     Case: 19-50392      Document: 00515321101         Page: 1    Date Filed: 02/26/2020




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

                                                                                FILED
                                    No. 19-50392                        February 26, 2020
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

WILMER JOSE DE LA CRUZ-PUAC, also known as Wilmer De La Cruz-
Gonzalez, also known as Wilmer Jose De-La Cruz, also known as Jose De La
Cruz-Gonzalez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:18-CR-352-1


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Wilmer Jose De La Cruz-Puac appeals his conviction for illegal reentry,
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, after which the district court sentenced him to 10 months of
imprisonment and three years of supervised release.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50392      Document: 00515321101     Page: 2   Date Filed: 02/26/2020


                                  No. 19-50392

      As he did in the district court, De La Cruz-Puac argues that his prior
removal was invalid because it followed a defective notice to appear that failed
to specify a date and hearing time.         He further contends that he may
collaterally   attack   the   removal   proceeding    without    exhausting    his
administrative remedies. 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), petition for cert. filed (U.S. Dec. 16, 2019) (No. 19-779). He has
raised the arguments to preserve them for further review. The Government
filed an unopposed motion for summary affirmance because the arguments are
foreclosed by Pedroza-Rocha and Pierre-Paul. The Government, alternatively,
requests an extension of time to file its response 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). De La Cruz-Puac’s arguments are indeed foreclosed. See
Pedroza-Rocha, 933 F.3d at 496–98. 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.




                                        2
