United States v. Juan Cervantes-Gonzalez ( 2019 )

Case: 19-50476 Document: 00515253208 Page: 1 Date Filed: 12/31/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-50476 FILED
Summary Calendar December 31, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JUAN JOSE CERVANTES-GONZALEZ, also known as Jose Cervantes, also
known as Jose Gonzalez, also known as Juan Cervantes-Gonzalez, also known
as Juan Cervantes, also known as Juan Cervantes Gonzalez, also known as
Juan Gonzalez, also known as Juan Gonzalez-Cervantes, also known as Juan
Gonzalez Cervantes,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:18-CR-581-1
Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Juan Jose Cervantes-Gonzalez appeals his conviction for illegal reentry
into the United States. He challenges the denial of his motion to dismiss the
indictment as invalid, contending that his initial removal order was void for
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 19-50476 Document: 00515253208 Page: 2 Date Filed: 12/31/2019
No. 19-50476
the failure of the notice to appear in the initial removal proceedings to specify
a date for his removal hearing. 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), 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 under Pedroza-Rocha.
Alternatively, 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). This court concluded in Pedroza-Rocha that the notice to
appear from the defendant’s prior removal proceedings was not deficient
because it lacked a specific date for the hearing, that any such alleged
deficiency had not deprived the immigration court of jurisdiction, and that the
defendant could not collaterally attack his notice to appear without first
exhausting his administrative remedies. 933 F.3d at 496-98. Cervantes-
Gonzalez’s arguments are, as he concedes, foreclosed by Pedroza-Rocha.
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.
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