United States v. Delfino Solorzano

669 F. App'x 936

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 31, 2016
• Docket: 15-10362
• Status: Unpublished

Opinion

MEMORANDUM **

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 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, 118 S.Ct. 1219, 140 L.Ed.2d 350 (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.

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.