United States v. Felipe Perez-Mendez

Court of Appeals for the Ninth Circuit · 11-50024 · 2012-01-04 · Unpublished

UNITED STATES of America, Plaintiff—Appellee, v. Felipe PEREZ-MENDEZ, Defendant-Appellant

Area: other
Panel: Alfred T. Goodwin (author), William T. Wallace, Mary M. McKeown

Analysis

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Opinion

FILED NOT FOR PUBLICATION JAN 04 2012

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. 11-50024 Plaintiff - Appellee, D.C. No. 3:10-cr-02512-JLS-1 v. MEMORANDUM * FELIPE PEREZ-MENDEZ, Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Janis L. Sammartino, District Judge, Presiding Submitted December 19, 2011 ** Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.

Felipe Perez-Mendez appeals from a condition of supervised release imposed following his guilty-plea conviction for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326(a). We dismiss the appeal in light of the valid appeal waiver.

* 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). A defendant’s waiver of the right to appeal his sentence will not apply if, among other exceptions not relevant here, the sentence violates the Constitution.

See United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007). Perez-Mendez contends that the condition of his supervised release requiring him to submit to DNA collection violates the Fourth Amendment. However, this contention is foreclosed by United States v. Hugs, 384 F.3d 762, 769 (9th Cir. 2004) (“A condition of supervised release requiring a qualified felon to provide a DNA sample pursuant to the procedures set forth in the DNA Act, 42 U.S.C. § 14135a, does not violate the Fourth Amendment.”). Perez-Mendez’s contention that the appeal waiver is inapplicable under United States v. Montilla, 870 F.2d 549 (9th Cir. 1989) is also unavailing.

We therefore dismiss Perez-Mendez’s appeal.

DISMISSED.

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