United States v. Jorge Madero-Gil

Case: 19-20241 Document: 00515349982 Page: 1 Date Filed: 03/18/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-20241 March 18, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JORGE MADERO-GIL,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CR-594-1
Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
Jorge Madero-Gil pleaded guilty to illegal reentry and was sentenced to
15 months in prison and one year of supervised release. Although he was
recently released from prison, his appeal of his conviction is not moot. See
Spencer v. Kemna, 523 U.S. 1, 7-8 (1998); United States v. Lares-Meraz, 452
F.3d 352, 355 (5th Cir. 2006).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 19-20241
Madero-Gil’s guilty plea was conditional, reserving the right to challenge
the district court’s denial of a motion to dismiss the indictment. On appeal he
reiterates his argument that the immigration court in his initial removal
proceeding never acquired jurisdiction because his notice of removal failed to
specify a date and time of appearance. As a result, he contends, the removal
order entered against him is void, which left the Government unable to prove
an essential element of the offense. As to the strictures of 8 U.S.C. § 1326(d),
which limits an alien’s ability to collaterally attack a removal order, Madero-
Gil asserts that it poses no obstacle because his challenge is jurisdictional in
nature and because, given the state of the law at the time of his initial removal
proceeding, he is excused from meeting the requirements of § 1326(d)(1) and
(2).
Madero-Gil concedes that these arguments are 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 for the most part we agree. There too
the defendant argued that failure to include date-and-time information in a
notice to appear is a jurisdictional defect, and we found this argument to be
both without merit and barred by § 1326(d) for failure to exhaust. 933 F.3d at
496-98. Madero-Gil’s identical and similarly unexhausted jurisdictional
argument must accordingly fail for the same reasons.
Pedroza-Rocha does not speak to Madero-Gil’s contention that he can
escape the strictures of § 1326(d)(1) and (2) under a “futility” exception, but
other authority shows this argument to be of no moment here. An alien “must
prove all three prongs” of § 1326(d) to successfully challenge a prior removal
order. United States v. Cordova-Soto, 804 F.3d 714, 719 (5th Cir. 2015). In
claiming fundamental unfairness under the final prong of § 1326(d), Madero-
Gil relies solely on the jurisdictional argument that Pedroza-Rocha foreclosed.
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Case: 19-20241 Document: 00515349982 Page: 3 Date Filed: 03/18/2020
No. 19-20241
Any argument as to prongs one and two is therefore moot. See United States
v. Mendoza-Mata, 322 F.3d 829, 832 (5th Cir. 2003).
For the foregoing reasons, we DENY the Government’s motion for
summary affirmance, DENY as unnecessary its alternative motion for an
extension of time to file a brief, and AFFIRM the judgment of the district court.
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