                                                                           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                            NOT FOR PUBLICATION                             JAN 04 2012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.




                                          2                                    11-50024
