Filed: Jan. 29, 2020
Latest Update: Mar. 03, 2020
Summary: Case: 19-20382 Document: 00515289825 Page: 1 Date Filed: 01/29/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 19-20382 January 29, 2020 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ODWAR GEOVANY PALOMEQUE-RAMOS, also known as Jose Lopez, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 4:19-CR-24-1 Before CLEMENT, ELROD, and
Summary: Case: 19-20382 Document: 00515289825 Page: 1 Date Filed: 01/29/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 19-20382 January 29, 2020 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ODWAR GEOVANY PALOMEQUE-RAMOS, also known as Jose Lopez, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 4:19-CR-24-1 Before CLEMENT, ELROD, and O..
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Case: 19-20382 Document: 00515289825 Page: 1 Date Filed: 01/29/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-20382 January 29, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ODWAR GEOVANY PALOMEQUE-RAMOS, also known as Jose Lopez,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CR-24-1
Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
Odwar Geovany Palomeque-Ramos appeals his conviction for illegal
reentry into the United States 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. Relying on Pereira v. Sessions,
138 S. Ct. 2105 (2018), Palomeque-Ramos argues that his prior removal order
was invalid because the notice to appear was defective for failing to include the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-20382 Document: 00515289825 Page: 2 Date Filed: 01/29/2020
No. 19-20382
date and time of his removal hearing. Therefore, Palomeque-Ramos asserts
that his prior removal could not support a conviction for illegal reentry under
§ 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), 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 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. 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). In
Pedroza-Rocha, 933 F.3d at 492-93, the district court
dismissed an indictment charging the defendant with a violation of § 1326
based on the reasoning that the notice to appear was defective because it did
not specify a date and time for the removal hearing and that, therefore, the
removal order was void. Our court reversed, concluding that the notice to
appear was not defective, that the alleged defect would not deprive an
immigration court of jurisdiction, and that § 1326(d) barred the defendant from
collaterally attacking his removal order because he had failed to exhaust his
administrative remedies.
Id. at 496-98.
Pedroza-Rocha forecloses Palomeque-Ramos’s arguments. See
id.
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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