United States v. Moreno-Rodriguez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 20-50004
Summary Calendar

Consolidated with 20-50015

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

BENITO MORENO-RODRIGUEZ,

Defendant-Appellant

Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:19-CR-291-1
USDC No. 4:19-CR-327-1

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

Benito Moreno-Rodriguez entered a conditional guilty plea to illegal
reentry into the United States, reserving the right to challenge the district
court’s denial of his motion to dismiss the indictment. He now appeals the
denial of his motion to dismiss the indictment. He also appeals a separate

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
June 25, 2020

Lyle W. Cayce
Clerk
Case: 20-50004 Document: 00515466667 Page: 1 Date Filed: 06/25/2020

No. 20-50004
c/w No. 20-50015

2
revocation judgment but raises no challenge to the revocation of his supervised
release.
As to his illegal reentry conviction, Moreno-Rodriguez argues that his
prior removal was invalid because it followed a defective notice to appear that
failed to specify a date and hearing time. He further contends that he may
collaterally attack the removal proceeding without exhausting his
administrative remedies. He concedes that his arguments are 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), and he explains that he
has raised the arguments to preserve them for further review. The
Government has filed an unopposed motion for summary affirmance, agreeing
that the issues are foreclosed under Pedroza-Rocha. The Government,
alternatively, 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). Moreno-Rodriguez’s arguments are indeed foreclosed.
See Pedroza-Rocha, 933 F.3d at 496-98; see also Pierre-Paul v. Barr, 930 F.3d
684, 688-93 (5th Cir. 2019), cert. denied, 2020 WL 1978950 (U.S. Apr. 27, 2020)
(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 judgments of the district court are
AFFIRMED.

Case: 20-50004 Document: 00515466667 Page: 2 Date Filed: 06/25/2020