United States v. Jose Felix-Felix ( 2019 )

Case: 19-50566 Document: 00515221571 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
No. 19-50566
FILED
December 3, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellant
v.
JOSE MANUEL FELIX-FELIX,
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:19-CR-1200-1
Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Jose Manuel Felix-Felix was indicted on one charge of illegal reentry
following removal, in violation of 8 U.S.C. § 1326. The district court granted
his motion to dismiss the indictment after concluding that his removal order
was invalid because his notice to appear did not include a specific time and
date for his removal hearing. The Government appeals and moves for
summary disposition, arguing that the district court’s dismissal of the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50566 Document: 00515221571 Page: 2 Date Filed: 12/03/2019
No. 19-50566
indictment was erroneous under United States v. Pedroza-Rocha, 933 F.3d 490
(5th Cir. 2019). Alternately, the Government moves for an extension of time
in which to file a brief.
Summary disposition 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). Pedroza-Rocha concluded that the notice to appear was
not deficient because it did not specify a date for the 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. These
conclusions are contrary to those of the district court in this case and show that
the district court erred by granting Felix-Felix’s motion to dismiss. See id.
Accordingly, the Government’s motion for summary disposition is GRANTED,
the Government’s alternative motion for an extension of time to file a brief is
DENIED AS MOOT, the judgment of the district court is REVERSED, and this
case is REMANDED to the district court for further proceedings.
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