United States v. Cirilo Horta-Almaraz ( 2019 )

Case: 19-50543 Document: 00515246685 Page: 1 Date Filed: 12/23/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-50543 FILED
Summary Calendar December 23, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff−Appellee,
versus
CIRILO HORTA-ALMARAZ, also known as Cirilio Horta,
also known as Cirilo Horta Almarez, also known as Jose Antonio Castro,
also known as Cirilo HortaAlmarez, also known as Jose Villalon-Castro,
also known as Jose Antonio Villalon-Castro,
also known as Jose Antonio Villaloncastro,
Defendant−Appellant.
Appeal from the United States District Court
for the Western District of Texas
No. 5:19-CR-79-1
Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Cirilo Horta-Almaraz appeals his conviction of illegal reentry into 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50543 Document: 00515246685 Page: 2 Date Filed: 12/23/2019
No. 19-50543
United States after removal. He contends that the indictment was invalid
because the notice to appear in his removal proceedings was defective for fail-
ing to specify a time and date for his removal hearing and that the removal
order was thus void. Although Horta-Almaraz concedes that the issue is fore-
closed by United States v. Pedroza-Rocha, 933 F.3d 490, 496−98 (5th Cir. 2019),
petition for cert. filed (U.S. Nov. 6, 2019) (No. 19-6588), and Pierre-Paul v. Barr,
930 F.3d 684, 689−93 (5th Cir. 2019), he wishes to preserve it for further
review. The government has filed an unopposed motion for summary affirm-
ance, agreeing that the issue is foreclosed under Pedroza-Rocha and
Pierre-Paul.
In Pedroza-Rocha, 933 F.3d at 496−98, this court applied Pierre-Paul to
conclude that the notice to appear was not rendered deficient because it did
not specify a date or time 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
administrative remedies. As he concedes, Horta-Almaraz’s arguments are
foreclosed by those two cases. 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 motion for summary affirmance is GRANTED, the govern-
ment’s alternative motion for an extension of time to file a brief is DENIED,
and the judgment is AFFIRMED.
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