The Honorable Warren K. Urbom, United States District Judge for the District 1

of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-3157

___________

United States of America, *

 *

Appellee, *

 *

v. * Appeal from the United States

 * District Court for the 

Salvador Maravilla Andrade, also * District of Nebraska.

known as Luis M. Godoy, also known *

as Salvador Andrade, also known as * [UNPUBLISHED]

Luis Andrade-Godinez, *

 *

Appellant. *

___________

 Submitted: June 6, 1997

 Filed: June 13, 1997

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Before BEAM, MAGILL, and LOKEN, Circuit Judges.

___________

PER CURIAM.

Salvador Maravilla Andrade pleaded guilty to illegally reentering the United

States after being previously arrested and deported, in violation of 8 U.S.C. § 1326.

At sentencing, the district court enhanced Andrade's base offense level by sixteen

1

levels under U.S. Sentencing Guidelines Manual § 2L1.2(b)(2) (1995) because

Andrade had been deported following an "aggravated felony conviction," namely, an

Oregon felony conviction for delivering cocaine. The court ultimately sentenced 
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Andrade to 46 months imprisonment and two years supervised release, and he appeals

his conviction and sentence. After the appeal was filed, counsel submitted a brief under

Anders v. California, 386 U.S. 738 (1967). We granted Andrade leave to file a pro se

supplemental brief, but he has not done so. We affirm. 

Counsel first argues that the government should be estopped from claiming it

"found" Andrade in the United States after he was deported--as alleged in the

indictment--because Andrade sought permission to remain in the United States after he

illegally reentered the country. Assuming this claim survived Andrade’s guilty plea,

see United States v. Vaughan, 13 F.3d 1186, 1187-88 (8th Cir.), cert. denied, 511 U.S.

1094 (1994), his alleged effort to legalize his presence here cannot estop the

government from prosecuting him for illegally reentering the country in the first place,

see United States v. Agubata, 60 F.3d 1081, 1083 (4th Cir. 1995) (discussing equitable

estoppel), cert. denied, 116 S. Ct. 929 (1996). We reject Andrade's additional

suggestion that his incarceration within this country's borders at the time he was

discovered estops the government from claiming it "found" him. See United States v.

Ortiz-Villegas, 49 F.3d 1435, 1437 (9th Cir.), cert. denied, 116 S. Ct. 134 (1995).

Next, counsel argues that Andrade's 46-month sentence violates fundamental

fairness and due process, because it exceeds the potential penalty for illegal reentry that

was noted on the Immigration and Naturalization Service Form I-294 Andrade received

when he was previously deported. This argument also fails. See United States v.

Denis-LaMarchez, 64 F.3d 597, 598 (11th Cir. 1995) (per curiam) (because INS Form

I-294 is not criminal statute, sentencing in excess of two-year maximum erroneously

stated on form does not violate due process or fundamental unfairness), cert. denied,

116 S. Ct. 799 (1996).
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Finally, counsel challenges the aggravated-felony enhancement Andrade

received, noting that Andrade now insists his Oregon conviction was for mere

possession of a controlled substance. As Andrade failed to raise this challenge below,

we review it only for plain error, see United States v. Fritsch, 891 F.2d 667, 668 (8th

Cir. 1989), and find none, see U.S. Sentencing Guidelines Manual § 2L1.2, comment.

(n.7) (1995). 

Upon reviewing the record in accordance with Penson v. Ohio, 488 U.S. 75, 80

(1988), we find no nonfrivolous issues for appeal.

Accordingly, we affirm.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.