1

The Honorable Rodney S. Webb, Chief Judge, United States District Court for

the District of North Dakota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-1770

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of North Dakota.

Jorge Luis Machucce Preciado, *

* [UNPUBLISHED]

Appellant. *

___________

 Submitted: October 25, 2002

 Filed: November 1, 2002

___________

Before BOWMAN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.

___________

PER CURIAM.

Jorge Luis Machucce Preciado pleaded guilty to one count of conspiring to

distribute and to possess with intent to distribute in excess of 500 grams of a mixture

and substance containing methamphetamine, in violation of 21 U.S.C. § 846 (2000);

to one count of distributing and possessing with intent to distribute in excess of 500

grams of a mixture and substance containing methamphetamine, in violation of 21

U.S.C. § 841(a)(1) (2000) and 18 U.S.C. § 2 (2000); and to a forfeiture count. The

District Court1

 sentenced Preciado to 150 months of imprisonment and five years of
-2-

supervised release, and it ordered forfeiture of any interest Preciado had in two

vehicles. On appeal, counsel moved to withdraw and filed a brief under Anders v.

California, 386 U.S. 738 (1967), arguing that the government breached the plea

agreement. Preciado filed a pro se supplemental brief arguing that he was not

informed of his right under the Vienna Convention to contact his consul and that the

Attorney General changed methamphetamine from a Schedule III to a Schedule II

controlled substance contrary to 21 U.S.C. § 812(c) (2000).

We conclude that the government’s reference at sentencing to the significance

of the drug quantity did not breach its agreement to recommend a sentence at the low

end of the guidelines range. The government recommended twice that Preciado be

sentenced at the low end, Preciado acknowledged in the plea agreement that the

government would apprise the court of relevant aggravating and mitigating

sentencing factors, and the court stated that it had been aware of the significance of

the drug quantity and that it was not basing its sentence on the government’s

comments. Cf. United States v. Has No Horses, 261 F.3d 744, 748-50 (8th Cir. 2001)

(government complied with plea agreement by making requisite sentencing

recommendation; government’s lack of enthusiasm in making recommendation does

not breach agreement), cert. denied, 122 S. Ct. 1114 (2002).

We reject Preciado’s remaining arguments. His guilty plea forecloses his

Vienna Convention argument, see United States v. Guzman-Landeros, 207 F.3d 1034,

1035 (8th Cir. 2000) (per curiam), and Congress has given the Attorney General

authority to transfer drugs from one schedule to another regardless of the drug’s

initial placement in section 812, see 21 U.S.C. §§ 811(a)(1), 812(c) (2000). Having

reviewed the record independently under Penson v. Ohio, 488 U.S. 75 (1988), we

have found no nonfrivolous issues.

Accordingly, we grant counsel’s motion to withdraw, and we affirm.
-3-

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.