United States v. Luis Pina ( 2020 )

Case: 19-20777 Document: 00515545039 Page: 1 Date Filed: 08/28/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 28, 2020
No. 19-20777 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Luis Leon Pina,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CR-81-1
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Luis Leon Pina appeals his conviction under 8 U.S.C. § 1326 for
illegally reentering the United States following deportation after conviction
of a felony. 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
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 19-20777 Document: 00515545039 Page: 2 Date Filed: 08/28/2020
No. 19-20777
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. 19-6588), 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, Pina
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 Pina 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.
2