United States v. Edeki ( 1998 )

UNPUBLISHED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.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
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Unpublished opinions are not binding precedent in this circuit.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 aggra-
vated 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 maxi-
mum 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 reen-
tered 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 affirma-
tively state that after five years reentry may be made without permis-
sion. 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 dis-
pense 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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