Opinion
No. 19-20283
03-23-2020
UNITED STATES OF AMERICA, Plaintiff-Appellee v. RAFAEL MAJANO MALDONADO, Defendant-Appellant
Summary Calendar Appeal from the United States District Court for the Southern District of Texas
USDC No. 4:18-CR-590-1 Before DAVIS, SMITH, and HIGGINSON, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Rafael Majano Maldonado appeals his conviction under 8 U.S.C. § 1326 for illegal presence in the United States. Citing Pereira v. Sessions, 138 S. Ct. 2105 (2018), he contends that his prior removals do not satisfy the removal element of § 1326 because the notice to appear in his original removal proceeding did not state the date, time, and place of the removal hearing. In United States v. Pedroza-Rocha, 933 F.3d 490, 497-98 (5th Cir. 2019), petition for cert. filed (U.S. Nov. 6, 2019) (No. 19-6588), we relied on Pierre-Paul v. Barr, 930 F.3d 684, 688-89 (5th Cir. 2019), petition for cert. filed (U.S. Dec. 16, 2019) (No. 19-779), to conclude that (1) a notice to appear that lacked the date and time of the removal hearing was not defective, (2) in the alternative, any defect was cured by the subsequent mailing of a notice of hearing, and (3) the purported defect was not jurisdictional. Additionally, we held that the defendant could not collaterally attack the notice to appear without first exhausting administrative remedies. Pedroza-Rocha, 933 F.3d at 498. Conceding that Pedroza-Rocha and Pierre-Paul foreclose his claim, Majano Maldonado raises it to preserve it for further review.
The Government has filed an unopposed motion for summary affirmance, which is proper 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). Because Majano Maldonado correctly concedes that his claim is foreclosed by Pierre-Paul and Pedroza-Rocha, the 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.