United States v. Mendoza-Valles

Case: 20-50932 Document: 00515851801 Page: 1 Date Filed: 05/06/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 20-50932
FILED
May 6, 2021
Summary Calendar
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Adrian Nicolas Mendoza-Valles,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:20-CR-139-1
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Adrian Nicolas Mendoza-Valles appeals his guilty plea conviction for
illegal reentry into the United States after a prior removal, which followed
the denial of his motion to dismiss the indictment. See 8 U.S.C. § 1326.
Mendoza-Valles contends, citing Pereira v. Sessions, 138 S. Ct. 2105 (2018),
*
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opinion should not be published and is not precedent except under the limited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: 20-50932 Document: 00515851801 Page: 2 Date Filed: 05/06/2021
No. 20-50932
that his prior removal does not satisfy the removal element of § 1326 because
the notice to appear underlying that removal did not provide the date and
time of the removal hearing.
In United States v. Pedroza-Rocha, 933 F.3d 490, 497–98 (5th Cir.
2019), cert. denied, 140 S. Ct. 2769 (2020), we relied on Pierre-Paul v. Barr,
930 F.3d 684, 688–89 (5th Cir. 2019), cert. denied, 140 S. Ct. 2718 (2020), 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, Mendoza-Valles 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 Mendoza-Valles correctly concedes that his claim
is foreclosed by Pierre-Paul and Pedroza-Rocha, the motion for summary
affirmance is GRANTED and the Government’s alternative motion for an
extension of time to file a brief is DENIED AS MOOT. The judgment of
the district court is AFFIRMED.
2