# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 20

- 50196 Summary Calendar
**United States of America,** Plaintiff

— Appellee **,**
versus **Manuel Antonio Guaman,** Defendant

— Appellant **,**
**consolidated with**

**_____________ No. 20** 

**- 50202** 

**_____________ United States of America,**  Plaintiff

— Appellee **,**
versus **Manuel Antonio Guaman**

**- Lema,**  also known as **Efrain J. Oliveras** 

**- Burgos,**  also known as **Efrain Oliveras**

**- Burgos,**  also known as **Efrain Oliveras,** also known as **Manu el Guaman,**  also known as **Manuel Antonio Guaman,** also known as **Efrain Olivera** 

**- Burgos,**  also known as **Manuel Antonio Lema**

  ** Guaman,** Defendant

— Appellant

**.** United States Court of Appeals Fifth Circuit 

### FILED October 2, 2020

Lyle W. Cayce Clerk Case: 20-50196 Document: 00515588092 Page: 1 Date Filed: 10/02/2020No. 20

- 50196 c/w No. 20

- 50202

2 Appeal s from the United States District Court for the Western District of Texas USDC No. 4:20

- CR

- 60

- 1 USDC No. 4:19

- CR

- 517

- 1

Before **King, Smith,** and **Wilson,** Circuit Judges

**. Per Curiam**  **:** * Manuel Antonio Guaman appeals his guilty plea conviction for illegal reentry into the United States after a previous deportation, a violation of 8 U.S.C. § 1326(a) and (b)(1). He also appeals a separate revocation judgment but raises no challenge to the revocation of his supe rvised release. Guaman contends, c iting Pereira v. Sessions , 138 S. Ct. 2105 , 2114 (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 Unite d States v. Pedroza

- Rocha , 933 F.3d 490, 497

– 98 (5th Cir. 2019), cert. denied , 2020 WL 2515686 (U.S. May 18, 2020) (No. 19

- 6588), we relied on Pierre

- Paul v. Barr , 930 F.3d 684, 688

– 89 (5th Cir. 2019), cert. denied , 2020 WL 1978950 (U.S. Apr. 27, 2020) (No . 19

- 779), 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. Addi tionally, 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, Guaman raises it t o preserve it for further review.

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has det ermined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. Case: 20-50196 Document: 00515588092 Page: 2 Date Filed: 10/02/2020No. 20

- 50196 c/w No. 20

- 50202

3 The Government has filed an unopposed motion for summary affirmance, which is proper 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). Because Guaman 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 **DENIE D**  **AS MOOT**

**.** T he judgment s of the district court are **AFFIRMED**

. Case: 20-50196 Document: 00515588092 Page: 3 Date Filed: 10/02/2020