United States v. Garibaldi-Lopez

MEMORANDUM ** Mario Garibaldi-Lopez appeals from the sentence imposed following his guilty-plea conviction for conspiracy to distribute and possess with intent to distribute, and attempted possession with intent to distribute, 50 grams or more of methamphetamine, in violation of 21 U.S.C. § 841 (a)(1) and (b)(1)(A) and 21 U.S.C. § 846 . We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm. The judicial fact-finding that occurred at Garibaldi-Lopez’s sentencing did not violate the Sixth Amendment because he was not sentenced pursuant to a mandatory guidelines scheme. See United States v. Booker, 543 U.S. 220, 245-46, 259-60 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005). His contention that ex post facto principles prohibit the application of an advisory scheme to his sentencing is foreclosed by United States v. Dupas, 419 F.3d 916, 919-21 (9th Cir.2005). Lastly, we reject Garibaldi-Lopez’s contention that the district court’s description of the offenses during the plea colloquy constituted a misstatement of the charges against him and led to an erroneous application of the sentencing guidelines. We decline to address new contentions raised for the first time in Garibaldi-Lopez’s reply brief. See United States v. Wright, 215 F.3d 1020 , 1030 n. 3 (9th Cir. 2000). Appellee’s motion to strike reply brief is therefore denied as moot. AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.