United States of America, Plaintiff-appellee, v. Oscar Morales, Defendant-appellant, 28 F.3d 109 (9th Cir. 1994)

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U.S. Court of Appeals for the Ninth Circuit - 28 F.3d 109 (9th Cir. 1994) Submitted March 11, 1994. *Decided June 23, 1994

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


Morales appeals from his sentence of 77 months' imprisonment following his guilty plea to being present in the United States after prior deportations in violation of 8 U.S.C. § 1326(a), (b) (1), (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 deportations, Morales was given Immigration and Naturalization Service Form I-294 which stated that if he returned illegally he would be subject to no more than two years' imprisonment. The statutory maximum sentence had been increased to 15 years' imprisonment. Morales argues that the district court should have applied the due process doctrines of fair notice and entrapment estoppel to hold that the government could seek no 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 due process principles do not estop the government from seeking a sentence exceeding two years, despite the contents of Form I-294.

Morales has also moved for a limited remand to the district court for the purpose of reconsideration of his sentence. In its holding in United States v. Sanchez-Montoya, 834 F. Supp. 315, 318-19 n. 2 (C.D. Cal. 1993), the same district court concluded that it was wrong in this case. Because we hold the district judge correctly decided the issue in this case, there is no reason for a remand.


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.


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