     Case: 19-20382      Document: 00515289825         Page: 1    Date Filed: 01/29/2020




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

                                                                                FILED
                                    No. 19-20382                          January 29, 2020
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ODWAR GEOVANY PALOMEQUE-RAMOS, also known as Jose Lopez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:19-CR-24-1


Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Odwar Geovany Palomeque-Ramos appeals his conviction for illegal
reentry into the United States in violation of 8 U.S.C. § 1326. He entered a
conditional guilty plea, reserving the right to challenge the district court’s
denial of his motion to dismiss the indictment. Relying on Pereira v. Sessions,
138 S. Ct. 2105 (2018), Palomeque-Ramos argues that his prior removal order
was invalid because the notice to appear was defective for failing to include the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-20382      Document: 00515289825     Page: 2   Date Filed: 01/29/2020


                                   No. 19-20382

date and time of his removal hearing. Therefore, Palomeque-Ramos asserts
that his prior removal could not support a conviction for illegal reentry under
§ 1326.   He concedes that this challenge is 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 Pierre-Paul v. Barr, 930 F.3d 684 (5th Cir. 2019),
petition for cert. filed (U.S. Dec. 16, 2019) (No. 19-779), but he wishes to
preserve the issue for further review. The Government has filed an unopposed
motion for summary affirmance, agreeing that the issue is foreclosed under
Pedroza-Rocha and Pierre-Paul. Alternately, the Government 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). 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 Palomeque-Ramos’s arguments.               See id.
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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