United States v. Villalonga-Herrera

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50296
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

DANIEL VILLALONGA-HERRERA, also known as Daniel Villonga Herrera,
also known as Daniel Villonga Herra,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:18-CR-279-1

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

Daniel Villalonga-Herrera pled guilty to illegal reentry and was
sentenced to time served and one year of supervised release. Although he was
released from prison, his appeal of his conviction is not moot. See Spencer v.
Kemna, 523 U.S. 1, 7–8 (1998); United States v. Lares-Meraz, 452 F.3d 352,
355 (5th Cir. 2006).

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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 10, 2020

Lyle W. Cayce
Clerk
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No. 19-50296
2
Villalonga-Herrera’s guilty plea was conditional, reserving the right to
challenge the district court’s denial of a motion to dismiss the indictment. On
appeal he reiterates his argument that the immigration court in his initial
removal proceeding never acquired jurisdiction because his notice of removal
failed to specify a date and time of appearance. As a result, he contends, the
removal order entered against him is void, which left the Government unable
to prove an essential element of the offense. As to the strictures of 8 U.S.C.
§ 1326(d), which limits an alien’s ability to collaterally attack a removal order,
Villalonga-Herrera asserts that it poses no obstacle because his challenge is
jurisdictional in nature and because, given the state of the law at the time of
his initial removal proceeding, he is excused from meeting the requirements of
Section 1326(d)(1) and (2).
Villalonga-Herrera concedes that these arguments 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). We generally agree. There too the
defendant argued that failure to include date-and-time information in a notice
to appear is a jurisdictional defect, and we found this argument to be both
without merit and barred by Section 1326(d) for failure to exhaust. 933 F.3d
at 496–98. Villalonga-Herrera’s identical and similarly unexhausted
jurisdictional argument accordingly fails for the same reasons.
Pedroza-Rocha does not consider a contention such as made by
Villalonga-Herrera that he can escape the strictures of Section 1326(d)(1) and
(2) under a “futility” exception, but other authority shows this argument to be
of no force here. An alien “must prove all three prongs” of Section 1326(d) to
make a successful challenge to a prior removal order. United States v.
Cordova-Soto, 804 F.3d 714, 719 (5th Cir. 2015). In claiming fundamental
unfairness under the final prong of Section 1326(d), Villalonga-Herrera relies
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solely on the jurisdictional argument that Pedroza-Rocha foreclosed. Any
argument as to prongs one and two is therefore moot. See United States v.
Mendoza-Mata, 322 F.3d 829, 832 (5th Cir. 2003).
We DENY the Government’s motion for summary affirmance, DENY as
unnecessary its alternative motion for an extension of time to file a brief, and
AFFIRM the judgment of the district court.

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