     Case: 19-50653      Document: 00515300647         Page: 1    Date Filed: 02/06/2020




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


                                    No. 19-50653
                                                                              FILED
                                                                        February 6, 2020
                                  Summary Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

SERGIO LEIJA-MENDOZA, also known as Sergio Leija Mendoza, also known
as Sergio Leija, also known as Sergio Mendoza-Leija, also known as Sergio
Mendoza,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:18-CR-823-1


Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
       Sergio Leija-Mendoza appeals his conviction for illegal reentry into the
United States. He entered a conditional guilty plea, reserving the right to
challenge the district court’s denial of his motion to dismiss the indictment.
The district court sentenced him to 36 months of imprisonment and three years
of supervised release. Although Leija-Mendoza was recently released from


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50653      Document: 00515300647     Page: 2   Date Filed: 02/06/2020


                                   No. 19-50653

prison, his appeal of his conviction is not moot. See Spencer v. Kemna, 523 U.S.
1, 7-10 (1998); United States v. Lares-Meraz, 452 F.3d 352, 355 (5th Cir. 2006).
      Leija-Mendoza argues, as he did in the district court, that his prior
removal was invalid because it followed a defective notice to appear that failed
to specify a date and hearing time.         He further contends that he may
collaterally   attack   the   removal   proceeding    without    exhausting    his
administrative remedies. He concedes that his arguments are 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 he explains that he has raised the
arguments to preserve them for further review. The Government has filed an
unopposed motion for summary affirmance, agreeing that the issues are
foreclosed under Pedroza-Rocha. The Government, alternatively, requests an
extension of time to file its brief.
      Summary affirmance 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). Leija-Mendoza’s arguments are indeed foreclosed. See
Pedroza-Rocha, 933 F.3d at 496-98; see also Pierre-Paul v. Barr, 930 F.3d 684,
688-90 (5th Cir. 2019), petition for cert. filed (U.S. Dec. 16, 2019) (No. 19-779).
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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