United States v. Cirilo Hernandez-Rebollar ( 2019 )

Case: 19-50269 Document: 00515250532 Page: 1 Date Filed: 12/27/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-50269 FILED
Summary Calendar December 27, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CIRILO HERNANDEZ-REBOLLAR, also known as Cirilio Hernandez-
Rebollar, also known as Ciril Hernandez, also known as Cirrilo Hernandez,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:18-CR-311-1
Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Cirilo Hernandez-Rebollar appeals his conviction of illegal reentry into
the United States. He entered a conditional guilty plea to the indictment,
reserving the right to challenge the district court’s denial of his motion to
dismiss the indictment. The district court sentenced him to 30 years of
imprisonment and three years of supervised release.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50269 Document: 00515250532 Page: 2 Date Filed: 12/27/2019
No. 19-50269
Now, Hernandez-Rebollar asserts, as he did in the district court, that his
prior removal was invalid because the notice to appear which commenced the
proceeding was defective for failing to specify a date and time for his removal
hearing. He contends therefore that the removal order is void and that the
Government cannot establish an essential element of the illegal reentry offense
under 8 U.S.C. § 1326. 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 the issue for
further review.
The Government has filed an unopposed motion for summary
affirmance, agreeing that the issue is foreclosed under Pedroza-Rocha.
Alternately, 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).
Pedroza-Rocha concluded that the notice to appear was not deficient for
failing to specify a date and time 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. Gomez-Lopez’s
arguments are, as he concedes, foreclosed by this case. See id; see also Pierre-
Paul v. Barr, 930 F.3d 684, 688-90 (5th Cir. 2019). 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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