UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 97-4229

JOHNSON EDEKI, a/k/a Pius Ojo

Ahanmisi,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Alexander Williams, Jr., District Judge.

(CR-95-456-AW)

Submitted: April 7, 1998

Decided: April 27, 1998

Before MURNAGHAN and MICHAEL, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

J. Dennis Murphy, Jr., Annapolis, Maryland, for Appellant. Lynne A.

Battaglia, United States Attorney, Steven M. Dettelbach, Assistant

United States Attorney, Greenbelt, Maryland, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Johnson Edeki, previously deported after commission of an aggravated felony, pled guilty to unauthorized reentry by a deported alien

under 8 U.S.C.A. § 1326(b)(2) (West Supp. 1998) and received a

forty-one month sentence. He appeals, alleging that the doctrine of

equitable estoppel should prevent him from being sentenced to greater

than two years imprisonment, due to an erroneous Immigration and

Naturalization Service ("INS") form. For the reasons that follow, we

affirm.

Edeki was deported to Nigeria on September 26, 1989, following

his conviction for importing heroin into the United States. At the time

of his deportation he was provided with INS Form I-294 which reads,

in pertinent part:

Should you wish to return to the United States you must

write this office or the American Consular Office nearest

your residence abroad as to how to obtain permission to

return after deportation. By law (Title 8 of the United States

Code, Section 1326) any deported person who within five

years returns without permission is guilty of a felony. If

convicted he may be punished by imprisonment of not more

than two years and/or a fine of not more than $1,000.00.

(Joint appendix "J.A." at 8). The form was erroneous because in

November 1988 Congress had amended § 1326 to increase the maximum penalty to fifteen years following the deportation of an alien

convicted for an aggravated felony. See United States v. Agubata, 60

F.3d 1081, 1083 (4th Cir. 1995). The maximum penalty currently is

twenty years. See 8 U.S.C.A. § 1326(b)(2).

Edeki at no time sought permission from the INS or other official

means to legally reenter the country. Nonetheless, he was found in the

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United States on or about September 14, 1995, under the name of Pius

Ojo Ahanmisi. On appeal, Edeki alleges he relied upon the erroneous

INS Form I-294 and waited five years to return to the United States

and therefore, he argues, he should only be sentenced to two years of

imprisonment.

This argument fails for several reasons. First, despite the fact that

the district court provided Edeki an opportunity to prove that he reentered the United States after five years in reliance on the form, he

failed to present evidence on this issue. Second, Edeki cannot claim

he was not provided fair notice that reentry without permission at any

time following deportation was illegal, as due process is satisfied if

the "criminal statute `give[s] a person of ordinary intelligence fair

notice that his contemplated conduct is forbidden.'" United States v.

Aquino-Chacon, 109 F.3d 936, 938 (4th Cir.) (quoting United States

v. Harriss, 374 U.S. 612, 617 (1954)), cert. denied, ___ U.S. ___, 66

USLW 3296 (U.S. Oct. 20, 1997) (No. 96-9470). Section 1326 clearly

makes reentry illegal at anytime and Form I-294 does not affirmatively state that after five years reentry may be made without permission. Finally, we have previously held in similar cases that the

erroneous Form I-294, without more, does not excuse reentry into the

United States after five years, see Aquino-Chacon, 109 F.3d at 938-

39, or limit punishment for such reentry to two years. See Agubata,

60 F.3d at 1083. Edeki has failed to meet the high burden necessary

to prevail on an estoppel theory against the government in this case,

e.g. demonstrating "that there was `active misleading' in the sense

that the government actually told him that the prescribed conduct was

permissible." Aquino-Chacon, 109 F.3d at 939 (quoting Raley v.

Ohio, 360 U.S. 423, 438 (1959)).

Accordingly we affirm Edeki's conviction and sentence. We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

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