United States of America, Plaintiff-appellee, v. Francisco Nieto-juarez, Defendant-appellant, 39 F.3d 1189 (9th Cir. 1994)

MEMORANDUM^** 

Francisco Nieto-Juarez appeals his sentence of 60 months imprisonment following his guilty plea conviction for being present in the United States after a prior deportation in violation of 8 U.S.C. § 1326(a) and (b) (1). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

Nieto-Juarez was deported from the United States on December 11, 1991, after being convicted in state court of possession of heroin with intent to deliver. Upon deportation, Nieto-Juarez was given Immigration and Naturalization Form I-294, which stated that if he returned illegally to the United States he would be subject to no more than two years' imprisonment. In fact, pursuant to 8 U.S.C. § 1326(b) (1) and (2), an illegally returning alien previously convicted of a felony is subject to a maximum of 5 years' imprisonment, or 15 years if convicted of an aggravated felony, as Nieto-Juarez was.

On July 23, 1993 Nieto-Juarez was again found in the United States, and subsequently pleaded guilty to illegal reentry in violation of 8 U.S.C. § 1326(a) and (b) (1). He received the maximum 60 month sentence for the offense.

Nieto-Juarez argues on appeal that the district court should have departed downward based on the erroneous information contained in the I-294 form, and the doctrine of estoppel by entrapment. These arguments are foreclosed by United States v. Ullyses-Salazar, 28 F.3d 932 (9th Cir. 1994), in which we held that the doctrine of estoppel by entrapment is inapplicable in such a case, and that a downward departure based on the content of the I-294 form is not permissible.

AFFIRMED.