FILED
NOT FOR PUBLICATION NOV 17 2017
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10013
Plaintiff-Appellee, D.C. No. 3:15-cr-00072-RCJ
v.
MEMORANDUM*
JOSE LUIS BERNAL-ARIAS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Robert C. Jones, District Judge, Presiding
Submitted November 15, 2017**
Before: CANBY, TROTT, and GRABER, Circuit Judges.
Jose Luis Bernal-Arias appeals from the district court’s judgment and
challenges the 60-month sentence imposed following his guilty-plea conviction for
conspiracy to possess with intent to distribute heroin, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B)(i), and 846. We dismiss.
*
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).
Bernal-Arias challenges the district court’s finding that he was not safety
valve eligible, as well as the district court’s decision to apply a two-level
enhancement for maintaining a premises for the purpose of manufacturing or
distributing a controlled substance. The government contends that the appeal is
barred by an appeal waiver in the parties’ plea agreement. We review de novo
whether the appeal is barred by a waiver. See United States v. Arias-Espinosa, 704
F.3d 616, 618 (9th Cir. 2012).
The appeal waiver in the parties’ plea agreement covers Bernal-Arias’s
claims, and the record reflects that the waiver was knowing and voluntary. See
United States v. Harris, 628 F.3d 1203, 1205 (9th Cir. 2011). Nonetheless, Bernal-
Arias argues that the district court vitiated the written waiver at sentencing. This
claim fails because the court’s statement regarding Bernal-Arias’s right to appeal
was qualified. See Arias-Espinosa, 704 F.3d at 618-20. We also reject Bernal-
Arias’s call to ignore the appeal waiver to prevent a “miscarriage of justice.” Even
assuming this court recognized such an exception to the enforceability of an appeal
waiver, it does not apply here.
DISMISSED.
2 17-10013