Estrella-Acosta

MEMORANDUM **

Salvador Estrella-Aeosta appeals from his conviction and the 21-month sentence imposed for attempted entry after deportation, in violation of 8 U.S.C. § 1326 . We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

Estrella-Aeosta first contends that the district court erred by refusing to dismiss his indictment because the indictment failed to allege an overt act that was a substantial step, an essential element of his offense of attempted entry. This contention is foreclosed. See United States v. Resendiz-Ponce, - U.S. -, 127 S.Ct. 782, 788 , 166 L.Ed.2d 591 (2007).

Estrella-Aeosta next contends that the district court erred when it failed to dismiss his indictment because of improper grand jury instructions. Estrella-Aeosta acknowledges that United States v. Navarro-Vargas, 408 F.3d 1184, 1204-08 (9th Cir.2005) (en banc), forecloses all of his grand jury challenges, except for his challenge to the instruction related to potential punishment for a crime. However, we have held that this grand jury instruction is constitutional. See United States v. Cortez-Rivera, 454 F.3d 1038, 1040-41 (9th Cir.2006). Accordingly, his contention is…