United States v. Guevara

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-20507
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

PEDRO PALACIOS GUEVARA,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CR-47-1

Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:
*

Pedro Palacios Guevara appeals his conviction of illegal reentry into the
United States after deportation subsequent to a felony conviction. He entered
a conditional guilty plea to the indictment, reserving the right to challenge the
district court’s denial of his motion to dismiss the indictment. The district
court sentenced him to 48 months of imprisonment.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
January 30, 2020

Lyle W. Cayce
Clerk
Case: 19-20507 Document: 00515292623 Page: 1 Date Filed: 01/30/2020

No. 19-20507
2
Now, Guevara asserts, as he did in the district court, that his prior
removal was invalid because the notice to appear which commenced the
proceeding was defective for failing to specify a date and time for his removal
hearing. He contends therefore that the removal order is void and that the
Government cannot establish an essential element of the illegal reentry offense
under 8 U.S.C. § 1326. He concedes that this challenge 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), but he wishes to preserve the issue for
further review.
The Government has filed an unopposed motion for summary
affirmance, agreeing that the issue is foreclosed under Pedroza-Rocha.
Alternately, the Government 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). Pedroza-Rocha concluded 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. 933 F.3d at 496–98. Guevara’s
arguments are, as he concedes, foreclosed by this case. See id; see also Pierre-
Paul v. Barr, 930 F.3d 684, 688-90 (5th Cir. 2019). 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 judgment of the district court is AFFIRMED.
Case: 19-20507 Document: 00515292623 Page: 2 Date Filed: 01/30/2020