Bharti v. Holder, No. 08-60387 (5th Cir. 2009)
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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 08-60387 Summary Calendar November 16, 2009 Charles R. Fulbruge III Clerk KIREN KUMAR BHARTI, also known as Kirenkumar Satish Bharti, Petitioner v. ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL, Respondent Petition for Review of an Order of the Board of Immigration Appeals BIA No. A75-780-661 Before JOLLY, WIENER, and ELROD, Circuit Judges. PER CURIAM:* Petitioner Kiren Kumar Bharti, a native and citizen of the United Kingdom, petitions for a review of an order of the Board of Immigration Appeals (BIA). It found him ineligible for cancellation of removal because his second 1998 Mississippi conviction for simple possession of a controlled substance was an aggravated felony for purposes of immigration law. * Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR. R. 47.5.4. No. 08-60387 Bharti s argument that Lopez v. Gonzales, 549 U.S. 47, 58-60 (2006), overruled United States v. Sanchez-Villalobos, 412 F.3d 572, 576-77 (5th Cir. 2005), is unavailing. See Carachuri-Rosendo v. Holder, 570 F.3d 263, 266-68 (5th Cir. 2009), petition for cert. filed (July 15, 2009) (No. 09-60). Further, we have rejected Bharti s argument that a second or subsequent state offense cannot be a felony under 21 U.S.C. § 844 unless the prosecutor gives notice pursuant to 21 U.S.C. § 851 of the intent to use a previous conviction to increase the sentence. See United States v. Cepeda-Rios, 530 F.3d 333, 336 n.11 (5th Cir. 2008). Carachuri-Rosendo affirmed the continuing validity of Cepeda-Rios. Carachuri-Rosendo, 570 F.3d at 266. Finally, in Carachuri-Rosendo we rejected Bharti s argument that a second possession offense that renders an alien an aggravated felon must have been prosecuted under a state recidivism law for it to be considered an aggravated felony for immigration purposes. See id. at 268. Under Carachuri-Rosendo, Bharti is considered to have committed an aggravated felony for immigration purposes because, since his admission to the United States, he has been convicted on more than one occasion of possession of a controlled substance. See id. at 266; § 844(a). Bharti is therefore ineligible for cancellation of removal. See Carachuri-Rosendo, 570 F.3d at 266-68; 8 U.S.C. § 1229b(a). PETITION DENIED. 2
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