     Case: 13-50926   Document: 00512820200        Page: 1   Date Filed: 10/30/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 13-50926                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                          October 30, 2014
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

SAMUEL QUEZADA ROJAS,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Western District of Texas


Before SMITH, BARKSDALE, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
      Samuel Quezada Rojas appeals his conviction under 8 U.S.C. § 1326(a)
for illegally reentering the United States after deportation on the grounds that
he was neither “found” nor “in” the United States as required by statute. We
AFFIRM.
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                                  No. 13-50926
                                        I.
      In 2009, Rojas was arrested by Immigration Enforcement Agents and
removed from the United States.       He subsequently reentered without the
consent of the Attorney General and worked in Denver, Colorado, until 2013,
when he boarded a bus for Mexico. The bus was stopped and boarded at the
Stanton Street Bridge Border Crossing at the Paso Del Norte Port of Entry in
El Paso, Texas, by a United States Border Patrol Agent conducting inspections
of outbound traffic. Upon questioning by the Agent, Rojas admitted he was in
the United States illegally. Rojas was charged with being “found in the United
States” illegally after being removed from the country in violation of 8 U.S.C.
§ 1326(a).
      During trial, Rojas filed a Rule 29 motion for judgment of acquittal
arguing that he was neither “found” nor “in” the United States at the time of
his arrest. See FED. R. CRIM. P. 29. The district court disagreed, found Rojas
guilty, and sentenced him to time served. Rojas appealed.
                                       II.
      “A previously deported alien is found in the United States when his
physical presence is discovered and noted by the immigration authorities, and
the knowledge of the illegality of his presence, through the exercise of diligence
typical of law enforcement authorities, can reasonably be attributed to the
immigration authorities.” United States v. Santana-Castellano, 74 F.3d 593,
598 (5th Cir. 1996) (citation and internal quotation marks omitted).
      Rojas cites to cases holding that one “who voluntarily approaches an INS
station cannot be said to have been found or discovered in the United States.”
United States v. Angeles-Mascote, 206 F.3d 529, 531 (5th Cir. 2000) (quoting
United States v. Canals-Jimenez, 943 F.2d 1284, 1287 (11th Cir. 1991))
(holding that an alien who approached the immigration officer upon arrival at


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                                       No. 13-50926
a U.S. airport was not “found” in the United States). He contends, therefore,
that he was not “found” because he admitted his unlawful status to the Agent.
       This argument, though colorable, is ultimately without merit.                       See
United States v. Felix-Hernandez 567 F. App’x 253 (5th Cir. 2014)
(unpublished). 1 The cases Rojas cites stand for the proposition that an alien is
not “found” if he voluntarily presents himself to immigration authorities when
seeking entry into the United States, but they do not reach the situation of an
individual, like Rojas, seeking to exit the country. We decline to extend the
“voluntary disclosure” rule to the circumstance of an alien attempting to exit. 2
       Rojas also contends that he was not “in” the United States within the
meaning of 8 U.S.C. § 1326. Citing dicta, he argues that to be “in” the United
States “require[s] both physical presence in the country as well as freedom
from official restraint.” Angeles-Mascote, 206 F.3d at 531. As the Ninth Circuit
describes it, “an alien is under ‘official restraint’ if, after crossing the border
without authorization, he is deprived of his liberty and prevented from going
at large within the United States.” United States v. Gonzalez-Torres, 309 F.3d
594, 598 (9th Cir. 2002) (internal quotation marks, alterations, and citation
omitted).     Although we have mentioned the official restraint doctrine in
previous cases, we have never explicitly adopted the doctrine. See, e.g., United
States v. Palomares-Villamar, 417 F. App’x 437, 439 (5th Cir. 2011)
(unpublished) (remarking that there “is no published Fifth Circuit authority
detailing the concept of official restraint in a § 1326 case”); Angeles-Mascote,




       1  Although Felix-Hernandez is not “controlling precedent,” it “may be [cited as]
persuasive authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH
CIR. R. 47.5.4).

       2 For this reason, we need not reach the question of whether, by waiting for the Agent
to board the bus and actually ask him for his status, Rojas truly “voluntarily disclosed” within
the meaning of these cases.
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                                   No. 13-50926
206 F.3d at 531; United States v. Cardenas-Alvarez, 987 F.2d 1129, 1133 (5th
Cir. 1993).
      We need not decide whether the official restraint doctrine applies in this
circuit because even if it does, Rojas does not fall within the “official restraint”
parameters. 3   As with the interpretation of “found,” the courts that have
adopted the official restraint doctrine have applied it only to persons entering
the country, not to persons leaving. See Cardenas-Alvarez, 987 F.2d at 1133
(“Most courts who have decided what conduct comprises an ‘entry’ have
concluded that physical presence in the country is required, as well as freedom
from official restraint.”).   Rojas entered the United States and worked in
Colorado until departing for Mexico.         There is no assertion that he was
deprived of his liberty upon entry or that he was prevented from going at large
within the country. Accordingly, the official restraint doctrine, even assuming
arguendo that it applies in general in this circuit, is inapposite here.
      AFFIRMED.




      3 For this reason, we do not reach the question of whether Rojas preserved this
argument in the district court.
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