United States v. Antonio Valdez Rojas ( 2020 )

Case: 19-20527 Document: 00515375422 Page: 1 Date Filed: 04/08/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-20527 April 8, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ANTONIO DE JESUS VALDEZ ROJAS,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CR-700-1
Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
Antonio De Jesus Valdez Rojas appeals his conviction for illegal reentry
into the United States following a previous deportation, a violation of 8 U.S.C.
§ 1326. In his guilty plea, Valdez Rojas reserved the right to appeal the district
court’s denial of his motion to dismiss the indictment. See FED R. CRIM.
P. 11(a)(2). Relying on Pereira v. Sessions, 138 S. Ct. 2105 (2018), as he did in
his motion to dismiss the indictment, Valdez Rojas argues that his prior
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-20527 Document: 00515375422 Page: 2 Date Filed: 04/08/2020
No. 19-20527
removal order was invalid because the notice to appear was defective for failing
to include the date and time of his removal hearing. According to Valdez Rojas,
his prior removal therefore could not support a conviction for illegal reentry
under § 1326, and the removal proceeding was fundamentally unfair requiring
dismissal of the instant indictment. Valdez Rojas concedes that his challenges
are 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), and Pierre-Paul v. Barr,
930 F.3d 684 (5th Cir. 2019), petition for cert. filed (U.S. Dec. 16, 2019) (No. 19-
779), but he raises the issues to preserve them for further review. The
Government has filed an unopposed motion for summary affirmance, agreeing
that the issues are foreclosed by Pedroza-Rocha and Pierre-Paul.
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). The parties are correct that Valdez Rojas’s arguments
are foreclosed. See Pedroza-Rocha, 933 F.3d at 492-98. 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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