Garcia-Cano

MEMORANDUM ***

Sergio Manuel Garcia-Cano appeals his conviction and sentence for unlawful reentry, in violation of 8 U.S.C. § 1326 . At trial, Border Patrol Agent John E. Doppler testified for the government that he “found” Garcia-Cano in the custody of the Santa Cruz County Sheriffs Department. Garcia-Cano timely requested that a jury instruction on official restraint be given. The trial judge refused to give the proposed instruction, finding that there was no evidence that Garcia-Cano was under official restraint.

Although Garcia-Cano did not raise the failure to instruct issue in his opening brief, the government raised the issue in its response and Garcia-Cano addressed the issue in his reply brief. “[W]e will not ordinarily consider matters on appeal that are not specifically and distinctly raised and argued in appellant’s opening brief.” International Union of Bricklayers & Allied Craftsman Local Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir.1985). But, “[w]e have discretion in certain cases to consider improperly presented claims of error, where the appellee is not misled and the issue has been fully explored.” Id. at 1404 n. 4. Because the appellee…