request to withdraw and dismiss the appeal. Id . Counsel has provided Lopez-Marques with a copy of his appellate brief and Lopez-Marques has filed his own brief. In his Anders brief, counsel identified no nonfrivolous appealab le issues for our consideration. Lopez-Marques filed his own pro se 1 supplemental brief raising two issues on appeal: 1) methamphetamine wa s unconstitutionally moved in 1971 from a schedule III to a schedule II drug; and 2) L isomer2An “isomer” is “one of two or more compounds, radicals or ions that contain the

same number of atoms of the same elements, but differ in structural arrangement and properties.” MERRIAM -WEBSTER ’ S C OLLEGIATE D ICTIONARY (10th ed. 1998). -3- methamphetamine is not a controlled substance. 2 In United States v. Sullivan , this Court held the procedure reclassifying amphetamine and methamphetamine was adequate and that amphetamine was properly classifi ed as a Schedule II controlled substance. 967 F.2d 370, 373 (10th Cir. 1992). Lo pez-Marquez provides no new basis for challenging that procedure and consequent ly, his claim is without merit. As to Lopez-Marques’ second argument, methamphetami ne is clearly classified as a controlled substance. 21 C.F.R. § 1308.12(d); United States v. Youngblood, 949 F.2d 1065, 1066 (10th Cir. 1991). Lopez-Marq ues tries to distinguish between D and L isomer methamphetamine, arguing only D isomer methamphetamine is a controlled substance and that the government failed to prove that the methamphetamine in his possession wa s D isomer. The distinction between methamphetamine isomers is irrelevant becau se 21 C.F.R. § 1308.12(d) not only lists methamphetamine as a controlled subs tance but also “its salts, isomers, and salts of its isomers.” Courts in a va riety of contexts have routinely rejected the necessity of proving particular isomerform. See United States v. Scott , 725 F.2d 43, 44-45 (4th Cir. 1984) (discussing “i somer strategy” in the context of cocaine). We also decline to do so. In sum, after a careful review of the record, we co nclude the case is wholly-4-

frivolous. Appeal DISMISSED. Counsel is permitted to withdraw

. Entered by the Court: Terrence L. O’Brien United States Circuit Judge