United States v. Olivas-Heredia

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-51180
Summary Calendar

Consolidated with 19-51182

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MIGUEL ANGEL OLIVAS-HEREDIA,

Defendant-Appellant

Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:18-CR-779-1
USDC No. 4:19-CR-298-1

Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM:
*

Miguel Angel Olivas-Heredia appeals his conviction for illegal reentry
after deportation, in violation of 8 U.S.C. § 1326, and the revocation of his
supervised release. He challenges the district court’s denial of his motion to
dismiss the indictment, arguing that it was invalid because the notice to

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
July 17, 2020

Lyle W. Cayce
Clerk
Case: 19-51180 Document: 00515493828 Page: 1 Date Filed: 07/17/2020

No. 19-51180
2
appear in his removal proceedings was defective because it did not specify a
time and date for his removal hearing and that the removal order was thus
void. He concedes that this challenge is foreclosed by United States v. Pedroza-
Rocha, 933 F.3d 490 (5th Cir. 2019), cert. denied, 2020 WL 2515686 (U.S. May
18, 2020) (No.19-6588), but he wishes to preserve it for further review. The
Government has filed unopposed motions for summary affirmance in both
cases, 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, a similar § 1326 appeal, we concluded
that the notice to appear was not deficient because it lacked a specific date 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. Olivas-Heredia’s arguments are, as he concedes, foreclosed by
Pedroza-Rocha. See id. Accordingly, the Government’s motions for summary
affirmance are GRANTED, the Government’s alternative motions for an
extension of time to file a brief are DENIED as unnecessary, and the judgments
of the district court are AFFIRMED.
Case: 19-51180 Document: 00515493828 Page: 2 Date Filed: 07/17/2020