This order and judgment is not binding precedent except under the *

doctrines of law of the case, res judicata and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed.R.App.P.32.1 and 10th

Cir.R.32.1.

F I LED

United States Court of Appeals

Tenth Circuit

March 6, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SALVADOR DURAN,

Defendant - Appellant.

No. 06-4178

(D.C. Nos. 2:06-CV-21-PGC &

2:04-CR-396-PGC)

(District of Utah)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.

Salvador Duran pled guilty to one count of conspiracy to possess 50 grams

or more of methamphetamine with intent to distribute, 21 U.S.C. § 846; 21 U.S.C.

§ 841(a), (b)(1)(A); based in part on the fact that he was found with 225.7 grams

of the drug, Mr. Duran was sentenced to 87 months of imprisonment and 60

months of supervised release. Mr. Duran did not appeal his sentence. Later,

however, Mr. Duran did pursue a federal habeas action pursuant to 28 U.S.C.

§ 2255. In his petition, Mr. Duran argued, among other things, that the Supreme
- 2 -

Court’s decisions in Blakely v. Washington, 542 U.S. 296 (2004), and United

States v. Booker, 543 U.S. 220 (2005), should be applied to his sentence, and that

his sentence exceeded the statutory maximum because methamphetamine of the

sort he possessed (powder form) is a Schedule III drug, rather than a Schedule II

drug. According to Mr. Duran, had the District Court sentenced him for

possession of a Schedule III drug, the sentencing range under the Guidelines

would have been 46 to 57 months. 

The District Court denied the petition and Mr. Duran thereafter filed a

motion to reconsider arguing, for the first time, that he received ineffective

assistance of counsel during his initial criminal proceeding. The District Court

denied this motion as well, citing three grounds: (i) it had no ability under

Federal Rule of Civil Procedure 59(e) to reconsider its ruling on a Section 2255

petition; (ii) the new ineffective assistance claim was a second or successive

petition; and (iii) in any event, Duran raised the ineffective assistance claim after

the one-year statute of limitations associated with Section 2255 expired. The

District Court declined to issue a Certificate of Appealability (“COA”) on any of

the issues presented by Mr. Duran. 

Mr. Duran now seeks a COA from this Court pursuant to 28 U.S.C. § 2253. 

In his application to this Court, Mr. Duran makes a number of arguments, which,

as best we can ascertain, boil down to these: (i) the District Court abused its

discretion in sentencing him for possession of a Schedule II rather than a
- 3 -

Schedule III drug because methamphetamine, at least in powder form, should be

treated as a Schedule III drug; and (ii) the type of methamphetamine (powder

versus liquid), together with the quantity of drugs at issue, are matters that can

only be decided by a jury after Booker and Blakely. Mr. Duran does not seek to

appeal the District Court’s disposition of his argument regarding ineffective

assistance of counsel. 

We agree with the District Court that none of these issues merits the

issuance of a COA because Mr. Duran has not made a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). First, we find

unpersuasive Mr. Duran’s argument concerning the scheduling of powder

methamphetamine. While Congress initially placed most amphetamines in

Schedule III rather than Schedule II, in 21 U.S.C. § 812(c) Congress expressly

directed that its initial scheduling decisions may be amended “pursuant to section

811.” In turn, 21 U.S.C. § 811 provides that “the Attorney General may by rule

. . . add to such a schedule [established by Section 812] or transfer between such

schedules any drug or other substance” if he complies with certain requirements. 

21 U.S.C. § 811(a)(1). And, as it happens, methamphetamine, in all forms,

powder or otherwise, has been reclassified by the Attorney General as a Schedule

II drug pursuant to 21 C.F.R. § 1308.12(d) and Section 811. See, e.g., United

States v. Sullivan, 967 F.2d 370, 372-73 (10th Cir. 1992). Mr. Duran does not
 The District Court was thus apparently mistaken in its § 2255 Order when 1

it dismissed Mr. Duran’s motion on the ground that Booker cannot be

(continued...)

- 4 -

raise any challenge to the effectiveness or scope of the rule promulgated by the

Attorney General. 

Second, Mr. Duran argues that the type and quantity of methamphetamine

are issues that, after Booker and Blakely, had to be decided by a jury. Yet, as

noted above, all forms of methamphetamine have been properly classified as

Schedule II drugs, see 21 C.F.R. § 1308.12(d); accordingly, whether the type of

methamphetamine was powder or liquid is of no moment. See United States v.

Macedo, 406 F.3d 778, 785 (7th Cir. 2005) (“[W]e now find that the

reclassification of methamphetamine as a schedule II substance applies to all

forms of methamphetamine in accordance with 21 C.F.R. § 1308.12(d) despite the

statute’s distinction.”). Further, while Booker appears to apply to Mr. Duran’s

case, given that he was sentenced after it was decided, the clerk’s minutes

regarding Mr. Duran’s sentencing on January 24, 2005, direct one to “[s]ee record

for details regarding Booker.” The record reveals that, in the written order

regarding Mr. Duran’s sentence, the District Court expressly stated that it was

“exercising its discretion” and followed the Guidelines in imposing Mr. Duran’s

87-month sentence. Thus, to the extent Mr. Duran argues that Booker should

have been applied to his sentence, we find that it was applied by the District

Court. And to the extent Mr. Duran argues that Booker required a jury, as 1
(...continued) 1

retroactively applied.

- 5 -

opposed to a judge, to find the quantity of methamphetamine at issue, that

argument is squarely precluded by Booker and our precedent. See Booker, 543

U.S. at 233 (holding that “the selection of particular sentences in response to

differing sets of facts [under the Guidelines] would not implicate the Sixth

Amendment. We have never doubted the authority of a judge to exercise broad

discretion in imposing a sentence within a statutory range.”); United States v.

Hall, 473 F.3d 1295, 1312 (10th Cir. 2007) (rejecting defendant’s argument that

under Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely, and Booker, the

relevant quantity of drugs for sentencing is no more than the quantity the jury

found beyond a reasonable doubt: “Because the post-Booker Guidelines are

discretionary, a district court may continue to find facts, including drug quantity,

by a preponderance of the evidence.”).

For the foregoing reasons, we deny Mr. Duran’s application for a COA and

dismiss his appeal. So ordered.

ENTERED FOR THE COURT

Neil M. Gorsuch

Circuit Judge