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

                                                 FILED
                                                                         December 15, 2009

                                     No. 08-60586                      Charles R. Fulbruge III
                                   Summary Calendar                            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


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Barrington Berton Morgan-White petitions this court for review of the
decision of the Board of Immigration Appeals dismissing his appeal and
affirming the immigration 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.         In August 2007, Morgan-White was convicted for
possession of less than one gram of cocaine in violation of Texas law. Though


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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

Morgan-White was convicted in 2006 for attempted possession of a controlled
substance, a misdemeanor, he was not prosecuted under the Texas recidivist
statute.1
      Morgan-White contends the Board improperly characterized his 2007
Texas conviction for cocaine possession as an aggravated felony punishable
under the Controlled Substances Act 2 because he was neither prosecuted nor
convicted under a relevant federal or state recidivist offender statute. He argues
the Board should not have followed the hypothetical approach used by this court
in United States v. Sanchez-Villalobos3 because that case is inconsistent with
prior precedent of this court.            Morgan-White also argues that the Board’s
analysis in In re Carachuri-Rosendo 4 is entitled to some deference and that the
rule of lenity should be applied in favor of Morgan-White. Morgan-White’s
arguments are foreclosed by our decision in Carachuri-Rosendo v. Holder 5 and
accordingly, Morgan-White’s petition for review is DENIED.




      1
       T   EX .   PEN . CODE §§ 12.42 & 12.43.
      2
          21 U.S.C. § 844(a).
      3
          412 F.3d 572 (5th Cir. 2005).
      4
          24 I. & N. Dec. 382 (BIA 2007).
      5
          570 F.3d 263 (5th Cir. 2009), petition for cert. filed (July 15, 2009) (No. 09-60).

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