United States v. Jose Banegas-Gomez ( 2019 )

Case: 18-40998 Document: 00515212209 Page: 1 Date Filed: 11/25/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 18-40998
Fifth Circuit
FILED
Summary Calendar November 25, 2019
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee,
v.
JOSE JAVIER BANEGAS-GOMEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:18-CR-608-1
Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
Jose Javier Banegas-Gomez appeals his conviction for illegal reentry
after removal on the ground that his guilty plea was unknowing and
involuntary. Banegas-Gomez complains that he was unaware when he pleaded
guilty that his petition for review of his underlying removal order was still
pending in the Second Circuit Court of Appeals and that his removal violated
that circuit’s policy against executing a removal order while a motion for a stay
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-40998 Document: 00515212209 Page: 2 Date Filed: 11/25/2019
No. 18-40998
of removal is pending. See Efstathiadis v. Holder, 752 F.3d 591, 599 n.5 (2d
Cir. 2014).
As Banegas-Gomez concedes, this issue was not raised in the district
court and is thus reviewed only for plain error. See Puckett v. United States,
556 U.S. 129, 135 (2009). In considering whether an error is clear or obvious,
we must decide whether controlling precedent has reached the issue in
question or whether the legal question would be subject to reasonable dispute.
United States v. Fields, 777 F.3d 799, 802 (5th Cir. 2015).
Banegas-Gomez has not identified any controlling Fifth Circuit or
Supreme Court precedent on the issue whether a defendant pleading guilty to
illegal reentry must know that his removal violated the Second Circuit’s
forbearance policy, nor has Banegas-Gomez shown that it is beyond reasonable
dispute that such knowledge is required. See id. Accordingly, Banegas-Gomez
has failed to demonstrate that the district court clearly or obviously erred in
accepting his guilty plea to illegal reentry despite his lack of knowledge that
his underlying removal had been executed in violation of the Second Circuit’s
forbearance policy. See Puckett, 556 U.S. at 135.
The judgment of the district court is AFFIRMED.
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