                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 20 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-10185

                Plaintiff-Appellee,             D.C. No. 3:15-cr-00054-RCJ

 v.
                                                MEMORANDUM*
JOSE ARNOLDO ALVAREZ, a.k.a. Luis
Arias-Fonseca,

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Nevada
                   Robert Clive Jones, District Judge, Presiding

                          Submitted December 18, 2017**

Before:      WALLACE, SILVERMAN, and BYBEE, Circuit Judges.

      Jose Arnoldo Alvarez appeals from the district court’s judgment and

challenges the 78-month sentence imposed following his guilty-plea conviction for

conspiracy to possess with intent to distribute methamphetamine, in violation of 21

U.S.C. §§ 841(a), 841(b)(1)(B)(viii), and 846. We have jurisdiction under 28


      *
             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).
U.S.C. § 1291. We affirm.

      Alvarez contends that the district court’s comments regarding his national

origin reveal a bias that required the court’s recusal under either 28 U.S.C.

§§ 455(a) and (b)(1), or the Due Process Clause, or both. Alvarez further argues

that the district court’s reliance on his nationality resulted in a sentence that

violates his due process rights. The government contends that this appeal is barred

by a valid appeal waiver, and that the district court’s comments do not demonstrate

potential or actual bias. We review de novo whether a defendant has waived his

right to appeal. See United States v. Harris, 628 F.3d 1203, 1205 (9th Cir. 2011).

Because Alvarez raises his impartiality claims for the first time on appeal, we

review for plain error. See United States v. Antonakeas, 255 F.3d 714, 727 (9th

Cir. 2001) (unconstitutional sentence claim); United States v. Bosch, 951 F.2d

1546, 1548 (9th Cir. 1991) (section 455 claim).

      The plea waiver does not apply to Alvarez’s constitutional claim, see United

States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007), and we decline to enforce it as

to his related section 455 claim. Both claims, however, fail on their merits. The

district court’s comments regarding Alvarez’s potential involvement with a

Mexican cartel were made in the context of assessing Alvarez’s role in the offense

and whether he was entitled to a minor role reduction. In context, the comments

do not reasonably call the district court’s impartiality into question or “reveal such


                                            2                                       17-10185
a high degree of . . . antagonism as to make fair judgment impossible.” Liteky v.

United States, 510 U.S. 540, 555 (1994); see also Taylor v. Regents of Univ. of

Cal., 993 F.2d 710, 712 (9th Cir. 1993) (stating the standard for recusal under

section 455). The record demonstrates that, unlike the defendant in United States

v. Borrero-Isaza, 887 F.2d 1349 (9th Cir. 1989), Alvarez was not penalized

because of his national origin. Rather, the district court denied Alvarez a minor

role reduction because his role in the offense was greater than that of his charged

coconspirator. Furthermore, the district court’s comments do not show that

Alvarez’s due process rights were violated. See United States v. Odachyan, 749

F.3d 798, 802-03 (9th Cir. 2014).

      AFFIRMED.




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