Torres-Tontle

MEMORANDUM **

Defendant-Appellant Jose Torres-Ton-tle appeals his conviction and sentence for attempting unlawful re-entry to the United States after removal in violation of 8 U.S.C. § 1326 , and making a false claim to American citizenship in violation of 18 U.S.C. § 911 . We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm the conviction, but vacate the sentence and remand for resentencing.

I. CONVICTION

First, Torres-Tontle concedes that his claim as to the indictment was directly foreclosed by the Supreme Court in United States v. Resendiz-Ponce, 549 U.S. 102 , 127 S.Ct. 782 , 166 L.Ed.2d 591 (2007).

Second, Torres-Tontle contends that the district court erred when it failed to dismiss his indictment because of allegedly improper grand jury instructions. We reject this argument because this court has upheld the challenged instructions as constitutional. See United States v. Cortez-Rivera, 454 F.3d 1038, 1040-41 (9th Cir.2006); United States v. Navarro-Vargas, 408 F.3d 1184, 1204 (9th Cir.2005) (en banc). Accordingly, the district court did not err in denying the motion to dismiss the indictment.

Third, Torres-Tontle argues that his statements to Officer…