     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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.




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