     Case: 19-50534      Document: 00515218570         Page: 1    Date Filed: 12/02/2019




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

                                    No. 19-50534
                                                                                Fifth Circuit

                                                                              FILED
                                  Summary Calendar                     December 2, 2019
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk


                                                 Plaintiff-Appellant

v.

GAMALIEL CORNEJO-MARTINEZ, also known as Gamaliel Martinez
Cornejo,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:19-CR-892-1


Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Gamaliel Cornejo-Martinez was charged via indictment with illegal
reentry after removal, in violation of 8 U.S.C. § 1326, and with misuse of a
passport. The district court granted his motion to dismiss the illegal reentry
count, concluding that, because the notice to appear in Cornejo-Martinez’s
initial removal proceeding failed to specify a time and date for the 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50534       Document: 00515218570   Page: 2   Date Filed: 12/02/2019


                                  No. 19-50534

hearing, the immigration court lacked jurisdiction and the removal order was
void.    The Government appeals and has filed an unopposed motion for
summary disposition, arguing that the district court’s dismissal of the illegal
reentry count was erroneous in light of the decision in United States v. Pedroza-
Rocha, 933 F.3d 490 (5th Cir.), 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, we reversed the
district court’s dismissal of an indictment charging the defendant with a
violation of § 1326. The district court found that the notice to appear was
defective because it did not specify a date and time for the removal hearing and
concluded that the removal order was therefore void. Id. We determined that
the notice to appear was not defective, that the purported 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.
        The instant case is indistinguishable from Pedroza-Rocha. 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 district court’s order dismissing the illegal reentry count is
REVERSED, and the matter is REMANDED for further proceedings.




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