Case: 20-50004      Document: 00515466667         Page: 1    Date Filed: 06/25/2020




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

                                                                                FILED
                                    No. 20-50004                            June 25, 2020
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
Consolidated with 20-50015

UNITED STATES OF AMERICA,

              Plaintiff-Appellee

v.

BENITO MORENO-RODRIGUEZ,

              Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 4:19-CR-291-1
                            USDC No. 4:19-CR-327-1


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Benito Moreno-Rodriguez entered a conditional guilty plea to illegal
reentry into the United States, reserving the right to challenge the district
court’s denial of his motion to dismiss the indictment. He now appeals the
denial of his motion to dismiss the indictment. He also appeals a separate


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 20-50004       Document: 00515466667    Page: 2   Date Filed: 06/25/2020


                                   No. 20-50004
                                 c/w No. 20-50015

revocation judgment but raises no challenge to the revocation of his supervised
release.
      As to his illegal reentry conviction, Moreno-Rodriguez 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, 

(5th Cir. 2019), cert. denied,

(U.S. May 18, 2020) (No. 19-6588), and he explains that he
has raised the arguments to preserve them for further review.                   The
Government has filed an unopposed motion for summary affirmance, agreeing
that the issues are foreclosed under Pedroza-Rocha.               The Government,
alternatively, 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, 

,
1162 (5th Cir. 1969). Moreno-Rodriguez’s arguments are indeed foreclosed.
See 

; see also Pierre-Paul v. Barr, 

, 688-93 (5th Cir. 2019), cert. denied, 

(U.S. Apr. 27, 2020)
(No. 19-779).
      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 judgments of the district court are
AFFIRMED.




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