                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 31 2012
                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-50083

               Plaintiff - Appellee,             D.C. No. 8:09-cr-00018-JVS

  v.

NAM NGOC NGUYEN,                                 MEMORANDUM *

               Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     James V. Selna, District Judge, Presiding

                           Submitted December 19, 2012 **

Before:        GOODWIN, WALLACE, and FISHER, Circuit Judges.

       Nam Ngoc Nguyen appeals from the district court’s judgment and

challenges the 121-month sentence imposed following his guilty-plea conviction

for two counts of possession of child pornography, in violation of 18 U.S.C.

§ 2252A(a)(5)(B). We dismiss.

       Nguyen contends that the district court committed various procedural errors



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
and imposed a substantively unreasonable sentence. The government argues that

the appeal is barred by a valid appeal waiver. We review de novo whether Nguyen

has waived his right to appeal. See United States v. Bibler, 495 F.3d 621, 623 (9th

Cir. 2007).

      Nguyen first asserts that the appeal waiver does not apply because the

district court varied downward from the advisory Guidelines range. Contrary to

Nguyen’s contention, his sentence triggered the appeal waiver because it is below

the range “corresponding to” an offense level of 33 and a criminal history category

of I. See United States v. Clark, 218 F.3d 1092, 1095-96 (9th Cir. 2000) (plea

agreements are interpreted according to their “plain language”).

      Nguyen next contends that the appeal waiver is unenforceable because the

district court’s application of the preponderance of the evidence standard to the

sentencing enhancements renders his sentence unconstitutional. This argument is

also unavailing. Nguyen stipulated in his plea agreement to all of the sentencing

enhancements other than the vulnerable victim enhancement. The district court

was not required by due process to employ a clear and convincing evidentiary

standard with respect to the two-level vulnerable victim enhancement because it

did not have a disproportionate impact on the sentence. See United States v.

Jordan, 256 F.3d 922, 928 (9th Cir. 2001) (disproportionate impact measured by

the impact of the disputed sentencing enhancements on the overall sentence). In

                                          2                                    11-50083
any event, Nguyen’s stipulation that he possessed an image that depicted an “adult

male plac[ing] his penis into the anus of a minor female appearing to be about 3-4

years old” was sufficient to support the enhancement even under a clear and

convincing standard. See U.S.S.G. § 3A1.1(b)(1); United States v. Holt, 510 F.3d

1007, 1011-12 (9th Cir. 2007).

      Finally, Nguyen suggests that the appeal waiver is unenforceable because his

sentence is unconstitutional in that it was premised on an improperly calculated

advisory Sentencing Guidelines range. This argument fails because, even

assuming that a Guidelines calculation error can give rise to a constitutional claim,

Nguyen has not shown any such error here.

      Because the appeal waiver applies and is enforceable, we dismiss. See

United States v. Watson, 582 F.3d 974, 988 (9th Cir. 2009).

      DISMISSED.




                                          3                                    11-50083
