USA V. JOSE BERNAL-ARIAS, No. 17-10013 (9th Cir. 2017)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS NOV 17 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 17-10013 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, BernalArias 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 BernalArias’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
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