United States v. Saul De Anda ( 2020 )

Case: 20-20012 Document: 00515598009 Page: 1 Date Filed: 10/12/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 12, 2020
No. 20-20012
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Saul Zamora De Anda,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CR-248-1
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Saul Zamora De Anda 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
*
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opinion should not be published and is not precedent except under the limited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: 20-20012 Document: 00515598009 Page: 2 Date Filed: 10/12/2020
No. 20-20012
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, Zamora De Anda 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 Zamora De Anda 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 as moot, and the judgment of the
district court is AFFIRMED.
2