                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                          February 10, 2020
                        _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                         No. 18-6192
                                                    (D.C. No. 5:18-CR-00114-R-1)
 FREDDY HERRERA-RIVAS, a/k/a Fredy                          (W.D. Okla.)
 Herrera, a/k/a Rubio Herrera,

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT *
                        _________________________________

Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
                  _________________________________

      Freddy Herrera-Rivas pleaded guilty to unlawfully reentering the United States

after removal under 8 U.S.C. § 1326(a). Herrera-Rivas later moved to withdraw his

guilty plea under Fed. R. Crim. P. 11, contending his original removal order was

invalid. The district court denied the motion to withdraw. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
                                  BACKGROUND

      Herrera-Rivas is a native and citizen of Mexico. On October 27, 2008, the

United States Department of Homeland Security served Herrera-Rivas with a Notice

to Appear (NTA), alleging he was subject to removal and ordering him to appear

before an immigration judge (IJ) at a date and time “to be set.” R., Vol. 1 at 20.

Herrera-Rivas signed the NTA, requesting an immediate hearing and waiving his

right to a 10-day period before his appearance. Herrera-Rivas also signed a

“Stipulated Request for Order [and] Waiver of Hearing,” in which he confirmed that:

(1) he had been served with the NTA; (2) he waived his right to a hearing and

requested his proceedings be conducted on the record; (3) he admitted the facts as

alleged in the NTA; (4) he conceded he was subject to removal; and (5) he did not

wish to seek relief from removal. Id. at 43-46. On November 12, 2008, an IJ ordered

his removal, and Herrera-Rivas was removed two days later.

      Herrera-Rivas returned to the United States in 2010 and was removed in 2012,

without objection, based on the 2008 removal order. He returned to the United States

again in 2013 and was indicted in 2018 of illegally reentering after removal in

violation of 8 U.S.C. § 1326(a). Herrera-Rivas initially pleaded guilty but, six weeks

later, moved to withdraw his plea on the ground “that an absolute defense to the

Indictment had been overlooked.” Id. at 9. In a proposed motion to dismiss attached

to the motion to withdraw, Herrera-Rivas sought to collaterally attack the validity of

his 2008 removal order under 8 U.S.C. § 1326(d). Specifically, in his proposed

motion to dismiss, Herrera-Rivas contended his 2008 removal order was void

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because his 2008 NTA failed to specify a date and time for his appearance and,

therefore, was defective under Pereira v. Sessions, 138 S. Ct. 2105 (2018). The

district court denied the motion to withdraw, concluding that the proposed motion to

dismiss lacked merit and that allowing Herrera-Rivas to withdraw his plea and file

the proposed motion to dismiss would waste judicial resources. The court later

entered its judgment and sentenced Herrera-Rivas to time served.

                                    DISCUSSION

      Herrera-Rivas’s sole contention on appeal is that the district court erred in

denying his motion to withdraw his guilty plea. We disagree.

      A. Standard of Review

      We review the “denial of a motion to withdraw a guilty plea . . . for abuse of

discretion” and “will not reverse a district court’s decision unless the defendant can

show that the court acted unjustly or unfairly.” United States v. Sanchez-Leon,

764 F.3d 1248, 1259 (10th Cir. 2014) (internal quotation marks omitted). “We

review factual findings for clear error” and “legal conclusions de novo, such as

whether the plea was made knowingly and voluntarily or whether counsel was

ineffective.” Id.

      B. Analysis

      When a guilty plea has been accepted by the district court, “[a] defendant may

withdraw a guilty plea before sentencing if he ‘can show a fair and just reason for

requesting the withdrawal.’” Id. at 1258 (quoting Fed. R. Crim. P. 11(d)(2)(B)). In

deciding a motion to withdraw a guilty plea, a district court should consider:

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“(1) whether the defendant has asserted his innocence, (2) prejudice to the

government, (3) delay in filing [the] motion, (4) inconvenience to the court,

(5) defendant’s assistance of counsel, (6) whether the plea is knowing and voluntary,

and (7) waste of judicial resources.” Id. (internal quotation marks omitted).

