United States v. Jimmie Kendall

Jimmie Kendall appeals a conviction of one count of manufacturing methamphetamine, a substance controlled under Schedule II, 21 U.S.C. § 812 , in violation of 21 U.S.C. §§ 841 (a)(1) and 841(b)(1)(C), one count of distributing methamphetamine in violation of the same sections, and one count of carrying a firearm in the course of a drug-trafficking crime in violation of 18 U.S.C. § 924 (c). Kendall maintains the government’s proof at trial varied from the charges in the indictment because the substance introduced into evidence, a powder form of methamphetamine, does not properly fall under Schedule II of 21 U.S.C. § 812 , which addresses only methamphetamine in its injectable liquid form, but falls instead under Schedule III, which includes substances containing methamphetamine "except in injectable liquid.”

The Attorney General, after proceedings required by 28 U.S.C. §§ 811 (a) and 812(b), may add substances to section 812 schedules or transfer substances between those schedules. 21 U.S.C. § 811 (a). Kendall contends the original rescheduling of all forms of methamphetamine to Schedule II, accomplished in 1971 by the Director of the Bureau of Narcotics and Dangerous Drugs…