United States v. Hugo Castellon

610 F. App'x 597

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 27, 2015
• Docket: 15-50051
• Status: Unpublished

Opinion

MEMORANDUM ***

Hugo Nestor Castellón appeals the district court’s dismissal of his appeal from the magistrate judge’s decision to order his removal to the Western District of Texas for proceedings before the United States District Court for the Western District of Texas. We dismiss the appeal for lack of jurisdiction. See 28 U.S.C. § 1291; Fed.R.Crim.P. 32.1(a)(5)(B).

Castellón was sentenced to prison and to a period of supervised release by the United States District Court for the Western District of Texas. After he commenced serving his supervised release term, the probation officer determined that Castel-lón had violated a number of his conditions of supervised release, including the requirement that he report to the probation officer. Following the approved procedures in the Fifth Circuit, which does not require a sworn statement, 1 the probation officer sought an arrest warrant, and one was issued. Castellón was eventually arrested in California, and based upon that warrant the magistrate judge ordered his removal to the Western District of Texas. See Fed.R.Crim.P. 32.1(a)(5)(B). Castel-lón ultimately filed this appeal.

However, the magistrate judge’s removal order was not properly appealed to us because it was not a final decision. See 28 U.S.C. § 1291; Fed.R.Crim.P. 32.1(a)(5)(B) 2 ; Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 275-76, 108 S.Ct. 1138, 1136-37, 99 L.Ed.2d 296 (1988); United States v. McCray, 458 F.2d 389, 389 (9th Cir.1972) (per curiam); Binion v. United States, 201 F.2d 498, 499 (9th Cir.1953) (per curiam); Meltzer v. United States, 188 F.2d 916, 917 (9th Cir.1951) (per curiam); Fries v. United States, 284 F. 825, 826-27 (9th Cir.1922); cf. 28 U.S.C. § 2253(b). Therefore, we lack jurisdiction. 3 Castellón can raise his objections to the warrant in the court where the violation proceedings are pending. See Meltzer, 188 F.2d at 917.

DISMISSED.

*** jjjig disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1 . See United States v. Garcia-Avalino, 444 F.3d 444, 447 (5th Cir.2006). Incidentally, had the probation officer sought a supervised release violation warrant in the Ninth Circuit, a sworn statement would have been required. See United States v. Vargas-Amaya, 389 F.3d 901, 907 (9th Cir.2004).

2 . The older cases cite various predecessor provisions. See Fed.R.Crim.P. 40(b) (2015), including Advisory Committee Notes to 1979, 1989, and 2002 Amendments; Fed.R.Crim.P. 40(b) (1952).

3 . We also note that Castellón has in fact been removed to the Western District of Texas.