United States v. Vargas Castro

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-20394
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE ANTONIO VARGAS CASTRO,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CR-570-1

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

Jose Antonio Vargas Castro 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

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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: 19-20394 Document: 00515292655 Page: 1 Date Filed: 01/30/2020

No. 19-20394
2
F.3d 684, 689-93 (5th Cir. 2019), and 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 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. Alternatively, 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 the defendant could not collaterally attack his
notice to appear without first exhausting his administrative remedies.
Pedroza-Rocha, 933 F.3d at 496-98. Vargas Castro’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, and the judgment of the district court is AFFIRMED.
Case: 19-20394 Document: 00515292655 Page: 2 Date Filed: 01/30/2020