                                                                           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                            NOT FOR PUBLICATION                             MAY 21 2013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
