United States v. Agapito Jaramillo-Vasquez

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 7, 2020
• Docket: 20-20013
• Status: Unpublished

Opinion

Case: 20-20013 Document: 00515480245 Page: 1 Date Filed: 07/07/2020

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit

FILED No. 20-20013 July 7, 2020 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

AGAPITO JARAMILLO-VASQUEZ,

Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:19-CR-167-1

Before DAVIS, SMITH, and HIGGINSON, Circuit Judges. PER CURIAM: * Agapito Jaramillo-Vasquez appeals his conviction under 8 U.S.C. § 1326 for unlawful presence in the United States. Citing Pereira v. Sessions, 138 S. Ct. 2105 (2018), he contends that his prior removal does not satisfy the removal element of § 1326 because the notice to appear did not state the date or time of the removal hearing. In United States v. Pedroza-Rocha, 933 F.3d 490, 497– 98 (5th Cir. 2019), cert. denied, 2020 WL 2515686 (U.S. May 18, 2020) (No. 19-

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Case: 20-20013 Document: 00515480245 Page: 2 Date Filed: 07/07/2020

No. 20-20013

6588), we relied on Pierre-Paul v. Barr, 930 F.3d 684, 688–89 (5th Cir. 2019), cert. denied, 2020 WL 1978950 (U.S. Apr. 27, 2020) (No. 19-779), 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, Jaramillo-Vasquez 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 Jaramillo-Vasquez correctly concedes that his claim is foreclosed by Pierre-Paul and Pedroza-Rocha, the 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.