Soto

MEMORANDUM **

Ramon Soto appeals pro se the district court’s denial of his motion to dismiss the indictment for lack of jurisdiction. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

On February 3, 2000, a judgment was entered against Soto imposing a 169-month sentence. We subsequently dismissed his appeal as untimely on July 20, 2000. Soto then filed a pro se motion in district court captioned: “MEMORANDUM OF POINTS AND AUTHORITIES TO DISMISS THE INDICTMENT IN THE INSTANT MATTER BASED UPON LACK OF JURISDICTION. THIS IS A CRIMINAL CASE MOTION AND IS NOT, AND SHOULD NOT, BE CONSTRUED BY THE COURT AS A PETITION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255 .”

Soto contends the district court erred by failing to construe the filing as a 28 U.S.C. § 2255 motion. In United States v. Seesing, 234 F.3d 456, 464 (9th Cir.2001), we stated that “[w]hen presented with a pro se motion that could be recharacterized as a 28 U.S.C. § 2255 motion a district court should not so recharacterize the motion unless: (a) the pro se prisoner, with knowledge of the potential adverse consequences of such a recharacterization, consents or (b) the district court finds that because of the…