                                                                             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                            NOT FOR PUBLICATION                              OCT 31 2016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
