United States v. Silva-Villegas

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50766
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

FERNANDO SILVA-VILLEGAS, also known as Fernando Viliegas-Silva, also
known as Fernando Silva Villegas, also known as Fernando Villegas, also
known as Fernando Silva,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No.
5:18-CR- 889- 1

Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:
*

Fernando Silva-Villegas appeals his conviction for illegal reentry into the
United States following deportation, a violation of 8 U.S.C. § 1326. In his guilty
plea, Silva-Villegas reserved the right to appeal the district court’s denial of
his motion to dismiss the indictment. See F
ED. R. CRIM. P. 11(a)(2). Relying
on Pereira v. Sessions, 138 S. Ct. 2105 (2018), as he did in his motion to dismiss

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
May 29, 2020

Lyle W. Cayce
Clerk
Case: 19-50766 Document: 00515433045 Page: 1 Date Filed: 05/29/2020

No. 19-50766
2
the indictment, Silva-Villegas argues that his prior removal order was invalid
because the notice to appear was defective for failing to include the date and
time of his removal hearing. According to Silva-Villegas, his prior removal
therefore could not support a conviction for illegal reentry under § 1326, and
the removal proceeding was fundamentally unfair requiring dismissal of the
instant indictment. Silva-Villegas concedes that his challenges are 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), and Pierre-Paul v. Barr, 930 F.3d
684 (5th Cir. 2019), petition for cert. filed (U.S. Dec. 16, 2019) (No. 19-779), but
he raises the issues to preserve them for further review. The Government has
filed an unopposed motion for summary affirmance, agreeing that the issues
are foreclosed by Pedroza-Rocha and Pierre-Paul.
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). The parties are correct that Silva-Villegas’s arguments
are foreclosed. See Pedroza-Rocha, 933 F.3d at 492-98. 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.
Case: 19-50766 Document: 00515433045 Page: 2 Date Filed: 05/29/2020