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29 F3d 636 United States v. Linares

29 F.3d 636

UNITED STATES of America, Plaintiff-Appellee,
v.
Esteban LINARES, Defendant-Appellant.

No. 93-50353.

United States Court of Appeals, Ninth Circuit.

Submitted March 11, 1994.*
Decided June 22, 1994.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

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

MEMORANDUM

1

Linares appeals from his judgment of conviction following his sentence of 71 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. Sec. 1326(a), (b)(2). The district court had jurisdiction pursuant to 18 U.S.C. Sec. 3231. We have jurisdiction over this timely appeal pursuant to 18 U.S.C. Sec. 3742. We affirm.

2

Upon his deportations, Linares 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, although the statutory maximum sentence had been increased to 15 years' imprisonment. Linares 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.

3

Linares 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.

4

AFFIRMED.

5

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