     Case: 10-40602 Document: 00511408056 Page: 1 Date Filed: 03/11/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           March 11, 2011
                                     No. 10-40602
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

GUADALUPE PALOMARES-VILLAMAR,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                             USDC No. 1:09-CR-1330-1


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       Guadalupe Palomares-Villamar (Palomares) appeals his guilty-plea
conviction and sentence for being unlawfully present in the U.S. after having
been previously deported, in violation of 8 U.S.C. § 1326. For the first time on
appeal, Palomares argues that the factual basis was insufficient to support the
plea. We review the argument for plain error. 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

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                      No. 10-40602

States, 129 S. Ct. 1423, 1429 (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.
       A conviction under § 1326 requires proof of the following elements:
1) alienage, 2) arrest and deportation, 3) reentry into or unlawful presence in the
United States, and 4) lack of the Attorney General’s consent to reenter. United
States v. Flores-Peraza, 58 F.3d 164, 166 (5th Cir. 1995). This court has held
that illegal reentry or unlawful presence requires both physical presence in the
country and freedom from official restraint.           See United States v. Morales-
Palacios, 369 F.3d 442, 446 (5th Cir. 2004).
       Palomares contends that he was not free from official restraint at the time
he committed the instant offense because he was under constant governmental
surveillance.1 Even if we were to accept this premise as true– that governmental
surveillance is legally equivalent to official restraint–which, we do not, we would
still hold that there was no plain error. There is no published Fifth Circuit
authority detailing the concept of official restraint in a § 1326 case. Accordingly,
in this case, if the district court erred in accepting Palomares’s factual basis it
was neither clear or obvious. See United States v. Valles, 484 F.3d 745, 759 (5th
Cir. 2007). Additionally, even if it is assumed that constant governmental
surveillance comprises official restraint for purposes of an illegal reentry offense
under § 1326, Palomares’s argument fails because the record does not
demonstrate that he was under such surveillance.
       Palomares asks this court to take judicial notice of the fact that a private
company has been subcontracted to conduct video surveillance of the entire area
in which he was discovered, but the Government disputes that the area is under
video surveillance. Because the question whether there was video surveillance



       1
       To bolster his argument, Palomares’s brief relies on several cases from the Ninth and
Second Circuits. These decisions, however, are not binding precedent in our circuit.

                                             2
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                                   No. 10-40602

of the entire area in question at the time Palomares committed the instant
offense is one of fact, it cannot be plain error. See United States v. Lopez, 923
F.2d 47, 50 (5th Cir. 1991). Further, the website to which Palomares directs this
court indicates only that there is video surveillance of the lanes of traffic, as well
as the administrative buildings and their adjacent parking lots, on of each of the
three international bridges in Brownsville; it does not establish that the areas
between the bridges, including the unspecified area in which Palomares was
discovered, is under video surveillance or was on the date on which Palomares
committed the instant offense. Consequently, even if this court were to take
judicial notice of his evidence, Palomares has not demonstrated that the district
court’s acceptance of the factual basis for his plea was plain error. See Puckett,
129 S. Ct. at 1429.
      Palomares additionally appeals the sentence imposed, challenging the
district court’s calculation of his criminal history score. As the Government
urges, the argument is barred by the waiver-of-appeal provision in the plea
agreement, which waiver was knowing and voluntary. See United States v.
Portillo, 18 F.3d 290, 292 (5th Cir. 1994); United States v. Bond, 414 F.3d 542,
544 (5th Cir. 2005); F ED. R. C RIM. P. 11(b)(1)(N).
      The district court’s judgment is AFFIRMED.




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