     Case: 20-20013      Document: 00515480245         Page: 1    Date Filed: 07/07/2020




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

                                                                           FILED
                                    No. 20-20013                        July 7, 2020
                                  Summary Calendar
                                                                      Lyle W. Cayce
                                                                           Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

AGAPITO JARAMILLO-VASQUEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:19-CR-167-1


Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Agapito Jaramillo-Vasquez appeals his conviction under 8 U.S.C. § 1326
for unlawful presence in the United States. 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 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-


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 20-20013   Document: 00515480245     Page: 2   Date Filed: 07/07/2020


                                  No. 20-20013

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,
Jaramillo-Vasquez 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 Jaramillo-Vasquez 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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