United States of America v. Felipe Perez-Mendez

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FELIPE PEREZ-MENDEZ,
Defendant - Appellant.
No. 11-50024
D.C. No. 3:10-cr-02512-JLS-1
MEMORANDUM*
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.
FILED
JAN 04 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-50024 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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