United States v. Maldonado

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-20283
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RAFAEL MAJANO MALDONADO,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CR-590-1

Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM:
*

Rafael Majano Maldonado appeals his conviction under 8 U.S.C. § 1326
for illegal presence in the United States. Citing Pereira v. Sessions, 138 S. Ct.
2105 (2018), he contends that his prior removals do not satisfy the removal
element of § 1326 because the notice to appear in his original removal
proceeding did not state the date, time, and place of the removal hearing. In
United States v. Pedroza-Rocha, 933 F.3d 490, 497-98 (5th Cir. 2019), petition

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
March 23, 2020

Lyle W. Cayce
Clerk
Case: 19-20283 Document: 00515355536 Page: 1 Date Filed: 03/23/2020

No. 19-20283
2
for cert. filed (U.S. Nov. 6, 2019) (No. 19-6588), we relied on Pierre-Paul v. Barr,
930 F.3d 684, 688-89 (5th Cir. 2019), petition for cert. filed (U.S. Dec. 16, 2019)
(No. 19-779), to conclude that (1) a notice to appear that lacked the date and
time of the removal hearing was not defective, (2) in the alternative, any defect
was cured by the subsequent mailing of a notice of hearing, and (3) the
purported defect was not jurisdictional. Additionally, we held that the
defendant could not collaterally attack the notice to appear without first
exhausting administrative remedies. Pedroza-Rocha, 933 F.3d at 498.
Conceding that Pedroza-Rocha and Pierre-Paul foreclose his claim, Majano
Maldonado raises it to preserve it for further review.
The Government has filed an unopposed motion for summary
affirmance, which is proper 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). Because Majano Maldonado correctly concedes that his claim
is foreclosed by Pierre-Paul and Pedroza-Rocha, the 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.
Case: 19-20283 Document: 00515355536 Page: 2 Date Filed: 03/23/2020