United States v. Vazquez-Ovalle ( 2021 )

Case: 20-50924 Document: 00515916329 Page: 1 Date Filed: 06/28/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 20-50924
FILED
June 28, 2021
consolidated with
No. 20-50934 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Ruben Vazquez-Ovalle,
Defendant—Appellant.
Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:20-CR-154-1
USDC No. 4:20-CR-131-1
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 5th Circuit Rule 47.5.4.
Case: 20-50924 Document: 00515916329 Page: 2 Date Filed: 06/28/2021
No. 20-50924
c/w No. 20-50934
Ruben Vazquez-Ovalle appeals his conviction for illegal reentry into
the United States. 1 He challenges the district court’s denial of his motion to
dismiss the indictment, arguing that his original removal order was void
because the immigration court lacked jurisdiction due to the failure of the
notice to appear to specify a date and time for his removal hearing. He
concedes that the issue is foreclosed by United States v. Pedroza-Rocha, 933
F.3d 490, 498 (5th Cir. 2019), cert. denied, 140 S. Ct. 2769 (2020), but he
wishes 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 v. Barr, 930 F.3d 684, 689–93
(5th Cir. 2019), cert. denied, 140 S. Ct. 2718 (2020). Alternatively, the
Government requests an extension of time to file its brief.
In Pedroza-Rocha, we concluded that the notice to appear was not
rendered deficient because it did not specify a date and 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
notice to appear without first exhausting his administrative remedies. 933
F.3d at 496–98. Vazquez-Ovalle’s arguments are, as he concedes, foreclosed
by Pedroza-Rocha. See id. 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
1
Vazquez-Ovalle also filed an appeal from the concomitant revocation of his
supervised release. Although the appeals were consolidated, he has abandoned any
challenge to his revocation or revocation sentence by failing to brief it on appeal. See United
States v. Still, 102 F.3d 118, 122 n.7 (5th Cir. 1996).
2
Case: 20-50924 Document: 00515916329 Page: 3 Date Filed: 06/28/2021
No. 20-50924
c/w No. 20-50934
to file a brief is DENIED, and the judgments of the district court are
AFFIRMED.
3