United States v. Hernandez-Macias

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50645
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE ROLANDO HERNANDEZ-MACIAS, also known as Rolando
Hernandez-Macias, also known as Rolando Macias Hernandez, also known as
Rolando Hernandez, also known as Rolando Macias-Hernandez, also known as
Jose Macias, also known as Rolando Hernandez Macias, also known as Jose
Hernandez, also known as Rolando Macias, also known as Jose Rolando
Macias-Hernandez,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:18-CR-910-1

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

Appealing his conviction under 8 U.S.C. § 1326(a) and (b)(1) for illegally
reentering the United States following removal, Jose Rolando Hernandez-
Macias challenges the district court’s order declining to dismiss his indictment.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
February 27, 2020

Lyle W. Cayce
Clerk
Case: 19-50645 Document: 00515324409 Page: 1 Date Filed: 02/27/2020

No. 19-50645
2
He contends that the notice to appear issued in his removal proceeding was
defective, his removal was thus invalid, and it could not be used to support his
illegal reentry conviction. Additionally, Hernandez-Macias co ntends that he
satisfied or is excused from satisfying the § 1326(d) requirements for
collaterally attacking his removal order. Hernandez-Macias 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).
The Government has filed an unopposed motion for summary
affirmance, agreeing that the issue is foreclosed under Pedroza-Rocha.
Alternatively, the Government 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).
In Pedroza-Rocha, 933 F.3d at 496-98, we held that the notice to appear
was not deficient merely because it did not specify a date for the hearing, any
such purported deficiency had not deprived the immigration court of
jurisdiction, and the appellant could not collaterally attack his notice to appear
without first exhausting his administrative remedies. Hernandez-Macias’s
arguments are, as he concedes, foreclosed. See id.
Accordingly, the Government’s motion for summary affirmance is
GRANTED, and the judgment of the district court is AFFIRMED. The
Government’s alternative motion for an extension of time to file its appellate
brief is DENIED as moot.
Case: 19-50645 Document: 00515324409 Page: 2 Date Filed: 02/27/2020