United States of America v. Jose Luis Bernal-Arias

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE LUIS BERNAL-ARIAS,
Defendant-Appellant.
No. 17-10013
D.C. No. 3:15-cr-00072-RCJ
MEMORANDUM*
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.
FILED
NOV 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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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.
17-10013 2

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