UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                      No. 95-5837
JOAGUIN MARTINEZ, a/k/a Joaquin
Martinez-Lopez,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Chief District Judge.
(CR-95-262)

Submitted: July 23, 1996

Decided: August 5, 1996

Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

David B. Smith, ENGLISH & SMITH, Alexandria, Virginia, for
Appellant. Helen F. Fahey, United States Attorney, Casey R. Triggs,
Special Assistant United States Attorney, Alexandria, Virginia, for
Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Joaquin Martinez was convicted of unauthorized reentry into the
United States as a deported alien in violation of 8 U.S.C.A. § 1326
(West Supp. 1996). He was sentenced to seventy-seven months'
imprisonment. Martinez appeals his sentence, contending that the sen-
tence violated due process because the Immigration and Naturaliza-
tion Service ("INS") knowingly misinformed him that the maximum
sentence he could receive upon illegal reentry was two years. Marti-
nez also asserts that the government should be equitably estopped
from imposing a sentence greater than two years. We affirm.

Martinez, a Honduran citizen, immigrated to the United States in
1972. In June 1983, Martinez was convicted of cocaine distribution.
Upon his conviction, the INS deported him to Honduras in 1986.
Martinez reentered the United States in December 1987 and was sub-
sequently convicted of unlawfully reentering the United States in
December 1988. He was again deported in April 1990. Prior to his
deportation, the INS served Martinez with an INS Form I-294 inform-
ing him that any deported person who returns without permission is
guilty of a felony, and if convicted may be punished by imprisonment
of not more than two years and/or a fine of not more than $1000.*
The form expressly cited § 1326.
_________________________________________________________________
*The INS form sent to Martinez was not revised to reflect the changes
in § 1326 which occurred in November 1988. The 1988 amendment to
§ 1326 added § 1326(b), which enhanced penalties for defendants who
were previously convicted of a felony and then reentered the United
States without permission. Consequently, at the time Martinez received
the INS form, he was subject to § 1326(b)(2), which provided that an
alien who reenters the United States whose deportation was subsequent
to a conviction of an aggravated felony shall be imprisoned not more
than fifteen years. Section (b)(2) was amended again in 1994 to permit
imprisonment for not more than twenty years.

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Martinez was arrested in Fairfax County, Virginia, in May 1995 for
once again illegally reentering the United States. Martinez pled guilty,
and at his sentencing hearing, he argued that he should be sentenced
at the low end of the Sentencing Guidelines because Form I-294
reflected that he was subject to a maximum of only twenty-four
months imprisonment if he returned to the United States.

Martinez first asserts that his sentence violates due process because
the INS took affirmative steps to mislead him into believing that the
penalty was much lower than provided in the statute. We review de
novo the district court's application of constitutional standards to
Martinez's claims. United States v. Perez-Torres , 15 F.3d 403, 406
(5th Cir. 1994), cert. denied, ___ U.S. ___, 63 U.S.L.W. 3260 (U.S.
Oct. 3, 1994) (No. 93-9301).

Due process requires that a defendant receive fair warning as to
what conduct the government intended to make criminal. See United
States v. Pennsylvania Indus. Chem. Corp., 411 U.S. 655, 674 (1973).
It also mandates that the punishment authorized for violation of a
criminal statute be clearly defined in the statute itself. See United
States v. Batchelder, 442 U.S. 114, 121-23 (1979).

Due process was satisfied in this case, because Martinez was
expressly and correctly informed on Form I-294 that reentry without
permission was a felony. In addition, § 1326, which was cited on
Form I-294, clearly and unambiguously articulated the penalties asso-
ciated with a reentry offense. Thus, the inaccuracy of Form I-294
regarding the possible sentence is irrelevant to the requirements of
due process. See United States v. Shaw, 26 F.3d 700, 701 (7th Cir.
1994) (rejecting similar due process claim); Perez-Torres, 15 F.3d at
406-07 (same).

Next, Martinez claims that the government should be equitably
estopped from imposing a longer sentence than the sentence referred
to in Form I-294. This court's decision in United States v. Agubata,
60 F.3d 1081 (4th Cir. 1995), cert. denied, ___ U.S. ___, 64 U.S.L.W.
3558 (U.S. Feb. 20, 1996) (No. 95-6254), is controlling. In Agubata,
we held that the government is not equitably estopped from imposing
a longer sentence because the government's failure to amend Form

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I-294 does not amount to affirmative misconduct. Id. at 1083-84. We
decline Martinez's invitation to reconsider Agubata.

Accordingly, we affirm Martinez'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 argu-
ment would not aid the decisional process.

AFFIRMED

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