United States v. Armendariz-Torres

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50285
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JORGE LUIS ARMENDARIZ-TORRES,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:18-CR-641-1

Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM:
*

Jorge Luis Armendariz-Torres appeals his conviction for entry into the
United States after deportation in violation of 8 U.S.C. § 1326. He entered a
conditional guilty plea, reserving the right to challenge the district court’s
denial of his motion to dismiss the indictment. Armendariz-Torres argues that
his prior removal could not support a conviction for illegal reentry under
§ 1326. Relying on Pereira v. Sessions, 138 S. Ct. 2105 (2018), he argues that

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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 19, 2020

Lyle W. Cayce
Clerk
Case: 19-50285 Document: 00515315456 Page: 1 Date Filed: 02/19/2020

No. 19-50285
2
his prior removal order was invalid because the notice to appear was defective
for failing to include the date and time of his removal hearing. Armendariz-
Torres 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 wishes to preserve the
issue for further review.
The Government has filed an unopposed motion for summary
affirmance, agreeing that the issue is foreclosed under Pedroza-Rocha and
Pierre-Paul. Alternately, 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 492-93, the district court dismissed an
indictment charging the defendant with a violation of § 1326 based on the
reasoning that the removal order was void because the notice to appear failed
to specify a date and time for the removal hearing. We reversed, concluding
that the notice to appear was not defective, that the alleged defect would not
deprive an immigration court of jurisdiction, and that § 1326(d) barred the
defendant from collaterally attacking his removal order because he had failed
to exhaust his administrative remedies. Id. at 496-98. Armendariz-Torres’s
arguments are foreclosed. See id.
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: 19-50285 Document: 00515315456 Page: 2 Date Filed: 02/19/2020