United States v. Mario Garibaldi-Lopez

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 25 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 21-10258
21-10259
Plaintiff-Appellee,
D.C. Nos. 1:03-cr-00111-JAO-1
v. 1:19-cr-00092-JAO-1
MARIO GARIBALDI-LOPEZ, AKA Mario
Garibaldi, AKA Pancho, AKA Alberto MEMORANDUM*
Torres Alvarado,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Hawaii
Jill A. Otake, District Judge, Presiding
Submitted January 18, 2023**
Before: GRABER, PAEZ, and NGUYEN, Circuit Judges.
In these consolidated appeals, Mario Garibaldi-Lopez appeals the district
court’s revocation of supervised release, as well as the imposition of two special
conditions of supervised release following his conviction for several new criminal
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
offenses. We have jurisdiction under 28 U.S.C § 1291. We affirm in Appeal No.
21-10258, and we vacate the challenged conditions and remand in Appeal No. 21-
10259.
In Appeal No. 21-10258, Garibaldi-Lopez does not make any arguments
concerning the district court’s decision to revoke supervised release or the sentence
imposed upon revocation. Accordingly, any challenge to the revocation judgment
is waived, see United States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005), and we
affirm that judgment.
In Appeal No. 21-10259, Garibaldi-Lopez challenges two supervised release
conditions, arguing that they impermissibly delegate judicial functions to the
probation officer. After the district court entered judgment, we struck down the
precise conditions challenged by Garibaldi-Lopez, holding that the defendant’s
challenge to those conditions was not barred by the appeal waiver and that the
conditions impermissibly delegated to the probation officer the authority to
determine the nature and extent of the defendant’s punishment. See United States
v. Nishida, 53 F.4th 1144, 1149, 1151-55 (9th Cir. 2022). Accordingly, we vacate
special conditions one and four and remand for the district court to clarify the
scope of authority delegated to the probation officer consistent with Nishida.
Appeal No. 21-10258: AFFIRMED.
Appeal No. 21-10259: VACATED in part and REMANDED.
2 21-10258 & 21-10259