                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          APR 26 2000
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 99-1357
 v.
                                                    (D.C. No. 99-CR-32)
                                                         (D. Colo.)
 GONZALO SANCHEZ-PATINO,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.


      Gonzalo Sanchez-Patino pled guilty to illegal entry following deportation,

in violation of 8 U.S.C. § 1326(a), and was sentenced to 57 months of

imprisonment and three years of supervised release. His sentence was based on a

guideline base offense level of 8, increased by 16 levels for having a prior

conviction for an aggravated felony, and decreased by 3 levels for acceptance of



      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
Order and Judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
responsibility, yielding a total offense level of 21, and a criminal history category

of IV. On appeal, Sanchez-Patino argues that the district court erred in treating

his prior felony conviction for sale of heroin as an aggravated felony when it

computed his total offense level. We affirm.

                                  BACKGROUND

      In February 1995, Sanchez-Patino, a Mexican citizen, was arrested for

distributing heroin to an undercover officer. He was convicted in Colorado state

court and sentenced to three years of probation for that offense. The federal

Immigration and Naturalization Service (“INS”) deported Sanchez-Patino to

Mexico on March 31, 1995. There is no dispute that Sanchez-Patino’s conviction

was an “aggravated felony” within the meaning of the illegal reentry statute and

the corresponding sentencing guideline. See 8 U.S.C. § 1101(a)(43)(B) (defining

aggravated felony to include “illicit trafficking in a controlled substance”);

U.S.S.G. § 2L1.2 commentary (n.1) (incorporating statutory definition “without

regard to the date of the conviction of the aggravated felony).

      On September 2, 1996, Sanchez-Patino was arrested attempting to reenter

the United States at the New Mexico border. He was charged with illegal reentry

following conviction of an aggravated felony, in violation of 8 U.S.C. § 1326(a)

and (b)(2). Sanchez-Patino pled guilty to an information treating his prior

conviction for an aggravated felony as a non-aggravated felony, under 8 U.S.C. §


                                         -2-
1326(b)(1). The plea enabled Sanchez-Patino to receive a 4-level enhancement

under U.S.S.G. § 2L1.2(b)(1)(B), instead of a 16-level enhancement under

U.S.S.G. § 2L1.2(b)(1)(A). The plea agreement expressly stated that it was

limited to the United States Attorney’s Office for the District of New Mexico and

did not bind any other federal, state, or local agencies or prosecuting authorities.

(See Doc. 24, Attachment B, ¶ 14.) The federal district court in New Mexico

accepted the plea agreement and sentenced Sanchez-Patino to 13 months’

imprisonment. On August 12, 1997, Sanchez-Patino was released from federal

custody and deported to Mexico.

      On December 12, 1998, Sanchez-Patino was arrested by Denver police

during a drug investigation. No drug charges were filed, but Denver authorities

notified the INS about Sanchez-Patino’s unlawful reentry into the United States.

Sanchez-Patino was prosecuted and pled guilty to illegal reentry in violation of 8

U.S.C. § 1326. Sanchez-Patino filed a motion for downward departure,

contending that under “equitable estoppel” principles, his prior conviction for sale

of heroin should not be treated as an aggravated felony in computing his offense

level. He based his argument on the fact that in the District of New Mexico

prosecution, the U.S. District Court and the government treated that felony as if it

were not an aggravated felony. (See Doc. 24 at 2-4.) The district court denied

Sanchez-Patino’s motion, stating that “[e]stoppel involves conduct which creates


                                         -3-
a reasonable expectation,” and that Sanchez-Patino’s argument was “not practical

. . . because it gives to me as the sentencing judge in the first instance, an ability

to bind all further judges because of alleged reliance on my lesser sentence.”

(ROA, Vol. 3, at 20.) Sanchez-Patino appeals, arguing that the district court

should have found that equitable estoppel prevented it from treating his prior

conviction as an aggravated felony.

                                     DISCUSSION

      The issue of whether there are grounds for applying estoppel is a legal one

reviewed de novo on appeal. See United States v. Gutierrez-Gonzalez, 184 F.3d

1160, 1164 (10th Cir. 1999). However, because estoppel is an equitable concept

invoked by the court in its discretion, a district court's rejection of an equitable

estoppel argument is reviewed under the abuse of discretion standard. See

Hoefler v. Babbitt, 139 F.3d 726, 727 (9th Cir. 1998).

      Sanchez-Patino argues that he relied to his detriment on the New Mexico

District Court’s treatment of his prior conviction as a non-aggravated felony. He

contends that had he known the conviction would be treated as an aggravated

felony, thus significantly increasing the penalty for reentry, his conduct would

have been different. We agree with the district court that Sanchez-Patino’s

argument lacks merit. The New Mexico plea agreement signed by Sanchez-Patino

expressly stated that it did not bind any other federal, state, or local agencies or


                                          -4-
prosecuting authorities. Moreover, regardless of the penalty Sanchez-Patino

thought he might receive, he knew that his reentry was illegal. See United States

v. Perez-Torres, 15 F.3d 403, 407 (5th Cir. 1994) (finding that equitable estoppel

was foreclosed to a defendant who knew re-entry was illegal and nevertheless

willfully and purposely engaged in it). Contrary to the situation in which the

government has committed affirmative misconduct, Sanchez-Patino’s 1996 plea

agreement stated it was not binding on any other prosecuting officials, making his

reliance upon it unreasonable because the government promised him nothing in

that regard. See Cunningham v. Diesslin, 92 F.3d 1054, 1059-60 (10th Cir. 1996)

(finding that where a plea agreement did not promise mandatory parole, estoppel

would not bar a defendant from serving a full sentence); Perez-Torres, 15 F.3d at

407 (noting that a sentence enhancement was not estopped when the defendant

“had reasonable opportunity for knowledge of the potential penalty”).

      We AFFIRM the conviction and sentence of the district court.

      The mandate shall issue forthwith.

                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




                                        -5-
