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5 F3d 537 Long v. United States of America

Steven Brian LONG, Petitioner-Appellant,
v.
UNITED STATES OF AMERICA, Respondent-Appellee.

No. 92-35556.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 23, 1993.*
Decided Sept. 2, 1993.

5 F.3d 537
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: PREGERSON, BRUNETTI, and RYMER, Circuit Judges.

1

MEMORANDUM**

2

Steven B. Long, a federal prisoner, appeals pro se the district court's order dismissing his 28 U.S.C. Sec. 2255 motion to vacate his sentence imposed pursuant to a guilty plea, for importing a listed precursor chemical (phenylacetic acid), in violation of 21 U.S.C. Sec. 960(d)(2). We have jurisdiction under 28 U.S.C. Sec. 2255. We review de novo, United States v. Angelone, 894 F.2d 1129, 1130 (9th Cir.1990), and affirm.

3

Long argues that phenylacetic acid was added unlawfully by the Attorney General to the list of precursor chemicals in 21 U.S.C. 811(e). This argument is frivolous.

4

21 U.S.C. Sec. 811(e) sets forth the criteria for the Attorney General to add or subtract items from one of the five schedules set forth in 21 U.S.C. Sec. 812. See 21 U.S.C. Secs. 811(e), 812. Phenylacetic acid, however, was not added to the schedules set forth in Sec. 812. Thus, Long's reliance on Sec. 811(e) is misplaced.

5

Moreover, Long was properly convicted under 21 U.S.C. Sec. 960(d)(2), which prohibits the knowing or intentional importation of a listed chemical for use in the manufacture of a controlled substance. A "listed chemical" means "any listed precursor chemical or listed essential chemical." 21 U.S.C. Sec. 802(33). Phenylacetic acid is set forth as a "listed precursor chemical." 21 U.S.C. Sec. 802(34)(H).1 Accordingly, the district court properly dismissed Long's Sec. 2255 motion.

6

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

21 U.S.C. Sec. 802(34) provides in pertinent part: The term "listed precursor chemical" means a chemical specified by the Attorney General as a chemical that is used in the manufacture of a controlled substance in violation of this title and is critical to the creation of controlled substances, and such term includes the following: ... (H) Phenylacetic acid