United States v. Castellanos

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-20525
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

EDUARDO HERNANDEZ CASTELLANOS,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CR-592-1

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

Eduardo Hernandez Castellanos appeals his conviction for illegal
reentry into the United States. He entered a conditional guilty plea, reserving
the right to challenge the district court’s denial of his motion to dismiss the
indictment. The district court sentenced him to 12 months and one day of
imprisonment and two years of supervised release. Although Hernandez
Castellanos is not presently incarcerated for the instant conviction, his appeal

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
February 5, 2020

Lyle W. Cayce
Clerk
Case: 19-20525 Document: 00515298747 Page: 1 Date Filed: 02/05/2020

No. 19-20525
2
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).
Hernandez Castellanos argues, as he did in the district court, that his
prior removal was invalid because it followed a defective notice to appear that
failed to specify a date and hearing time. He further contends that he may
collaterally attack the removal proceeding without exhausting his
administrative remedies. He concedes that his 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), and he explains that he has raised the
arguments to preserve them for further review. The Government has filed an
unopposed motion for summary affirmance, agreeing that the issues are
foreclosed under Pedroza-Rocha. The Government, alternatively, 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). Hernandez Castellanos’s arguments are indeed
foreclosed. See Pedroza-Rocha, 933 F.3d at 496-98; see also Pierre-Paul v. Barr,
930 F.3d 684, 688-93 (5th Cir. 2019), petition for cert. filed (U.S. Dec. 16, 2019)
(No. 19-779).
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: 19-20525 Document: 00515298747 Page: 2 Date Filed: 02/05/2020