UNITED STATES v. GARCIA SUAREZ (2020)

Jose Alfonso Garcia-Suarez appeals his guilty plea conviction for illegal reentry into the United States. See 8 U.S.C. § 1326. Garcia-Suarez entered a conditional guilty plea, reserving the right to challenge the district court’s denial of his motion to dismiss his indictment. He was sentenced to 18 months of imprisonment and three years of supervised release. Although Garcia-Suarez was recently released from prison and removed to Mexico, his appeal of his conviction is not moot. See Spencer v. Kemna, 523 U.S. 1, 7-10, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998); United States v. Lares-Meraz, 452 F.3d 352, 355 (5th Cir. 2006).

On appeal, Garcia-Suarez reiterates his district court argument that his prior removal was invalid because the notice to appear that initiated his removal proceeding was defective for failing to specify a place, date, and time for his hearing. He reiterates also his district court arguments that his removal was fundamentally unfair, the removal order was void, and the Government failed to establish an essential element of the illegal reentry offense under § 1326. He concedes that his challenge is foreclosed by precedent. See United States v. Pedroza-Rocha, 933 F.3d 490 (5th Cir. 2019), petition for cert. filed (U.S. Nov. 6, 2019) (No. 19-6588); Pierre-Paul v. Barr, 930 F.3d 684, 689-93 (5th Cir. 2019). He raises his challenge in order to preserve the issue for further review.

The Government has filed an unopposed motion for summary affirmance, agreeing that the issue is foreclosed by Pedroza-Rocha. Alternately, the Government requests an extension of time to file its brief.

We conclude that, as the parties represent, Garcia-Suarez’s challenge is foreclosed. See Pedroza-Rocha, 933 F.3d at 496-98; Pierre-Paul, 930 F.3d at 689-93. Accordingly, the motion for summary affirmance is GRANTED, the alternative motion for an extension of time to file a brief is DENIED, and the judgment of the district court is AFFIRMED. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

FOOTNOTES

FOOTNOTE.  

PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.