United States v. Melendez-Wisenthal

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-20333
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JAVIER ENRIQUE MELENDEZ-WISENTHAL, also known as Robert Diaz
Isaguirre, also known as Luis A. Aguillar, also known as Marco Antonio
Gonzalez,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CR-387-1

Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM:
*

Javier Enrique Melendez-Wisenthal appeals his conviction for illegal
reentry, in violation of 8 U.S.C. § 1326. He entered a conditional guilty plea,
reserving the right to appeal the denial of his motion to dismiss the indictment.
Melendez-Wisenthal asserts that the indictment was invalid because the
removal order was void due to a defective notice to appear that failed to specify

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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 13, 2020

Lyle W. Cayce
Clerk
Case: 19-20333 Document: 00515343741 Page: 1 Date Filed: 03/13/2020

No. 19-20333
2
the date and time for his removal hearing. He concedes that the issue is
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 wishes to preserve it for further review. The Government has filed
a motion for summary affirmance, agreeing that the issue is foreclosed under
Pedroza-Rocha and Pierre-Paul. Alternatively, the Government requests an
extension of time to file a brief.
In Pedroza-Rocha, we concluded that the notice to appear was not
rendered deficient because it did not specify a date or time for the removal
hearing, that any such alleged deficiency had not deprived the immigration
court of jurisdiction, and that Pedroza-Rocha could not collaterally attack his
underlying removal order without first exhausting his administrative
remedies. Pedroza-Rocha, 933 F.3d at 496-98. Because the Government’s
position “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 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 is AFFIRMED.
Case: 19-20333 Document: 00515343741 Page: 2 Date Filed: 03/13/2020