                             NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                          FILED
                             FOR THE NINTH CIRCUIT                           OCT 02 2012

                                                                        MOLLY C. DWYER, CLERK
                                                                          U .S. C O U R T OF APPE ALS

UNITED STATES OF AMERICA,                        No. 09-17007

              Plaintiff - Appellee,              D.C. Nos.     1:08-cv-00401-AWI
                                                               1:06-cr-00315-AWI
  v.

EFRAIN SOTO,                                     MEMORANDUM *

              Defendant - Appellant.



                  Appeal from the United States District Court
                      for the Eastern District of California
                 Anthony W. Ishii, Chief District Judge, Presiding

                     Argued and Submitted September 11, 2012
                             San Francisco, California

Before: WALLACE, THOMAS, and BERZON, Circuit Judges.

       Efrain Soto appeals the dismissal of his 28 U.S.C. § 2255 motion by the

district court. We affirm.

       We assume for purposes of this appeal, without deciding, that Soto’s waiver

in his plea agreement of “his right to challenge his conviction, sentence or the



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
manner in which it was determined in any post-conviction attack, including but not

limited to a motion brought under Title 28, United States Code, Sections 2241 or

2255” did not preclude Soto from raising his claim of ineffective assistance of

counsel (“IAC”) at sentencing.1

      1.     Soto contends that he was accorded IAC when his lawyer failed to

challenge the firearm enhancement, and also that effective counsel would have

moved at sentencing to withdraw the plea because the firearm enhancement was

not mentioned in the plea agreement.

      His lawyer did to a degree challenge the firearm enhancement. Moreover,

even if Soto’s lawyer had more adequately challenged the firearm enhancement,

Soto suffered no prejudice. To impose the enhancement, the district court needed

to find by a preponderance of the evidence only that it was not “clearly improbable

that the weapon was connected with the [drug] offense.” U.S.S.G. § 2D1.1, cmt.

n.3 (2012); see U.S. v. Burnett, 16 F.3d 358, 361 (9th Cir. 1994). Here, the basis

for the firearm enhancement was a shotgun found in the bedroom closet in Soto’s

house, near the large quantity of methamphetamine in the bedroom. A § 2D1.1

enhancement is justified where a weapon is located “in close proximity” to the

illegal drugs. U.S. v. Gillock, 886 F.2d 220, 223 (9th Cir. 1989) (per curiam).

      1
       Soto does not contend on appeal that his plea, including the waiver, was
not knowing and voluntary because of IAC, so we do not reach that question.
There is therefore no reasonable possibility that a challenge to the firearm

enhancement could have succeeded. See Strickland v. Washington, 466 U.S. 668,

694 (1984).

      For the same reasons, Soto did not suffer IAC when his lawyer failed to

pursue safety-valve sentencing. With the firearm enhancement, Soto was ineligible

for safety-valve sentencing. See U.S. v. Mejia-Pimental, 477 F.3d 1100, 1104 (9th

Cir. 2007) (safety-valve sentencing requires, inter alia, a finding that “the

defendant did not [...] possess a firearm or other dangerous weapon [...] in

connection with the offense”) (quoting 18 U.S.C. § 3553(f)).

      Finally, there is no reasonable likelihood that any motion to withdraw the

plea because of inadequate notice of the firearm enhancement could have

succeeded. The plea agreement included an express caveat that “should other

factors result in a recommended sentence which is higher than contemplated or

forecasted by the parties, such a sentence is not in violation of this agreement.”

      2.      Soto suggests in passing that his § 2255 waiver cannot foreclose a

challenge to his sentence under Apprendi v. New Jersey, 530 U.S. 466 (2000);

United States v. Booker, 543 U.S. 220 (2005); or United States v. Ameline, 409

F.3d 1073 (9th Cir. 2005) (en banc). Because his argument on this issue “was not

coherently developed in his briefs on appeal, we deem it to have been abandoned.”

U.S. v. Kimble, 107 F.3d 712, 715 n.2 (9th Cir. 1997). In any event, the Apprendi
challenge is meritless, as, post-Booker, guidelines enhancements are not mandatory

and do not increase the maximum sentence. See Ameline, 409 F.3d at 1074.

      3.     Additional challenges to the calculation of Soto’s sentence were raised

only in the reply brief. Arguments raised for the first time in a reply brief are

waived. See Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir. 1990).

      AFFIRMED.
                                                       FILED
United States v. Soto, No. 09-17007                     OCT 02 2012

                                                    MOLLY C. DWYER, CLERK
WALLACE, J., concurring:                             U .S. C O U R T OF APPE ALS




      Judge Wallace concurs in the judgment only.
