Martinez-Yaldez

MEMORANDUM **

Eduardo Martinez-Valdez appeals his conviction and sentence for being a deported alien found in the United States ’in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (a). We review de novo the district court’s denial of a motion to dismiss the indictment, United States v. Cortez-Rivera, 454 F.3d 1038, 1040 (9th Cir.2006), as well as its determination that a prior conviction qualifies as an “aggravated felony” under the Sentencing Guidelines. United States v. Figueroa-Ocampo, 494 F.3d 1211, 1213 (9th Cir.2007). We affirm the district court’s denial of the motions to dismiss the indictment, but remand for resentencing.

1. Martinez-Valdez contends that the district court erred in denying his motion to dismiss the indictment on the basis of allegedly improper grand jury instructions. He argues that the grand jury instructions violated the Fifth Amendment by improperly limiting the grand jury’s discretion to *508 decline to indict in the presence of probable cause. We disagree. The instructions here substantially mirrored those approved in Cortez-Rivera and United States v. Navarro-Vargas, 408 F.3d 1184 (9th Cir.2005) (en…