     Case: 19-50525      Document: 00515335255         Page: 1    Date Filed: 03/06/2020




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

                                                                                  FILED
                                    No. 19-50525                              March 6, 2020
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

LUIS FERNANDO RAMIREZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:18-CR-729-1


Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Luis Fernando Ramirez appeals his conviction for illegal reentry into the
United States, a violation of 8 U.S.C. § 1326. He challenges the district court’s
denial of his motion to dismiss the indictment, which he reserved the right to
appeal when he conditionally pleaded guilty. See FED. R. CRIM. P. 11(a)(2).
Relying on Pereira v. Sessions, 138 S. Ct. 2105 (2018), Ramirez argues that his
prior removal order was invalid because the notice to appear (NTA) was


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50525     Document: 00515335255      Page: 2    Date Filed: 03/06/2020


                                  No. 19-50525

defective for failing to include the date and time of his removal hearing.
Ramirez therefore 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 raises the issue to preserve it for further review. The Government has filed
an unopposed motion for summary affirmance, agreeing that the issue is
foreclosed by Pedroza-Rocha and Pierre-Paul.            In the alternative, the
Government requests an extension of time to file a 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). The parties are correct that Ramirez’s arguments are
foreclosed.   See Pedroza-Rocha, 933 F.3d at 492-98.             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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