Case: 19-40417 Document: 00515356531 Page: 1 Date Filed: 03/24/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-40417 March 24, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
VICTOR REYNOSO-VALDEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:18-CR-1783-1
Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
Victor Reynoso-Valdez appeals his conviction for illegal reentry, for
which he entered a conditional guilty plea, reserving the right to appeal the
denial of his motion to dismiss the indictment. Reynoso-Valdez now argues
that his indictment is invalid because his prior removal order was void due to
a defective notice to appear (NTA) that failed to specify a date and time for his
removal hearing, thus, depriving the immigration court of jurisdiction. He
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-40417 Document: 00515356531 Page: 2 Date Filed: 03/24/2020
No. 19-40417
further argues that he satisfies 8 U.S.C. § 1326(d)’s three requirements to
collaterally attack his removal order.
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), but wishes to preserve
his claims for further review. The Government has filed an unopposed motion
for summary affirmance, agreeing that Reynoso-Valdez’s arguments are
foreclosed under Pedroza-Rocha and Pierre-Paul. Alternatively, the
Government requests a 30-day extension of time to file a brief.
In Pierre-Paul, we held that lack of date-and-time information does not
render an NTA defective and that, even if it did, the defect would not be
jurisdictional. Pierre-Paul, 930 F.3d at 689-93. In Pedroza-Rocha, we
reaffirmed that an NTA’s failure to specify a date and time of hearing is not
grounds for dismissing a later reentry prosecution and also determined that
the defendant could not collaterally attack his underlying removal order
without meeting the requirements of § 1326(d). Pedroza-Rocha, 933 F.3d at
498. Accordingly, Reynoso-Valdez’s substantially similar arguments are
foreclosed.
However, neither Pierre-Paul nor Pedroza-Rocha address Reynoso-
Valdez’s contention that he can escape the requirements of § 1326(d) under a
“futility” exception. This argument is of no consequence. An alien “must prove
all three prongs” of § 1326(d) to successfully challenge a prior removal order.
United States v. Cordova-Soto, 804 F.3d 714, 719 (5th Cir. 2015). In claiming
fundamental unfairness under the final prong of § 1326(d), Reynoso-Valdez
relies solely on the jurisdictional argument that Pedroza-Rocha foreclosed.
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No. 19-40417
Any arguments as to prongs one and two of § 1326(d) are, therefore, moot. See
Cordova-Soto, 804 F.3d at 719.
For the foregoing reasons, we DENY the Government’s motion for
summary affirmance, DENY as unnecessary its alternative motion for an
extension of time to file a brief, and AFFIRM the judgment of the district court.
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