Martinez-Arrasola

MEMORANDUM **

Defendant-Appellant Gavino MartinezArasola appeals his jury conviction and 51-month sentence imposed for illegal reentry following removal in violation of 8 U.S.C. § 1326 . We affirm.

1. Appellant was not entitled to a jury instruction on the defense theory that the Attorney General’s consent to reapply for admission was not required, because that theory was not supported by law. See United States v. Mason, 902 F.2d 1434, 1438 (9th Cir.1990). As Appellant concedes, aliens previously removed on aggravated felony grounds cannot be admitted into the United States at any time without the advance consent of the Attorney General to reapply for admission, see 8 U.S.C. §§ 1182 (a)(9) (A) (i), (a)(9)(A)(iii) (2005). Applying the 2005 version of § 1182 does not result in an impermissible retroactive effect within the meaning of Landgraf v. USI Film Products, 511 U.S. 244 , 114 S.Ct. 1483 , 128 L.Ed.2d 229 (1994). It is Appellant’s choice to reenter the United States in 2005 that “subjeet[ed] him to the new and less generous regime, not a past act that he is helpless to undo.” Fernandez-Vargas v. Gonzales, — U.S.-, 126 S.Ct. 2422, 2424-25 , 165 L.Ed.2d 323 (2006).

2. For the…