     Case: 19-50269      Document: 00515251192         Page: 1    Date Filed: 12/30/2019




                        REVISED December 30, 2019

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

                                    No. 19-50269                          FILED
                                  Summary Calendar                December 27, 2019
                                                                     Lyle W. Cayce
                                                                          Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CIRILO HERNANDEZ-REBOLLAR, also known as Cirilio Hernandez-
Rebollar, also known as Ciril Hernandez, also known as Cirrilo Hernandez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:18-CR-311-1


Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Cirilo Hernandez-Rebollar appeals his conviction of illegal reentry into
the United States. He entered a conditional guilty plea to the indictment,
reserving the right to challenge the district court’s denial of his motion to




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50269      Document: 00515251192    Page: 2   Date Filed: 12/30/2019


                                  No. 19-50269

dismiss the indictment. The district court sentenced him to 30 months of
imprisonment and three years of supervised release.
      Now, Hernandez-Rebollar asserts, as he did in the district court, that his
prior removal was invalid because the notice to appear which commenced the
proceeding was defective for failing to specify a date and time for his removal
hearing. He contends therefore that the removal order is void and that the
Government cannot establish an essential element of the illegal reentry offense
under 8 U.S.C. § 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), 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.
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).
      Pedroza-Rocha concluded that the notice to appear was not deficient for
failing to specify a date and time for the hearing, that any such alleged
deficiency had not deprived the immigration court of jurisdiction, and that
Pedroza-Rocha could not collaterally attack his notice to appear without first
exhausting his administrative remedies. 933 F.3d at 496–98. Gomez-Lopez’s
arguments are, as he concedes, foreclosed by this case. See id; see also Pierre-
Paul v. Barr, 930 F.3d 684, 688-90 (5th Cir. 2019).             Accordingly, the
Government’s      motion   for   summary    affirmance     is   GRANTED,      the




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    Case: 19-50269   Document: 00515251192    Page: 3   Date Filed: 12/30/2019


                               No. 19-50269

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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