United States v. Parra-Murillo

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50728
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellant
v.

SERVANDO JAVIER PARRA-MURILLO,

Defendant-Appellee

Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:19-CR-1531-1

Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM:
*

The Government appeals the dismissal of an indictment charging
Servando Javier Parra-Murillo with illegal reentry after deportation in
violation of 8 U.S.C. § 1326. The district court determined that the notice to
appear (NTA) that initiated the removal proceedings—which did not specify a
date and time for the removal hearing—was defective and could not sustain a
conviction for illegal reentry.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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: 19-50728 Document: 00515293684 Page: 1 Date Filed: 01/31/2020

No. 19-50728
2
In United States v. Pedroza-Rocha, 933 F.3d 490, 492-93 (5th Cir. 2019),
petition for cert. filed (U.S. Nov. 6, 2019) (No. 19-6588), this court considered a
challenge to the district court’s grant of a motion to dismiss an indictment
charging illegal reentry under § 1326 on the basis that the NTA was defective
because it did not specify a date and time for the removal hearing and the prior
order of removal was thus void. Applying Pierre-Paul v. Barr, 930 F.3d 684
(5th Cir. 2019), this court reversed and remanded, concluding that the NTA
was not deficient, that the subsequent service of a notice of hearing that
included the date and time of the removal hearing cured any purported defect
in the NTA, that the alleged deficiency did not deprive the immigration court
of jurisdiction, and that the defendant could not collaterally attack his removal
order without first exhausting his administrative remedies. Pedroza-Rocha,
933 F.3d at 496-98.
The instant case is indistinguishable from Pedroza-Rocha. Accordingly,
the Government’s unopposed motion for summary disposition is GRANTED.
See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). The
Government’s alternative motion for an extension of time to file a brief is
DENIED as unnecessary. The judgment of the district court is REVERSED,
and the case is REMANDED for further proceedings.
Case: 19-50728 Document: 00515293684 Page: 2 Date Filed: 01/31/2020