     Case: 19-51101      Document: 00515440128         Page: 1    Date Filed: 06/03/2020




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

                                                                               FILED
                                    No. 19-51101                            June 3, 2020
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

VALENTE DURAN-GARCIA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:19-CR-183-1


Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Valente Duran-Garcia appeals his guilty-plea conviction for being found
illegally in the United States. He argues that the district court erred by
denying his motion to dismiss his indictment for lack of subject matter
jurisdiction.
       Relying on Pereira v. Sessions, 138 S. Ct. 2105 (2018), Duran-Garcia
argues that the notice to appear (NTA) that initiated his prior removal


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-51101     Document: 00515440128      Page: 2   Date Filed: 06/03/2020


                                  No. 19-51101

proceedings was defective because it did not specify a date and time for the
removal hearing. According to Duran-Garcia, the removal order upon which
his indictment is based is invalid because the NTA failed to specify a hearing
date and time, thereby depriving the immigration court of jurisdiction.
      The Government has filed a motion for summary affirmance, arguing
that Duran-Garcia’s 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), cert. denied, 2020
WL 1978950 (U.S. Apr. 27, 2020) (No. 19-779). Summary affirmance is proper
if the position of one party 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 Government is correct, and Duran-Garcia concedes, that his
arguments are foreclosed. See Pedroza-Rocha, 933 F.3d at 496-98; Pierre-Paul,
930 F.3d at 689-93. The NTA was not defective for failing to state a hearing
date and time, and the order of removal forming the basis of Duran-Garcia’s
indictment was not invalid for lack of jurisdiction. 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, 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.




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