United States of America, Plaintiff-appellee, v. Martin Luis Ruiz-alvarez, Aka: Martin Ruiz Alvarez,defendant-appellant, 37 F.3d 1507 (9th Cir. 1994)

MEMORANDUM^** 

Ruiz-Alvarez appeals his conviction and sentence for illegal re-entry into the United States after three prior deportations and three prior convictions (two aggravated felonies and one non-aggravated felony) in violation of 8 U.S.C. § 1326(b) (1). We have jurisdiction pursuant to 28 U.S.C. § 1291.

Ruiz-Alvarez pled guilty without challenging his conviction before the district court. We will nevertheless review his arguments because claims that "the applicable statute is unconstitutional or that the indictment fails to state an offense are jurisdictional claims not waived by" Ruiz-Alvarez's guilty plea. United States v. Montilla, 870 F.2d 549, 552 (9th Cir. 1989) (internal quotation and citation omitted). Ruiz-Alvarez contends that his conviction should be reversed because (1) Sec. 1326 is unconstitutionally vague, (2) Sec. 1326 impermissibly punishes a status offense, and (3) the indictment failed to allege that Ruiz-Alvarez intended to violate the law. Each of Ruiz-Alvarez's challenges to his conviction is foreclosed by our decision in United States v. Ayala, No. 93-50771 slip op. 10757 (9th Cir. Sept. 9, 1994).

Ruiz-Alvarez also failed to object to his sentence before the district court. Ruiz-Alvarez's challenge to his sentence does not arise from a change in law, and it raises issues of fact (relating to equitable estoppel) in addition to issues of law. We would review his sentence only if such review were necessary to "prevent a miscarriage of justice or to preserve the integrity of the judicial process." Jovanovich v. United States, 813 F.2d 1035, 1037 (9th Cir. 1987). It is not. Even if we were to consider his argument that the government should be estopped from seeking a sentence in excess of two years, we would reject it on the basis of United States v. Ullyses-Salazar, No. 93-50144, slip op. 6543, (9th Cir. June 20, 1994).

AFFIRMED.