United States v. Yair Hernandez-Hinojosa , 584 F. App'x 204 ( 2014 )

Case: 13-51198 Document: 00512836820 Page: 1 Date Filed: 11/14/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 13-51198
Fifth Circuit
FILED
Summary Calendar November 14, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
YAIR ENRIQUE HERNANDEZ-HINOJOSA, also known as Juan Carlos
Lopez-Martinez,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:13-CR-1675-1
Before DAVIS, CLEMENT and COSTA, Circuit Judges.
PER CURIAM: *
Yair Enrique Hernandez-Hinojosa appeals his guilty plea conviction of
illegal reentry, in violation of 8 U.S.C. § 1326. Hernandez-Hinojosa argues
that the district court inadequately advised him of the nature of the offense
and that the factual basis was insufficient to support his conviction.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 13-51198 Document: 00512836820 Page: 2 Date Filed: 11/14/2014
No. 13-51198
Because Hernandez-Hinojosa did not raise these arguments below, we
review them for plain error. See United States v. Vonn, 535 U.S. 55, 59 (2002).
To show plain error, the appellant must show a forfeited error that is clear or
obvious and that affects his substantial rights. Puckett v. United States, 556
U.S. 129, 135 (2009). If the appellant makes such a showing, this court has
the discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.The district court properly advised Hernandez-Hinojosa regarding the
elements of a conviction under § 1326. See United States v. Flores-Peraza, 58
F.3d 164, 166 (5th Cir. 1995). Hernandez-Hinojosa has not demonstrated that
the district court plainly erred by not further advising him that illegal reentry
requires both physical presence in the United States and freedom from official
restraint. See United States v. Ellis, 564 F.3d 370, 377-78 (5th Cir. 2009).
Hernandez-Hinojosa contends that he was not free from official restraint
at the time he committed the instant offense because he was under constant
governmental surveillance. There is no published Fifth Circuit authority
detailing the concept of official restraint in a § 1326 case. Accordingly, if the
district court did err in accepting the factual basis in this case, the error was
neither clear nor obvious. See Ellis, 564 F.3d at 377-78. Additionally, even if
it is assumed that constant governmental surveillance comprises official
restraint for purposes of an illegal reentry offense under § 1326, Hernandez-
Hinojosa’s argument fails because the record does not demonstrate that he was
under such surveillance.
AFFIRMED.
2