United States v. Rodriguez-Alvarez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 20-50087
Summary Calendar

Consolidated with 20-50089

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

NICOLAS RODRIGUEZ-ALVAREZ,

Defendant-Appellant

Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:19-CR-418-1
USDC No. 4:19-CR-384-1

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

Nicolas Rodriguez-Alvarez pleaded guilty to illegal reentry after removal
in violation of 8 U.S.C. § 1326. He appeals the denial of his motion to dismiss
the indictment. He also appeals a separate revocation judgment but raises no
challenge to the revocation of his supervised release.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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 25, 2020

Lyle W. Cayce
Clerk
Case: 20-50087 Document: 00515465875 Page: 1 Date Filed: 06/25/2020

No. 20-50087
c/w No. 20-50089
2
As to his illegal reentry conviction, Rodriguez-Alvarez maintains that his
order of removal was defective—and, thus, his removal was void—because the
notice to appear failed to set forth a date and time for the removal hearing; he
suggests that the invalidity of his removal precludes it from being used to
support his illegal reentry conviction. Further, he asserts that he may attack
collaterally his removal order under § 1326(d) because the insufficiency of the
notice to appear—which invalidated the ensuing removal proceeding—excused
him from having to show administrative exhaustion and deprivation of judicial
review and rendered the proceeding fundamentally unfair. He acknowledges
that his arguments are foreclosed by United States v. Pedroza-Rocha, 933 F.3d
490 (5th Cir. 2019), cert. denied, 2020 WL 2515686 (U.S. May 18, 2020) (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), and indicates that he raises the
issues to preserve them for further review.
The Government agrees that the issues are foreclosed by Pedroza-Rocha
and Pierre-Paul and has filed an unopposed motion for summary affirmance.
Alternatively, 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). In Pierre-Paul, this court determined that a notice to
appear that omits the date, time, or place of a removal hearing is not defective
and, in any event, the defect would not be jurisdictional. 930 F.3d at 689-93.
Applying Pierre-Paul, this court in Pedroza-Rocha concluded that the notice to
appear was not deficient, that the purported deficiency would not deprive the
immigration court of jurisdiction, and that the defendant had to exhaust his
administrative remedies before he could collaterally attack his removal order.
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No. 20-50087
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933 F.3d at 496-98. Therefore, the arguments that Rodriguez-Alvarez asserts
on appeal are foreclosed. See Pedroza-Rocha, 933 F.3d at 496-98; Pierre-Paul,
930 F.3d at 689-93.
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. The judgments of the district court are AFFIRMED.
Case: 20-50087 Document: 00515465875 Page: 3 Date Filed: 06/25/2020