United States v. Arroyo-Hernandez

United States Court of Appeals
for the Fifth Circuit

No. 20-50287
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Alfredo Arroyo-Hernandez, also known as Alfredo
Hernandez-Arroyo, also known as Arroyo Hernandez, also
known as Alfredo Arroyo Hernandez, also known as Alfredo
Hernandez, also known as Alfredo Arroyo, also known as
Alfredo Hernandez Arroyo,

Defendant—Appellant,

consolidated with
_____________

No. 20-50288
_____________

United States of America,

Plaintiff—Appellee,

versus

Alfredo Arroyo-Hernandez,

Defendant—Appellant.
United States Court of Appeals
Fifth Circuit
FILED
September 17, 2020

Lyle W. Cayce
Clerk
Case: 20-50287 Document: 00515569404 Page: 1 Date Filed: 09/17/2020

No. 20-50287
c/w No. 20-50288
2

Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:19-CR-574-1
USDC No. 4:16-CR-94-3

Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
Alfredo Arroyo-Hernandez appeals his guilty plea conviction under 8
U.S.C. § 1326. He also appeals a separate revocation judgment but raises no
challenge to the revocation of his supervised release. He contends, citing
Pereira v. Sessions, 138 S. Ct. 2105 (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, 206 L. Ed. 2d 940
(2020), we relied on Pierre-Paul v. Barr, 930 F.3d 684, 688-89 (5th Cir. 2019),
cert. denied, 206 L. Ed. 2d 854 (2020), 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, Arroyo-
Hernandez 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

*
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opinion should not be published and is not precedent except under the limited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.
Case: 20-50287 Document: 00515569404 Page: 2 Date Filed: 09/17/2020

No. 20-50287
c/w No. 20-50288
3
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 Arroyo-Hernandez 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: 20-50287 Document: 00515569404 Page: 3 Date Filed: 09/17/2020