
    UNITED STATES of America, Plaintiff—Appellee, v. Juan Jose MORALES, Defendant—Appellant.
    No. 04-10009.
    D.C. No. CR-03-00189-JCM.
    United States Court of Appeals, Ninth Circuit.
    Submitted Sept. 13, 2004.
    
    Decided Sept. 27, 2004.
    William R. Reed, Las Vegas, NV, for Plaintiff-Appellee.
    Anne R. Traum, Las Vegas, NV, for Defendant-Appellant.
    Before PREGERSON, HAWKINS and GRABER, Circuit Judges.
    
      
      This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Juan Jose Morales appeals his 120-month sentence imposed after he pleaded guilty to possession with the intent to distribute more than 50 grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(l)(A)(viii). We lack jurisdiction and dismiss.

Morales contends that his waiver of the right to appeal is unenforceable, first because he reserved the right to appeal upward departures, and second because the waiver was not knowing and voluntary.

Morales contends that “the failure of the district court to apply the safety valve is equivalent to an upward departure.” This contention is unsupported by case law and incompatible with the plain language of the sentencing guidelines. See U.S.S.G. § 5C1.2 (2003) (setting forth criteria in order to qualify for the safety valve departure); see also U.S.S.G. § 5Gl.l(b) cmt. (2003) (stating that what constitutes a departure is a decision to impose a sentence above the statutory minimum, not the imposition of a statutory minimum sentence). Morales received the statutory minimum sentence for his conviction. See 21 U.S.C. § 841(b)(l)(A)(viii).

Next, Morales contends that his waiver of the right to appeal was not knowing and voluntary because he was not made aware of the possibility of safety valve relief. Because Morales failed to raise this issue in district court, we review for plain error, United States v. Ma, 290 F.3d 1002, 1005 (9th Cir.2002), and find Morales’ contention unpersuasive.

At sentencing, Morales’ attorney conceded that Morales did not qualify for the safety valve departure. See United States v. Ajugwo, 82 F.3d 925, 929 (9th Cir.1996) (requiring the defendant to prove by a preponderance of the evidence that he qualifies for a sentence reduction through the safety valve).

Because Morales validly waived his right to appeal, we dismiss the appeal. See United States v. Vences, 169 F.3d 611, 613 (9th Cir.1999).

DISMISSED. 
      
      
         This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
     