United States v. Lozano

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-20327
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

OMAR HERNANDEZ LOZANO,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CR-598-1

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

Omar Hernandez Lozano appeals his conviction for illegal reentry into
the United States after removal subsequent to a felony conviction, in violation
of 8 U.S.C. § 1326. He challenges the district court’s denial of his motion to
dismiss the indictment as invalid, arguing that his initial removal order was
void because the notice to appear in the removal proceedings failed to specify
a date and time for his removal hearing. He concedes that this challenge is

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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 4, 2020

Lyle W. Cayce
Clerk
Case: 19-20327 Document: 00515332537 Page: 1 Date Filed: 03/04/2020

No. 19-20327
2
foreclosed by United States v. Pedroza-Rocha, 933 F.3d 490, 496-98 (5th Cir.
2019), petition for cert. filed (U.S. Nov. 6, 2019) (No. 19-6588), and Pierre-Paul
v. Barr, 930 F.3d 684, 689-93 (5th Cir. 2019), petition for cert. filed (U.S. Dec.
16, 2019) (No. 19-779), but he wishes to preserve it for further review. The
Government has filed an unopposed motion for summary affirmance, agreeing
that the issue is foreclosed under 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). In Pedroza-Rocha, 933 F.3d at 496-98, this court applied
Pierre-Paul to conclude that the notice to appear was not deficient for failing
to specify a date and time 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. Thus, as Hernandez Lozano concedes, his arguments
are foreclosed. See id. 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 as unnecessary, and the judgment
of the district court is AFFIRMED.

Case: 19-20327 Document: 00515332537 Page: 2 Date Filed: 03/04/2020