IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-50756

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

LUIS CARLOS GONZALEZ-HERRERA, also known as Luis Carlos Gonzales 

Herrera, also known as Luis Carlos Herrera-Gonzalez, also known as Carlos 

Luis Gonzalez-Herrera,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 4:18-CR-573-1

Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.

PER CURIAM:*

Luis Carlos Gonzalez-Herrera pleaded guilty to illegal reentry and was 

sentenced to 24 months in prison and three years of supervised release. 

Gonzalez-Herrera’s guilty plea was conditional, reserving the right to 

challenge the district court’s denial of a motion to dismiss the indictment. On 

appeal he reiterates his argument that the immigration court in his initial 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

February 27, 2020

Lyle W. Cayce

Clerk

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removal proceeding never acquired jurisdiction because his notice to appear

failed to specify a date and time of hearing. This, he contends, renders the 

removal order entered against him a nullity, leaving the Government unable 

to prove an essential element of the offense. As to 8 U.S.C. § 1326(d), which 

limits an alien’s ability to collaterally attack a removal order, GonzalezHerrera asserts that it poses no obstacle here because his argument is 

jurisdictional in nature and because, given the state of the law at the time of 

his initial removal proceeding, he is excused from meeting the requirements of 

§ 1326(d)(1) and (2). 

Gonzalez-Herrera concedes that these 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 for the most part we agree. There 

too the defendant argued that failure to include date-and-time information in 

a notice to appear is a jurisdictional defect, and we found this argument to be 

both without merit and barred by § 1326(d) for failure to exhaust. 933 F.3d at 

496-98. Those conclusions apply with equal force to the identical and similarly 

unexhausted claim of Gonzalez-Herrera. 

Pedroza-Rocha does not speak to Gonzalez-Herrera’s contention that he 

can escape the strictures of § 1326(d)(1) and (2) under a “futility” exception, 

but other authority shows this argument to be unavailing. 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), GonzalezHerrera relies solely on the jurisdictional argument that Pedroza-Rocha

foreclosed. Any argument as to prongs one and two is therefore moot. See 

United States v. Mendoza-Mata, 322 F.3d 829, 832 (5th Cir. 2003) (“If the alien 

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fails to establish one prong of the three part test, the Court need not consider 

the others.”).

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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