USA v. Cirilo Hernandez-Rebollar, No. 19-50269 (5th Cir. 2019)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on December 27, 2019.
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Case: 19-50269 Document: 00515251192 Page: 1 Date Filed: 12/30/2019 REVISED December 30, 2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 19-50269 Summary Calendar UNITED STATES OF AMERICA, FILED December 27, 2019 Lyle W. Cayce Clerk Plaintiff-Appellee v. CIRILO HERNANDEZ-REBOLLAR, also known as Cirilio HernandezRebollar, also known as Ciril Hernandez, also known as Cirrilo Hernandez, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 1:18-CR-311-1 Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges. PER CURIAM: * Cirilo Hernandez-Rebollar appeals his conviction of illegal reentry into the United States. He entered a conditional guilty plea to the indictment, reserving the right to challenge the district court’s denial of his motion to 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 19-50269 Document: 00515251192 Page: 2 Date Filed: 12/30/2019 No. 19-50269 dismiss the indictment. The district court sentenced him to 30 months of imprisonment and three years of supervised release. Now, Hernandez-Rebollar asserts, as he did in the district court, that his prior removal was invalid because the notice to appear which commenced the proceeding was defective for failing to specify a date and time for his removal hearing. He contends therefore that the removal order is void and that the Government cannot establish an essential element of the illegal reentry offense under 8 U.S.C. § 1326. He concedes that this challenge is 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), but 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. Alternately, the Government requests an extension of time to file its 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). Pedroza-Rocha concluded that the notice to appear was not deficient for failing to specify a date and time for the hearing, that any such alleged deficiency had not deprived the immigration court of jurisdiction, and that Pedroza-Rocha could not collaterally attack his notice to appear without first exhausting his administrative remedies. 933 F.3d at 496–98. Gomez-Lopez’s arguments are, as he concedes, foreclosed by this case. See id; see also PierrePaul v. Barr, 930 F.3d 684, 688-90 (5th Cir. 2019). Accordingly, the Government’s GRANTED, motion for summary 2 affirmance is the Case: 19-50269 Document: 00515251192 Page: 3 Date Filed: 12/30/2019 No. 19-50269 Government’s alternative motion for an extension of time to file a brief is DENIED, and the judgment of the district court is AFFIRMED. 3
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