United States v. Anastacio Castruita-Escobedo ( 2020 )

Case: 19-51030 Document: 00515466779 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. 19-51030 June 25, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ANASTACIO CASTRUITA-ESCOBEDO, also known as Armando Castro,
Defendant-Appellant
_______________________________________________
Consolidated with 19-51031
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
ANASTACIO CASTRUITA-ESCOBEDO, also known as Armando Castro, also
known as Armando Castro-Escobedo,
Defendant - Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:15-CR-255-1
USDC No. 4:19-CR-36-1
Case: 19-51030 Document: 00515466779 Page: 2 Date Filed: 06/25/2020
No. 19-51030
Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM: *
Anastacio Castruita-Escobedo pleaded guilty to illegal reentry following
removal in violation of 8 U.S.C. § 1326. He appeals the denial of his motion to
dismiss the indictment. He also appeals a separate revocation judgment but
raises no challenge to the revocation of his supervised release.
As to his illegal reentry conviction, Castruita-Escobedo maintains that
his order of removal was defective—and, thus, his removal was void—because
the notice to appear did not specify a date and time for the removal hearing;
he suggests that the invalidity of his removal precludes it from being used to
support his illegal reentry conviction. Further, he asserts that he may attack
collaterally his removal order under § 1326(d) because the insufficiency of the
notice to appear—which invalidated the removal proceeding—excused him
from having to establish administrative exhaustion and deprivation of judicial
review and rendered the proceeding fundamentally unfair. He acknowledges
that his arguments are foreclosed by United States v. Pedroza-Rocha, 933 F.3d
490 (5th Cir. 2019), cert. denied, 2020 WL 2515686 (U.S. May 18, 2020) (No.
19-6588), and Pierre-Paul v. Barr, 930 F.3d 684 (5th Cir. 2019), cert. denied,
2020 WL 1978950 (U.S. Apr. 27, 2020) (No. 19-779), and indicates that he
raises the issues to preserve them for further review.
The Government agrees that the issues are foreclosed by Pedroza-Rocha
and Pierre-Paul and has filed an unopposed motion for summary affirmance.
Alternatively, the Government requests an extension of time to file a brief.
* 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.
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Case: 19-51030 Document: 00515466779 Page: 3 Date Filed: 06/25/2020
No. 19-51030
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 Pierre-Paul, this court determined that a notice to
appear that omits the date, time, or place of a removal hearing is not defective
and, in any event, the defect would not be jurisdictional. 930 F.3d at 689-93.
Applying Pierre-Paul, this court in Pedroza-Rocha concluded that the notice to
appear was not deficient, that the purported deficiency would not deprive the
immigration court of jurisdiction, and that the defendant had to exhaust his
administrative remedies before he could collaterally attack his removal order.
933 F.3d at 496-98. Therefore, the arguments that Castruita-Escobedo has
asserted on appeal are foreclosed. See Pedroza-Rocha, 933 F.3d at 496-98;
Pierre-Paul, 930 F.3d at 689-93.
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. The judgments of the district court are AFFIRMED.
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