United States v. Pedro Rodriguez-Garcia ( 2020 )

Case: 19-50575 Document: 00515377108 Page: 1 Date Filed: 04/09/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
April 9, 2020
No. 19-50575 Lyle W. Cayce
Summary Calendar Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
PEDRO RODRIGUEZ-GARCIA, also known as Pedro Garcia-Rodriguez,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:18-CR-624-1
Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM:*
Pedro Rodriguez-Garcia appeals his conviction for illegal reentry into the
United States following deportation, a violation of 8 U.S.C. § 1326. In his guilty
plea, Rodriguez-Garcia 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), Rodriguez-Garcia argues that
his prior removal order was invalid because the notice to appear was defective
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50575 Document: 00515377108 Page: 2 Date Filed: 04/09/2020
No. 19-50575
for failing to include the date and time of his removal hearing. According to
Rodriguez-Garcia, his prior removal therefore could not support a conviction
for illegal reentry under § 1326. Additionally, Rodriguez-Garcia asserts that
he is excused from satisfying the § 1326(d) requirements for collaterally
attacking his removal order.
The Government has filed a motion for summary affirmance, arguing
that Rodriguez-Garcia’s 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), and Pierre-Paul v. Barr, 930 F.3d 684 (5th Cir. 2019), petition
for cert. filed (U.S. Dec. 16, 2019) (No. 19-779). Rodriguez-Garcia contends that
Pedroza-Rocha and Pierre-Paul do not foreclose review because this court in
those cases did not address the issue he raises here. Specifically, he argues
that the requirements for a notice to appear are statutory and, therefore, the
rules of statutory construction require that the statutory notice requirements
at issue in Pereira apply to the notice to appear in his immigration proceedings
as well.
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 Government’s position is right as a matter of law
under Pedroza-Rocha and Pierre-Paul which specifically held that a defective
notice to appear does not deprive the immigration court of jurisdiction. See
Pedroza-Rocha, 933 F.3d at 492-98; Pierre-Paul, 930 F.3d at 689. Accordingly,
the Government’s motion for summary affirmance is GRANTED, its
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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