NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 27 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, ) No. 15-50051
)
Plaintiff - Appellee, ) D.C. No. 3:15-mj-00185-JMA-AJB-1
)
v. ) MEMORANDUM*
)
HUGO NESTOR CASTELLON, )
)
Defendant - Appellant. )
)
Appeal from the United States District Court
for the Southern District of California
Jan M. Adler, Magistrate Judge, Presiding
Submitted July 6, 2015**
Pasadena, California
Before: FERNANDEZ and CLIFTON, Circuit Judges, and MUELLER,*** District
Judge.
Hugo Nestor Castellon appeals the district court’s dismissal of his appeal
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Kimberly J. Mueller, District Judge for the U.S. District
Court for the Eastern District of California, sitting by designation.
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).
Castellon 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 Castellon 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.
Castellon 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). Castellon 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.
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
32.1(a)(5)(B)2; Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271,
275–76, 108 S. Ct. 1133, 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
Castellon can raise his objections to the warrant in the court where the violation
proceedings are pending. See Meltzer, 188 F.2d at 917.
DISMISSED.
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 Castellon has in fact been removed to the Western District
of Texas.
3