Arroyo

MEMORANDUM **

Bernardo Arroyo appeals his conviction and sentence for conspiracy to distribute controlled substances, in violation of 21 U.S.C. §§ 841 (a)(1) and 846, and possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841 (a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 , and we affirm.

Arroyo contends, for the first time on appeal, that his conviction should be reversed, under United States v. Nordby, 225 F.3d 1053 (9th Cir.2000), overruled in part by United States v. Buckland, 277 F.3d 1173, 1182 (9th Cir.2002) (en banc), because the government failed to submit and prove drug quantity at trial. We review for plain error, see Nordby, 225 F.3d at 1060 , and conclude that any error was harmless because Arroyo’s sentence did not exceed the twenty-year statutory maximum penalty as determined under the facts found beyond a reasonable doubt by the district court. See United States v. Antonakeas, 255 F.3d 714, 728 (9th Cir. 2001).

Arroyo also contends, for the first time on appeal, that he was subjected to vindictive prosecution because the government’s post-trial sentence recommendation was higher than the one in its…