UNITED STATES v. DE LA CRUZ PUAC (2020)

Wilmer Jose De La Cruz-Puac appeals his conviction for illegal reentry, in violation of 8 U.S.C. § 1326. He entered a conditional guilty plea, reserving the right to challenge the district court’s denial of his motion to dismiss the indictment, after which the district court sentenced him to 10 months of imprisonment and three years of supervised release.

As he did in the district court, De La Cruz-Puac argues that his prior removal was invalid because it followed a defective notice to appear that failed to specify a date and hearing time. He further contends that he may collaterally attack the removal proceeding without exhausting his administrative remedies. He concedes that his 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 Pierre-Paul v. Barr, 930 F.3d 684 (5th Cir. 2019), petition for cert. filed (U.S. Dec. 16, 2019) (No. 19-779). He has raised the arguments to preserve them for further review. The Government filed an unopposed motion for summary affirmance because the arguments are foreclosed by Pedroza-Rocha and Pierre-Paul. The Government, alternatively, requests an extension of time to file its response brief.

Summary affirmance is appropriate 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). De La Cruz-Puac’s arguments are indeed foreclosed. See Pedroza-Rocha, 933 F.3d at 496–98. Accordingly, the Government’s 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.

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PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.