Pena

MEMORANDUM **

Adrian Ayala Pena appeals the 108-month sentence imposed by the district court following his guilty plea conviction for conspiracy to distribute and distribution of 15 pounds of amphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we dismiss for lack of jurisdiction.

Pena’s guilty plea contained a waiver of the right to appeal any constitutional sentence within the statutory maximum. Pena now contends that the waiver is unenforceable because his 108-month sentence exceeds the applicable statutory maximum. 1 Specifically, Pena argues that amphetamine is a Schedule III drug, and therefore, subject to a 5 year statutory maximum under 21 U.S.C. § 841 (b)(1)(D).

This contention lacks merit because, pri- or to Pena’s offense, the Attorney General transferred amphetamine to Schedule II. See 21 U.S.C. § 811 (authorizing the Attorney General to transfer drugs between schedules); 21 C.F.R. § 1808.12 (transferring amphetamine from Schedule III to Schedule II). Furthermore, although the indictment to which Pena pleaded guilty misidentified amphetamine as a Schedule III drug, any error was harmless. See United…