United States v. Ramirez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50525
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

LUIS FERNANDO RAMIREZ,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:18-CR-729-1

Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM:
*

Luis Fernando Ramirez appeals his conviction for illegal reentry into the
United States, a violation of 8 U.S.C. § 1326. He challenges the district court’s
denial of his motion to dismiss the indictment, which he reserved the right to
appeal when he conditionally pleaded guilty. See F
ED. R. CRIM. P. 11(a)(2).
Relying on Pereira v. Sessions, 138 S. Ct. 2105 (2018), Ramirez argues that his
prior removal order was invalid because the notice to appear (NTA) was

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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 6, 2020

Lyle W. Cayce
Clerk
Case: 19-50525 Document: 00515335255 Page: 1 Date Filed: 03/06/2020

No. 19-50525
2
defective for failing to include the date and time of his removal hearing.
Ramirez therefore asserts that his prior removal could not support a conviction
for illegal reentry under § 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), 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 raises the issue to preserve it for further review. The Government has filed
an unopposed motion for summary affirmance, agreeing that the issue is
foreclosed by 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 Ramirez’s arguments are
foreclosed. See Pedroza-Rocha, 933 F.3d at 492-9 8. 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: 19-50525 Document: 00515335255 Page: 2 Date Filed: 03/06/2020