The Ninth Circuit Court of Appeals today released an amended order in USA v. KIM, No. 05-50112, a criminal appeal. The panel consisted of M. Margaret McKeown and Marsha S. Berzon, Circuit Judges, and Samuel P. King, Senior Judge.
BERZON, Circuit Judge:
Pseudoephedrine, a “listed chemical” under a federal drug statute, 21 U.S.C. Â§ 802(33) & (34)(K), is an ingredient in many over-the-counter cold medications. It can also be used to manufacture methamphetamine, a controlled substance under 21 U.S.C. Â§ 812. Both the United States and California have statutes prohibiting over-the-counter sales of drugs containing pseudoephedrine in certain instances. See 21 U.S.C. Â§ 841(c)(2); CAL. HEALTH & SAFETY CODE Â§ 11100(a)(17) & (e)(6). This case concerns the conviction of the proprietor of a small pharmacy for selling cold remedies containing pseudoephedrine. Jae Gab Kim was convicted of violating 21 . . .
The opinion filed on April 10, 2006, is amended as follows: On slip opinion page 3929, line 9, beginning with “Overthe-counter sales . . .” and ending line 12 with “from `regulated transactions.’ ” delete and replace with the following: Over-the-counter sales of pseudoephedrine that are not “ordinary,” however, may be regulated transactions, because they are not necessarily included in the exemption from regulated transactions. On slip opinion page 3929, line 12, after “exemption from `regulated transactions.’ ” insert the following footnote: The definition of “regulated transaction” generally allows the “Attorney General [to] establish[ ] a threshold amount for a specific listed chemical.” Â§ 802(39)(A). Section 802(39)(A)(iv)(II) provided at the time of Kim’s offense “the threshold for any sale of products containing pseudoephedrine . . . products by retail distributors or by distributors required to submit reports by section 830(b)(3) of this title shall be 24 grams of pseudoephedrine . . . in a single transaction.” At the time of the relevant transactions in this case, the Attorney General had not established single transaction thresholds for retail sales of pseudoephedrine, but he has done so since then. Compare 21 C.F.R. 1310.04(f) (2000) with 21 C.F.R. 1310.04(f) (2006). The details of the quantity or quality of pseudoephedrine that must be recorded and reported are not dispositive in this case and the statute has been amended recently, see infra note 8, so we do not address the recording and reporting requirements further. . . .