FILED
NOT FOR PUBLICATION OCT 31 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10362
Plaintiff-Appellee, D.C. No. 2:13-cr-00257-LDG
v.
MEMORANDUM*
DELFINO SOLORZANO, a.k.a. Chino,
a.k.a. Donald Gonzales, a.k.a. Manual
Valencia,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, District Judge, Presiding
Submitted October 25, 2016 **
Before: LEAVY, GRABER, and GOULD, Circuit Judges.
Delfino Solorzano appeals from the district court’s judgment and challenges
the district court’s calculation of his criminal history category, which precluded
him from obtaining safety valve relief. The government contends that Solarzano’s
*
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).
appeal is barred by the appeal waiver set forth in the parties’ plea agreement.
Reviewing de novo, see United States v. Watson, 582 F.3d 974, 981 (9th Cir.
2009), we affirm in part and dismiss in part.
Solorzano’s claim that his sentence violates his Fifth and Sixth Amendment
rights because his prior convictions were not admitted by him or proven to a jury is
not barred by the appeal waiver. See United States v. Bibler, 495 F.3d 621, 624
(9th Cir. 2007). However, Solarzano’s claim is foreclosed by the Supreme Court’s
holding in Almendarez-Torres v. United States, 523 U.S. 224 (1998). See United
States v. Guerrero-Jasso, 752 F.3d 1186, 1192 (9th Cir. 2014) (“Almendarez-
Torres excepts prior convictions from all of Apprendi’s requirements . . . .”). Thus,
we affirm as to this argument.
Solarzano also contends that the district court relied on clearly erroneous
facts in attributing convictions under another name to him. This argument is
encompassed by Solorzano’s waiver of his right to appeal a sentence within the
Guidelines range calculated by the district court. See United States v. Harris, 628
F.3d 1203, 1205 (9th Cir. 2011) (appeal waiver is enforceable if its language
encompasses the right to appeal on the grounds raised and the waiver is knowingly
and voluntarily made). Thus, we dismiss as to this argument.
AFFIRMED in part and DISMISSED in part.
2 15-10362