Case: 19-50392 Document: 00515321101 Page: 1 Date Filed: 02/26/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-50392 February 26, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
WILMER JOSE DE LA CRUZ-PUAC, also known as Wilmer De La Cruz-
Gonzalez, also known as Wilmer Jose De-La Cruz, also known as Jose De La
Cruz-Gonzalez,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:18-CR-352-1
Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Wilmer Jose De La Cruz-Puac appeals his conviction for illegal reentry,
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, after which the district court sentenced him to 10 months of
imprisonment and three years of supervised release.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50392 Document: 00515321101 Page: 2 Date Filed: 02/26/2020
No. 19-50392
As he did in the district court, De La Cruz-Puac 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, 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). He has
raised the arguments to preserve them for further review. The Government
filed an unopposed motion for summary affirmance because the arguments are
foreclosed by Pedroza-Rocha and Pierre-Paul. The Government, alternatively,
requests an extension of time to file its response 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). De La Cruz-Puac’s arguments are indeed foreclosed. See
Pedroza-Rocha, 933 F.3d at 496–98. 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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