UNITED STATES v. ACUNA DUENAS (2020)

Aaron Josue Acuna-Duenas was convicted of illegal reentry after removal, in violation of 8 U.S.C. § 1326, and was sentenced to 32 months of imprisonment. He challenges the district court’s denial of his motion to dismiss the indictment; he reserved the right to appeal this ruling by entering a conditional guilty plea. See Fed. R. Crim. P. 11(a)(2). Relying on Pereira v. Sessions, ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), Acuna-Duenas contends that the prior removal order that was used to support his illegal reentry conviction was void because the notice to appear failed to specify a hearing date or time. He acknowledges that the issue is foreclosed under this court’s decisions in 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), but he states that he wishes to preserve the issue for further review. The Government has filed an unopposed motion for summary affirmance, agreeing that the issue is foreclosed under Pedroza-Rocha and Pierre-Paul. In the alternative, the Government requests an extension of time to file a 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). The parties are correct that Acuna-Duenas’s arguments are foreclosed. See Pedroza-Rocha, 933 F.3d at 492-98. 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PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.