United States v. Gutierrez-Rodriguez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-20361
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

AMETH GUTIERREZ-RODRIGUEZ,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CR-596-1

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

Ameth Gutierrez-Rodriguez 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; he reserved the right to
appeal this ruling in his conditional guilty plea. See F
ED. R. CRIM. P. 11(a)(2).
Relying on Pereira v. Sessions, 138 S. Ct. 2105 (2018), Gutierrez-Rodriguez
argues that his prior removal order was invalid because the notice to appear

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
April 21, 2020

Lyle W. Cayce
Clerk
Case: 19-20361 Document: 00515390787 Page: 1 Date Filed: 04/21/2020

No. 19-20361
2
was defective for failing to include the date and time of his removal hearing.
Gutierrez-Rodriguez 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 Gutierrez-Rodriguez’s
arguments are foreclosed. See Pedroza-Rocha, 933 F.3d at 492-98.
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: 19-20361 Document: 00515390787 Page: 2 Date Filed: 04/21/2020