     Case: 19-20582      Document: 00515419617         Page: 1    Date Filed: 05/18/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                    No. 19-20582                           May 18, 2020
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

FRANCISCO LOPEZ-BARRON, also known as Irenio Castro Barron,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:19-CR-249-1


Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Following a bench trial with stipulated facts, Francisco Lopez-Barron
was convicted for illegal reentry into the United States after removal, a
violation of 8 U.S.C. § 1326. He appeals, challenging the district court’s denial
of his motion to dismiss the indictment. Relying on Pereira v. Sessions, 138 S.
Ct. 2105 (2018), Lopez-Barron contends that the initial notice to appear in his
removal proceedings was defective, his removal was thus invalid, and it could


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-20582   Document: 00515419617     Page: 2   Date Filed: 05/18/2020


                                 No. 19-20582

not be used to support his illegal reentry conviction. Additionally, Lopez-
Barron asserts that he is excused from satisfying or has satisfied the § 1326(d)
requirements for collaterally attacking his removal order. He concedes that
his arguments are 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), cert. denied, 2020 WL
1978950 (U.S. Apr. 27, 2020) (No. 19-779), but raises them to preserve for
further possible review. The Government has filed an unopposed motion for
summary affirmance, agreeing that the issues are foreclosed by Pedroza-Rocha
and Pierre-Paul. Alternatively, the Government requests an extension of time
to file a 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). The arguments raised on appeal are foreclosed. See
Pedroza-Rocha, 933 F.3d at 496-98; Pierre-Paul, 930 F.3d at 689-93.
       Accordingly, the Government’s motion for summary affirmance is
GRANTED, and the judgment of the district court is AFFIRMED.                The
Government’s alternative motion for an extension of time to file its appellate
brief is DENIED.




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