United States v. Rene Garcia-Montejo ( 2018 )

Case: 18-40051 Document: 00514624963 Page: 1 Date Filed: 08/31/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 18-40051
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
August 31, 2018
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
RENE GARCIA-MONTEJO, also known as Bibian Garcia-Montejo,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:17-CR-519-1
Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
Rene Garcia-Montejo pleaded guilty to being found in the United States
after being previously removed. The district court sentenced Garcia-Montejo
to 46 months of imprisonment and three years of supervised release. On
appeal, Garcia-Montejo argues that his guilty plea is invalid because the
district court failed to comply with Federal Rule of Criminal Procedure
11(b)(1)(G) by failing to address the “official restraint” element of the offense
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-40051 Document: 00514624963 Page: 2 Date Filed: 08/31/2018
No. 18-40051
during the plea colloquy. He contends that because he was under constant
surveillance prior to being apprehended, he was never free from official
restraint and could not have committed the charged offense. Because Garcia-
Montejo did not raise this issue before the district court, our review is for plain
error. United States v. Vonn, 535 U.S. 55, 58-59 (2002).
In United States v. Rojas, 770 F.3d 366, 368 (5th Cir. 2014), we stated
that we had mentioned but never explicitly adopted the official restraint
doctrine. We ordinarily do not find plain error where we have not addressed
an issue previously. United States v. Evans, 587 F.3d 667, 671 (5th Cir. 2009).
The district court’s admonishment contained all of the elements of a 18 U.S.C.
§ 1326 violation, and Garcia-Montejo indicated that he understood those
elements. See United States v. Flores-Peraza, 58 F.3d 164, 166 (5th Cir. 1995).
The admonishments provided by the district court were sufficient under Rule
11(b)(1)(G). See United States v. Lujano-Perez, 274 F.3d 219, 224 (5th Cir.
2001). Garcia-Montejo has not shown that the district court plainly erred
under Rule 11(b)(1)(G). See Puckett v. United States, 556 U.S. 129, 135 (2009).
AFFIRMED.
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