United States v. Agapito Jaramillo-Vasquez ( 2020 )

Case: 20-20013 Document: 00515480245 Page: 1 Date Filed: 07/07/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 20-20013 July 7, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
AGAPITO JARAMILLO-VASQUEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CR-167-1
Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Agapito Jaramillo-Vasquez appeals his conviction under 8 U.S.C. § 1326
for unlawful presence in the United States. Citing Pereira v. Sessions, 138 S.
Ct. 2105 (2018), he contends that his prior removal does not satisfy the removal
element of § 1326 because the notice to appear did not state the date or time of
the removal hearing. In United States v. Pedroza-Rocha, 933 F.3d 490, 497–
98 (5th Cir. 2019), cert. denied, 2020 WL 2515686 (U.S. May 18, 2020) (No. 19-
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 20-20013 Document: 00515480245 Page: 2 Date Filed: 07/07/2020
No. 20-20013
6588), we relied on Pierre-Paul v. Barr, 930 F.3d 684, 688–89 (5th Cir. 2019),
cert. denied, 2020 WL 1978950 (U.S. Apr. 27, 2020) (No. 19-779), to conclude
that (1) a notice to appear that lacked the date and time of the removal hearing
was not defective, (2) any defect was cured by the subsequent service of a notice
of hearing, and (3) the purported defect was not jurisdictional. Additionally,
we held that the defendant could not collaterally attack the notice to appear
without first exhausting administrative remedies. Pedroza-Rocha, 933 F.3d at
498. Conceding that Pedroza-Rocha and Pierre-Paul foreclose his claim,
Jaramillo-Vasquez raises it to preserve it for further review.
The Government has filed an unopposed motion for summary
affirmance, which is proper 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). Because Jaramillo-Vasquez correctly concedes that his claim
is foreclosed by Pierre-Paul and Pedroza-Rocha, the 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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