United States v. Gutierrez-Murillo

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-20393
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

HORACIO GUTIERREZ-MURILLO,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CR-563-1

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

Horacio Gutierrez-Murillo appeals his conviction for illegally reentering
the United States after being removed. He challenges the district court’s
denial of his motion to dismiss the indictment. He argues that the indictment
was invalid because the prior removal order was void due to a defective notice
to appear that failed to specify a time and date for his removal hearing. He
concedes that the issue is foreclosed by Pierre-Paul v. Barr, 930 F.3d 684, 689-

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
February 7, 2020

Lyle W. Cayce
Clerk
Case: 19-20393 Document: 00515301994 Page: 1 Date Filed: 02/07/2020

No. 19-20393
2
93 (5th Cir. 2019), petition for cert. filed (U.S. Dec. 16, 2019) (No. 19-779), and
United States v. Pedroza-Rocha, 933 F.3d 490 (5th Cir. 2019), petition for cert.
filed (U.S. Nov. 12, 2019) (No. 19-6588), 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 Pierre-Paul and
Pedroza-Rocha. Alternately, the Government requests an extension of time to
file a brief.
In Pedroza-Rocha, this court applied Pierre-Paul to conclude that the
notice to appear was not rendered deficient because it did not specify a 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.
Pedroza-Rocha, 933 F.3d at 496-98. Gutierrez-Murillo’s arguments are, as he
concedes, foreclosed. See id. 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 AS MOOT, and the judgment of the district court is
AFFIRMED.
Case: 19-20393 Document: 00515301994 Page: 2 Date Filed: 02/07/2020