     Case: 19-50483      Document: 00515208119         Page: 1    Date Filed: 11/21/2019




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

                                    No. 19-50483
                                                                             Fifth Circuit

                                                                           FILED
                                  Summary Calendar                 November 21, 2019
                                                                      Lyle W. Cayce
UNITED STATES OF AMERICA,                                                  Clerk


                                                 Plaintiff-Appellee

v.

JUAN RAMON PINEDA-FERNANDEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:18-CR-856-1


Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Juan Ramon Pineda-Fernandez 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
dismiss the indictment.
       Now, Pineda-Fernandez asserts, as he did in the district court, that his
prior removal was invalid because the notice to appear which commenced 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50483      Document: 00515208119    Page: 2   Date Filed: 11/21/2019


                                 No. 19-50483

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), 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.
Alternativley, 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.      Pineda-
Fernandez’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
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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