     Case: 19-20822      Document: 00515469407         Page: 1    Date Filed: 06/29/2020




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

                                                                              FILED
                                    No. 19-20822                           June 29, 2020
                                  Summary Calendar                         Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

       Plaintiff-Appellee

v.

JUAN GABRIEL ORTUNO-OLEA,

       Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:19-CR-168-1


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Juan Gabriel Ortuno-Olea appeals his conviction for illegal reentry, in
violation of 8 U.S.C. § 1326. He entered a conditional guilty plea, reserving
the right to appeal the denial of his motion to dismiss the indictment. Ortuno-
Olea asserts that the indictment was invalid because the removal order was
void due to a defective notice to appear that failed to specify the date and time
for his removal hearing. He concedes that the issue is foreclosed by United


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-20822   Document: 00515469407     Page: 2   Date Filed: 06/29/2020


                                 No. 19-20822

States v. Pedroza-Rocha, 933 F.3d 490 (5th Cir. 2019), cert. denied, 2020 WL
2515686 (2020)and Pierre-Paul v. Barr, 930 F.3d 684 (5th Cir. 2019), cert.
denied, 2020 WL 1978950 (U.S. Apr. 27, 2020) (No. 19-779), but he wishes to
preserve it for further review. The Government has filed a motion for summary
affirmance, agreeing that the issue is foreclosed under Pedroza-Rocha and
Pierre-Paul. Alternatively, the Government requests an extension of time to
file a brief.
       In Pedroza-Rocha, we concluded that the notice to appear was not
rendered deficient because it did not specify a date or time for the removal
hearing, that any such alleged deficiency had not deprived the immigration
court of jurisdiction, and that the defendant could not collaterally attack his
underlying removal order without first exhausting his administrative
remedies. Pedroza-Rocha, 933 F.3d at 496-98. Because the Government’s
position “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), 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 is AFFIRMED.




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