United States of America, Plaintiff-appellee, v. Roberto Antonio Herrera-elias, Aka Trini Antonio Marrokin,defendant-appellant, 32 F.3d 573 (9th Cir. 1994)

MEMORANDUM^** 

Roberto Antonio Herrera-Elias appeals his 30-month sentence imposed following entry of a guilty plea to being present in the United States after a prior deportation, in violation of 8 U.S.C. § 1326(a), (b) (1). Herrera-Elias contends that the district court violated his due process rights by sentencing him to more than 24 months in custody. We have jurisdiction pursuant to 18 U.S.C. § 1291, and we affirm.

We review the legality of a sentence de novo. United States v. Fine, 975 F.2d 596, 599 (9th Cir. 1993) (en banc).

Before deporting Herrera-Elias in 1989, the Immigration and Naturalization Service (INS) gave him Form I-294, which stated that the maximum penalty for reentering the United States after deportation was two years. Herrera-Elias's fair notice and estoppel by entrapment due process challenges to his receipt of a sentence in excess of 24 months are foreclosed by our decision in United States v. Ullyses-Salazar, No. 93-50144, slip op. 6543, 6548-50 (9th Cir. June 20, 1994) (information contained in Form I-294 that understates penalty for being present in United States following deportation does not give rise to violations of defendant's due process rights based upon lack of fair notice or estoppel by entrapment). Furthermore, because Herrera-Elias did not show that the INS's failure to revise its Form I-294 was affirmative misconduct, his challenge based on equitable estoppel also fails. See id. at 6551-52 (mere passage of time insufficient to establish affirmative misconduct).

AFFIRMED.