     Case: 19-50574      Document: 00515277467         Page: 1    Date Filed: 01/20/2020




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

                                                                                 FILED
                                    No. 19-50574                           January 20, 2020
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

EDUARDO AVENDANO-CHACON, also known as John Doe, also known as
Eduardo Avendano Chacon, also known as Chacon Eduardo, also known as
Eduardo Avendancochacon, also known as Rosendo Avendano-Chacon, also
known as "DO",

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:18-CR-937-1


Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Eduardo Avendano-Chacon 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. The district court sentenced him to 10 months of
imprisonment and two years of non-reporting supervised release.

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50574      Document: 00515277467   Page: 2   Date Filed: 01/20/2020


                                 No. 19-50574

      Now, Avendano-Chacon 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.
Alternatively, 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, we concluded that a 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. Avendano-
Chacon’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), petition for
cert. filed (U.S. Dec. 16, 2019) (No. 19-779). 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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