United States v. Vasquez-Jimenez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50938
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

GREGORIO VASQUEZ-JIMENEZ,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:19-CR-528-1

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

Gregorio Vasquez-Jimenez appeals the denial of his motion to dismiss
his indictment for illegal entry following deportation, upon conviction for which
he was sentenced to ten months of imprisonment followed by three years of
supervised release. See 8 U.S.C. § 1326(a), (b)(1). Citing Pereira v. Sessions,
138 S. Ct. 2105 (2018), Vasquez-Jimenez contends that the prior removal order
upon which his indictment was based was void for lack of subject matter

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
June 1, 2020

Lyle W. Cayce
Clerk
Case: 19-50938 Document: 00515435778 Page: 1 Date Filed: 06/01/2020

No. 19-50938
2
jurisdiction due to the failure of the notice to appear that commenced his
removal proceedings to list the date and time of his removal hearing. He
concedes that this issue 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), cert. denied, 2020
WL 1978950 (U.S. Apr. 27, 2020) (No. 19-779), but he seeks to preserve the
issue for future review. Agreeing that Vasquez-Jimenez’s appeal is foreclosed,
the Government moves for summary affirmance or, alternatively, for an
extension of time in which to file a merits brief.
As an initial matter, we have jurisdiction over the appeal
notwithstanding Vasquez-Jimenez’s release from custody and possible
deportation. See Pedroza-Rocha, 933 F.3d at 493-95; United States v. Lares-
Meraz, 452 F.3d 352, 355 (5th Cir. 2006); Mosley v. Cozby, 813 F.2d 659, 660
(5th Cir. 1987).
The parties are correct that Vasquez-Jimenez’s appeal of the district
court’s ruling on the motion to dismiss is clearly foreclosed by Pedroza-Rocha
and Pierre-Paul. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162
(5th Cir. 1969); Pedroza-Rocha, 930 F.3d at 496-98; Pierre-Paul, 930 F.3d at
688-89, 690-93. Accordingly, the Government’s motion for summary
affirmance is GRANTED. Its alternative motion for an extension of time is
DENIED. The judgment is AFFIRMED.
Case: 19-50938 Document: 00515435778 Page: 2 Date Filed: 06/01/2020