United States v. Reynoso-Valdez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-40417
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

VICTOR REYNOSO-VALDEZ,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:18-CR-1783-1

Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM:
*

Victor Reynoso-Valdez appeals his conviction for illegal reentry, for
which he entered a conditional guilty plea, reserving the right to appeal the
denial of his motion to dismiss the indictment. Reynoso-Valdez now argues
that his indictment is invalid because his prior removal order was void due to
a defective notice to appear (NTA) that failed to specify a date and time for his
removal hearing, thus, depriving the immigration court of jurisdiction. He

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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 24, 2020

Lyle W. Cayce
Clerk
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No. 19-40417
2
further argues that he satisfies 8 U.S.C. § 1326(d)’s three requirements to
collaterally attack his removal order.
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 Pierre-Paul v. Barr, 930 F.3d 684 (5th Cir. 2019),
petition for cert. filed (U.S. Dec. 16, 2019) (No. 19-779), but wishes to preserve
his claims for further review. The Government has filed an unopposed motion
for summary affirmance, agreeing that Reynoso-Valdez’s arguments are
foreclosed under Pedroza-Rocha and Pierre-Paul. Alternatively, the
Government requests a 30-day extension of time to file a brief.
In Pierre-Paul, we held that lack of date-and-time information does not
render an NTA defective and that, even if it did, the defect would not be
jurisdictional. Pierre-Paul, 930 F.3d at 689-93. In Pedroza-Rocha, we
reaffirmed that an NTA’s failure to specify a date and time of hearing is not
grounds for dismissing a later reentry prosecution and also determined that
the defendant could not collaterally attack his underlying removal order
without meeting the requirements of § 1326(d). Pedroza-Rocha, 933 F.3d at
498. Accordingly, Reynoso-Valdez’s substantially similar arguments are
foreclosed.
However, neither Pierre-Paul nor Pedroza-Rocha address Reynoso-
Valdez’s contention that he can escape the requirements of § 1326(d) under a
“futility” exception. This argument is of no consequence. An alien “must prove
all three prongs” of § 1326(d) to successfully challenge 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 § 1326(d), Reynoso-Valdez
relies solely on the jurisdictional argument that Pedroza-Rocha foreclosed.
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No. 19-40417
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Any arguments as to prongs one and two of § 1326(d) are, therefore, moot. See
Cordova-Soto, 804 F.3d at 719.
For the foregoing reasons, 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.
Case: 19-40417 Document: 00515356531 Page: 3 Date Filed: 03/24/2020