United States of America, Plaintiff-appellee, v. Saul Enrique Cortes-cabrera, Aka, Luis Enrique Gomez, Carlosalavarz-garcia, Mario Rene Cortez-alonso,defendant-appellant, 28 F.3d 108 (9th Cir. 1994)

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US Court of Appeals for the Ninth Circuit - 28 F.3d 108 (9th Cir. 1994)

Submitted March 11, 1994. *Decided June 23, 1994


Before: WALLACE, Chief Judge, FARRIS and KLEINFELD, Circuit Judges.


MEMORANDUM

Cortes-Cabrera appeals from his judgment of conviction following his sentence of 70 months' imprisonment as a result of his guilty plea to being present in the United States after prior deportations in violation of 8 U.S.C. § 1326(a), (b) (2). The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 18 U.S.C. § 3742. We affirm.

Upon his most recent deportation, Cortes-Cabrera was given Immigration and Naturalization Form I-294 which stated that if he returned illegally he would be subject to no more than two years' imprisonment, although the statutory maximum sentence had been increased to 15 years' imprisonment. Cortes-Cabrera argues that the district court should have applied the due process doctrine of fair notice to estop the government from seeking more than a two year sentence. His argument is foreclosed by United States v. Ullyses-Salazar, No. 93-50144, slip op. 6543 (9th Cir. June 20, 1994), which held that the due process doctrine of fair notice does not estop the government from seeking a sentence exceeding two years, despite the contents of Form I-294.

Cortes-Cabrera also argues that the district court had the authority to depart from the Sentencing Guidelines based on the situation presented by the erroneous information in Form I-294. We review de novo whether a district court lacked authority to depart. United States v. Williams, 978 F.2d 1133, 1136 (9th Cir. 1992). Based on our decision in Ullyses-Salazar, it is clear that the district court did not have the authority to depart. Slip op. at 6552-53.

AFFIRMED.

Note: This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

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The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4