United States v. Delfino Solorzano

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…