          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                 FILED
                                                                June 23, 2010
                               No. 08-60586
                             Summary Calendar                   Lyle W. Cayce
                                                                     Clerk

BARRINGTON BERTON MORGAN-WHITE

                                           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. A90 395 622


ON PETITION FOR REHEARING EN BANC
(Opinion 12/15/09, 5 Cir., __________, ___________, F.3d ___________)


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Treating the Petition for Rehearing En Banc as a Petition for Panel
Rehearing, the Petition for Panel Rehearing is GRANTED.
      Morgan-White petitioned this court for review of the decision of the Board
of Immigration Appeals dismissing his appeal and affirming the immigration

      *
      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should not be published and is not precedent except under the limited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.
                                   No. 08-60586

judge’s order that Morgan-White is ineligible for cancellation of removal
pursuant to 8 U.S.C. § 1229b(a) because he committed an aggravated felony.
This court affirmed the Board’s decision, finding Morgan-White’s appeal
foreclosed by our decision in Carachuri-Rosendo v. Holder.1 The Supreme Court
has since reversed that decision, rejecting this court’s “hypothetical approach”
and holding that “the defendant must . . . have been actually convicted of a crime
that is itself punishable as a felony under federal law.”2 As in Carachuri-
Rosendo, Morgan-White was not actually convicted under the state recidivist
statute. In accordance with the Supreme Court’s ruling, we now REVERSE and
REMAND. The outstanding motion is moot.




      1
          570 F.3d 263 (5th Cir. 2009).
      2
          Carachuri-Rosendo v. Holder, No. 09-60 (U.S., June 14, 2010).

                                          2
