United States v. Zarate-Hernandez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-20305
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff−Appellee,

versus

MARGARITO ZARATE-HERNANDEZ,

Defendant−Appellant.

Appeal from the United States District Court
for the Southern District of Texas
No. 4:18-CR-562-1

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

Margarito Zarate-Hernandez pleaded guilty of illegal reentry. The plea

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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 3, 2020

Lyle W. Cayce
Clerk
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No. 19-20305
2
was conditional, reserving the right to challenge the denial of a motion to
dismiss the indictment. On appeal, Zarate-Hernandez reiterates his argument
that the immigration court in his initial removal proceeding never acquired
jurisdiction because his notice to appear failed to specify a date and time of
hearing. As a result, he contends, the removal order is void, which left the
government unable to prove an essential element of the offense. As to 8 U.S.C.
§ 1326(d), which limits an alien’s ability to attack a removal order collaterally,
Zarate-Hernandez asserts that it poses no obstacle because his challenge is
jurisdictional in nature and because, given the state of the law at the time of
his initial removal proceeding, he is excused from meeting the requirements of
§ 1326(d)(1) and (2).
Zarate-Hernandez concedes that these 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 for the most part we agree. There
too the defendant argued that failure to include date-and-time information in
a notice to appear is a jurisdictional defect, and we found that argument to be
both without merit and barred by § 1326(d) for failure to exhaust. Pedroza-
Rocha, 933 F.3d at 496−98. Zarate-Hernandez’s identical and similarly un-
exhausted jurisdictional argument must accordingly fail for the same reasons.
Pedroza-Rocha does not speak to Zarate-Hernandez’s contention that he
can escape the strictures of § 1326(d)(1) and (2) under a “futility” exception,
but other authority shows that theory to be unavailing. An alien “must prove
all three prongs” of § 1326(d) to challenge a prior removal order. United States
v. Cordova-Soto, 804 F.3d 714, 719 (5th Cir. 2015). In claiming fundamental
unfairness under the third prong of § 1326(d), Zarate-Hernandez relies solely
on the jurisdictional argument that Pedroza-Rocha foreclosed. Any argument
as to prongs one and two is therefore moot. See United States v. Mendoza-
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Mata, 322 F.3d 829, 832 (5th Cir. 2003) (“If the alien fails to establish one
prong of the three part test, the Court need not consider the others.”).
For the foregoing reasons, we DENY the government’s motion for sum-
mary affirmance, DENY as unnecessary its alternative motion for an extension
of time to file a brief, and AFFIRM the judgment.
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