United States v. Acuna-Duenas

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-40666
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

AARON JOSUE ACUNA-DUENAS, also known as Jesus Estrada-Garcia, also
known as Joel Cruz-Diaz,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:18-CR-1229-1

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

Aaron Josue Acuna-Duenas was convicted of illegal reentry after
removal, in violation of 8 U.S.C. § 1326, and was sentenced to 32 months of
imprisonment. He challenges the district court’s denial of his motion to
dismiss the indictment; he reserved the right to appeal this ruling by entering
a conditional guilty plea. See F
ED. R. CRIM. P. 11(a)(2). Relying on Pereira v.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
April 8, 2020

Lyle W. Cayce
Clerk
Case: 19-40666 Document: 00515376615 Page: 1 Date Filed: 04/08/2020

No. 19-40666
2
Sessions, 138 S. Ct. 2105 (2018), Acuna-Duenas contends that the prior
removal order that was used to support his illegal reentry conviction was void
because the notice to appear failed to specify a hearing date or time. He
acknowledges that the issue is foreclosed under this court’s decisions in 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 he states
that 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 and Pierre-Paul. In the alternative, the
Government requests an extension of time to file a 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). The parties are correct that Acuna-Duenas’s arguments
are foreclosed. See Pedroza-Rocha, 933 F.3d at 492-98. 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: 19-40666 Document: 00515376615 Page: 2 Date Filed: 04/08/2020