United States v. Guaman

United States Court of Appeals
for the Fifth Circuit

No. 20-50196
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Manuel Antonio Guaman,

Defendant—Appellant,

consolidated with
_____________

No. 20-50202
_____________

United States of America,

Plaintiff—Appellee,

versus

Manuel Antonio Guaman-Lema, also known as Efrain J.
Oliveras-Burgos, also known as Efrain Oliveras-Burgos, also
known as Efrain Oliveras, also known as Manuel Guaman, also
known as Manuel Antonio Guaman, also known as Efrain
Olivera-Burgos, also known as Manuel Antonio Lema-
Guaman,

Defendant—Appellant.
United States Court of Appeals
Fifth Circuit
FILED
October 2, 2020

Lyle W. Cayce
Clerk
Case: 20-50196 Document: 00515588092 Page: 1 Date Filed: 10/02/2020

No. 20-50196
c/w No. 20-50202
2

Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:20-CR-60-1
USDC No. 4:19-CR-517-1

Before King, Smith, and Wilson, Circuit Judges.
Per Curiam:*
Manuel Antonio Guaman appeals his guilty plea conviction for illegal
reentry into the United States after a previous deportation, a violation of 8
U.S.C. § 1326(a) and (b)(1). He also appeals a separate revocation judgment
but raises no challenge to the revocation of his supervised release. Guaman
contends, citing Pereira v. Sessions, 138 S. Ct. 2105, 2114 (2018), that his prior
removal does not satisfy the removal element of § 1326 because the notice to
appear did not provide 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. 19-6588), 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, Guaman raises it to preserve it for further review.

*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-50196
c/w No. 20-50202
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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 Guaman correctly concedes that his claim is
foreclosed by Pierre-Paul and Pedroza-Rocha, the motion for summary
affirmance is GRANTED and the Government’s alternative motion for an
extension of time to file a brief is DENIED AS MOOT. The judgments of
the district court are AFFIRMED.
Case: 20-50196 Document: 00515588092 Page: 3 Date Filed: 10/02/2020