United States v. Yepez-Valencia

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50474
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE ROBERTO YEPEZ-VALENCIA, also known as Jose Roberto Yepez,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:18-CR-3615-1

Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:
*

Jose Roberto Yepez-Valencia appeals his conviction for illegal reentry, in
violation of 8 U.S.C. § 1326. He stipulated at a bench trial that he illegally
reentered this country, reserving the ri ght to appeal the denial of his motion
to dismiss the indictment. Yepez-Valencia asserts that the indictment was
invalid because the removal order was void due to a defective notice to appear
that failed to specify the date and time for his removal hearing. He concedes

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
January 31, 2020

Lyle W. Cayce
Clerk
Case: 19-50474 Document: 00515293387 Page: 1 Date Filed: 01/31/2020

No. 19-50474
2
that the 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), petition for cert. filed (U.S.
Dec. 16, 2019) (No. 19-779), but he wishes to preserve it for further review.
The Government has filed a motion for summary affirmance, agreeing that the
issue is foreclosed under Pedroza-Rocha and Pierre-Paul. Alternatively, the
Government requests an extension of time to file a brief.
In Pedroza-Rocha, we concluded that the notice to appear was not
rendered deficient because it did not specify a date or time for the removal
hearing, that any such alleged deficiency had not deprived the immigration
court of jurisdiction, and that Pedroza-Rocha could not collaterally attack his
underlying removal order without first exhausting his administrative
remedies. 933 F.3d at 496-98. Because the Government’s position “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 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 is AFFIRMED.
Case: 19-50474 Document: 00515293387 Page: 2 Date Filed: 01/31/2020