USA V. JUAN MONTES-TORRES, No. 12-50159 (9th Cir. 2013)
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FILED MAY 21 2013 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 12-50159 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. ยง 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
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