Hernandez-Martinez

*698 MEMORANDUM **

Juan Manuel Hernandez-Martinez appeals his conviction for attempted reentry in violation of 8 U.S.C. § 1326 (a). We affirm.

Hernandez-Martinez argues that he was wrongfully convicted because he was continuously observed by United States Border Patrol agents from the moment he unlawfully crossed the border. Under the official restraint doctrine, an alien cannot be found to have entered the United States within the meaning of 8 U.S.C. § 1326 (a)(2) if he was under “constant observation” after having crossed the border. United States v. Pacheco-Medina, 212 F.3d 1162, 1165 (9th Cir.2000). Hernandez-Martinez, however, was not tried under a theory of his having “entered” or having been “found in” the United States. Rather, he was tried and convicted for having attempted to reenter the United States. The official restraint doctrine does not apply to the crime of attempted reentry. See United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1191 (9th Cir.2000) (en banc) (Gracidas-Ulibarry was never free from official restraint, but nonetheless convicted of attempted reentry).

Hernandez-Martinez next argues that the government’s indictment was flawed because it failed to…