United States v. Juan Montes-Torres , 519 F. App'x 485 ( 2013 )

FILED
NOT FOR PUBLICATION MAY 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50159
Plaintiff - Appellee, D.C. No. 3:11-cr-01424-MMA
v.
MEMORANDUM *
JUAN MONTES-TORRES,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Submitted May 14, 2013 **
Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges.
Juan Montes-Torres appeals from the district court’s judgment and
challenges the order denying his motion to dismiss the indictment charging him
with being a deported alien found in the United States, in violation of 8 U.S.C.
§ 1326. We dismiss.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The government argues that this appeal should be dismissed because
Montes-Torres waived his right to appeal pretrial constitutional defects when he
entered an unconditional guilty plea. We review de novo whether a defendant
waived his right to appeal. See United States v. Arias-Espinosa, 704 F.3d 616, 618
(9th Cir. 2012).
When Montes-Torres entered his guilty plea, he did not preserve his right to
challenge the district court’s denial of his motion to dismiss the indictment. Thus,
he waived his right to bring this appeal. See United States v. Lopez-Armenta, 400
F.3d 1173, 1175 (9th Cir. 2005). Contrary to Montes-Torres’s contention, the
district court’s statement at the subsequent sentencing hearing that he retained the
right to appeal did not restore his right to appeal the court’s denial of his motion to
dismiss. See id. at 1176-77.
DISMISSED.
2 12-50159