United States v. Jorge Luis Preciado ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-1770
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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* [UNPUBLISHED]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. *
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Submitted: October 25, 2002
Filed: November 1, 2002
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Before BOWMAN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.
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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
1
The Honorable Rodney S. Webb, Chief Judge, United States District Court for
the District of North Dakota.
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.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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