     Case: 19-50671      Document: 00515233754         Page: 1    Date Filed: 12/12/2019




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

                                    No. 19-50671                            FILED
                                  Summary Calendar                  December 12, 2019
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellant

v.

FRANCISCO ESCOBEDO-SANTILLAN,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:19-CR-1050-1


Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Francisco Escobedo-Santillan was indicted under 8 U.S.C. § 1326 for
illegally reentering the United States. Citing Pereira v. Sessions, 138 S. Ct.
2105 (2018), the district court granted Escobedo-Santillan’s motion to dismiss
the indictment based on the conclusion that the notice to appear in his
underlying removal proceedings failed to specify a time and date and that,
therefore, the immigration court lacked jurisdiction and the removal order was


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50671      Document: 00515233754      Page: 2   Date Filed: 12/12/2019


                                    No. 19-50671

void.    The Government appeals and has filed an unopposed motion for
summary disposition, arguing that the district court’s dismissal of the
indictment was erroneous in light of our recent decision in United States v.
Pedroza-Rocha, 933 F.3d 490 (5th Cir. 2019), petition for cert. filed (U.S. Nov.
6, 2019) (No. 19-6588). Alternatively, the Government moves for an extension
of time in which to file a brief.
        Summary disposition 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 notice to appear was defective because it did
not specify a date and time for the removal hearing and that, therefore, the
removal order was void. Our court 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.
        Pedroza-Rocha forecloses Escobedo-Santillan’s arguments.           See id.
Accordingly, the Government’s motion for summary disposition is GRANTED,
the Government’s alternative motion for an extension of time to file a brief is
DENIED, the judgment of the district court is REVERSED, and this matter is
REMANDED for further proceedings.




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