      Here, the district court determined Herrera-Rivas could not “establish a fair

and just reason for the withdrawal.” R., Vol. 1 at 104. In particular, the court found:

(1) he waived any challenge to the 2008 NTA and the IJ’s jurisdiction to order his

removal by stipulating to the allegations and seeking removal; and (2) Pereira

addressed a “narrow issue” and did not support invalidating the original removal

order. Id. at 103-04. Because the court found no merit to the proposed motion to

dismiss and because Herrera-Rivas did “not allege his innocence []or protest that his

plea was not knowing and voluntary,” the court found “permitting him to withdraw

his plea to file the motion would merely result in a wasting of judicial resources.” Id.

at 104. And because “[t]he remaining factors [did] not weigh heavily for or against

permitting [him] to withdraw his plea,” the court concluded he had failed to carry his

burden of demonstrating a fair and just reason for withdrawing his plea. Id. 1


      1
         The sole argument Herrera-Rivas advanced in his motion to dismiss was that
the 2008 removal order was invalid based upon Pereira. Because the district court
rejected the Pereira argument, and therefore determined a collateral attack on the
2008 removal order would be futile, the court declined to address the statutory factors
for a collateral attack. See generally 8 U.S.C. § 1326(d) (prohibiting a collateral
attack on a removal order unless the alien shows “(1) the alien exhausted any
administrative remedies that may have been available to seek relief against the order;
(2) the deportation proceedings at which the order was issued improperly deprived
the alien of the opportunity for judicial review; and (3) the entry of the order was
fundamentally unfair”). Herrera-Rivas has not contended the court erred in failing to
                                           4
      Herrera-Rivas contends the district court erred in determining there was not a

fair and just reason for allowing him to withdraw his plea because: (1) his original

NTA was invalid under Pereira because it failed to specify a date and time for the

hearing; (2) the IJ, therefore, lacked jurisdiction to order his removal in 2008; and

(3) “[b]ecause there was no valid removal order, [he] is not guilty as a matter of law

of unlawful reentry as defined by 8 U.S.C. § 1326(a).” Aplt. Opening Br. at 14. As

our recent decisions confirm, the district court correctly determined that Pereira was

inapposite and that Herrera-Rivas’s jurisdictional argument lacked merit. 2

      The Supreme Court held in Pereira that “[a] putative notice to appear that fails

to designate the specific time or place of a non-citizen’s removal proceedings is not a

‘notice to appear under section 1229(a), and so does not trigger the stop-time rule.’”

138 S. Ct. at 2113-14. But as we recently explained in Lopez-Munoz v. Barr,

941 F.3d 1013 (10th Cir. 2019), Pereira addressed only the narrow question of

“whether a defective notice to appear had interrupted a noncitizen’s continuous

presence in the United States” for purposes of the “stop-time rule” under 8 U.S.C.

§ 1229b(d)(1)(A) and “did not address the distinct question of whether a defect in the

notice to appear would preclude jurisdiction over the removal proceedings.”

Lopez-Munoz, 941 F.3d at 1018 (internal quotation marks omitted). We noted “other




evaluate these factors, and therefore, has waived appellate review of this issue.
See Rodas-Orellana v. Holder, 780 F.3d 982, 998 (10th Cir. 2015).
      2
       We therefore need not address the court’s conclusion that Herrera-Rivas also
waived his Pereira-based jurisdictional challenge to his original removal order.
                                           5
circuits have declined to treat Pereira as a limitation on an immigration judge’s

jurisdiction,” and we joined them “in declining to read Pereira as an implicit

pronouncement on an immigration judge’s jurisdiction.” Id. at 1018. We since have

“follow[ed] the lead of Lopez-Munoz and join[ed] the overwhelming chorus of our

sister circuits that have . . . rejected similar Pereira-based challenges.”

Martinez-Perez v. Barr, __ F.3d __, No. 18-9573, 2020 WL 253553, at *3 (10th Cir.

Jan. 17, 2020) (internal quotation marks omitted) (collecting cases). Moreover, we

have clarified that “the requirements relating to notices to appear are

non-jurisdictional, claim-processing rules.” Id.

       Based on our decisions in Lopez-Munoz and Martinez-Perez, Herrera-Rivas’s

“[r]eliance on Pereira is misplaced.” Lopez-Munoz, 941 F.3d at 1017. “While

[his] notice to appear was defective” because it failed to specify a date and time to

appear, “that did not divest the Immigration Court of jurisdiction.” Martinez-Perez,

__ F.3d at __, 2020 WL 253553, at *3. Because Herrera-Rivas’s proposed motion to

dismiss lacked merit, the district court properly found that permitting him to

withdraw his plea and file the proposed motion to dismiss would waste judicial

resources. Herrera-Rivas has not contested the court’s assessment of the other

factors for permitting the withdrawal of a guilty plea. Accordingly, Herrera-Rivas

has failed to show that the district court abused its discretion in denying his motion to

withdraw his guilty plea.




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                            CONCLUSION

For the foregoing reasons, the district court’s judgment is affirmed.


                                     Entered for the Court


                                     Nancy L. Moritz
                                     Circuit Judge




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