Case: 19-20777      Document: 00515545039          Page: 1     Date Filed: 08/28/2020




            United States Court of Appeals
                 for the Fifth Circuit                               United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                                                      August 28, 2020
                                 No. 19-20777                          Lyle W. Cayce
                               Summary Calendar                             Clerk



 United States of America,

                                                             Plaintiff—Appellee,

                                      versus

 Luis Leon Pina,

                                                         Defendant—Appellant.


                 Appeal from the United States District Court
                     for the Southern District of Texas
                           USDC No. 4:19-CR-81-1


 Before Clement, Higginson, and Engelhardt, Circuit Judges.
 Per Curiam:*
        Luis Leon Pina appeals his conviction under 8 U.S.C. § 1326 for
 illegally reentering the United States following deportation after conviction
 of a felony. Citing Pereira v. Sessions, 138 S. Ct. 2105 (2018), he contends that
 his prior removal does not satisfy the removal element of § 1326 because the


        *
          Pursuant to 5th Circuit Rule 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 opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 19-20777       Document: 00515545039         Page: 2   Date Filed: 08/28/2020




                                    No. 19-20777


 notice to appear did not state the date or time of the removal hearing. In
 United States v. Pedroza-Rocha, 933 F.3d 490, 497-98 (5th Cir. 2019), cert.
 denied, 2020 WL 2515686 (U.S. May 18, 2020) (No. 19-6588), we relied on
 Pierre-Paul v. Barr, 930 F.3d 684, 688-89 (5th Cir. 2019), cert. denied, 2020
 WL 1978950 (U.S. Apr. 27, 2020) (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) any defect was cured by the subsequent service 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, Pina
 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 Pina 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.




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