Opinion
No. 19-50285
02-19-2020
UNITED STATES OF AMERICA, Plaintiff-Appellee v. JORGE LUIS ARMENDARIZ-TORRES, Defendant-Appellant
Summary Calendar Appeal from the United States District Court for the Western District of Texas
USDC No. 4:18-CR-641-1 Before SMITH, DENNIS, and DUNCAN, Circuit Judges. PER CURIAM:
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Jorge Luis Armendariz-Torres appeals his conviction for entry into the United States after deportation in violation of 8 U.S.C. § 1326. He entered a conditional guilty plea, reserving the right to challenge the district court's denial of his motion to dismiss the indictment. Armendariz-Torres argues that his prior removal could not support a conviction for illegal reentry under § 1326. Relying on Pereira v. Sessions, 138 S. Ct. 2105 (2018), he argues that his prior removal order was invalid because the notice to appear was defective for failing to include the date and time of his removal hearing. Armendariz-Torres concedes that this challenge is foreclosed by United States v. Pedroza-Rocha, 933 F.3d 490 (5th Cir. 2019), petition for cert. filed (U.S. Nov. 6, 2019) (No. 19-6588), and Pierre-Paul v. Barr, 930 F.3d 684 (5th Cir. 2019), petition for cert. filed (U.S. Dec. 16, 2019) (No. 19-779), but he wishes to preserve the issue for further review.
The Government has filed an unopposed motion for summary affirmance, agreeing that the issue is foreclosed under Pedroza-Rocha and Pierre-Paul. Alternately, the Government requests an extension of time to file its brief. Summary affirmance is appropriate if "the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case." Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
In Pedroza-Rocha, 933 F.3d at 492-93, the district court dismissed an indictment charging the defendant with a violation of § 1326 based on the reasoning that the removal order was void because the notice to appear failed to specify a date and time for the removal hearing. We reversed, concluding that the notice to appear was not defective, that the alleged defect would not deprive an immigration court of jurisdiction, and that § 1326(d) barred the defendant from collaterally attacking his removal order because he had failed to exhaust his administrative remedies. Id. at 496-98. Armendariz-Torres's arguments are foreclosed. See id.
Accordingly, the Government's motion for summary affirmance is GRANTED, the Government's alternative motion for an extension of time to file a brief is DENIED, and the judgment of the district court is AFFIRMED.