                                                                             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                            NOT FOR PUBLICATION                              NOV 17 2017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
