United States v. Fabio Marriel ( 2019 )

Case: 19-50647 Document: 00515220992 Page: 1 Date Filed: 12/03/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 3, 2019
No. 19-50647
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellant
v.
FABIO JUNIOR MARRIEL,
Defendant-Appellee
Appeals from the United States District Court
for the Western District of Texas
USDC No. 3:19-CR-1243-1
Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
The Government appeals the district court’s grant of Defendant-Appellee
Fabio Junior Marriel’s motion to dismiss the indictment charging him with
illegal reentry following removal. See 8 U.S.C. § 1326. The district court
determined that the notice to appear in Junior Marriel’s removal proceedings
failed to specify a time and date for the removal hearing and ruled that the
immigration court therefore lacked jurisdiction and that the removal order
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50647 Document: 00515220992 Page: 2 Date Filed: 12/03/2019
No. 19-50647
underlying the § 1326 charge in the indictment was void. The Government
filed an unopposed motion for summary disposition, contending that the
district court’s dismissal of the indictment was erroneous in light of United
States v. Pedroza-Rocha, 933 F.3d 490 (5th Cir. 2019).
In Pedroza-Rocha, 933 F.3d at 492-93, this court reversed the district
court’s dismissal of an indictment charging the defendant with violating §
1326. The district court had concluded that (1) the notice to appear was
defective because it did not specify a date and time for the removal hearing and
(2) the removal order was thus void. Id. We determined that (1) the notice to
appear was not deficient, (2) in any event the alleged deficiency would not
deprive an immigration court of jurisdiction, and (3) § 1326(d) barred Pedroza-
Rocha from collaterally attacking his notice to appear when he failed to
exhaust his administrative remedies. Id. at 496-98. The instant case is
indistinguishable from Pedroza-Rocha.
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 [this] case,” so
summary disposition is appropriate. Groendyke Transp., Inc. v. Davis, 406
F.2d 1158, 1162 (5th Cir. 1969). We GRANT the Government’s motion for
summary disposition, REVERSE the judgment of the district court, and
REMAND this matter for further proceedings consistent herewith.
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