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

                                                FILED
                                                                October 26, 2009
                                No. 07-60285
                              Summary Calendar                Charles R. Fulbruge III
                                                                      Clerk

GORDON ANTHONY STRAKER,

                                           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. A34 989 174


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
      Gordon Anthony Straker petitions for review of an order by the Board of
Immigration Appeals (BIA) affirming the Immigration Judge’s (IJ) order that he
be removed from the United States. Straker also implicitly challenges the BIA’s
denial of his motion to reopen. Straker argues that his convictions under N.Y.
P ENAL L AW § 221.40 for sale of marijuana in the fourth degree do not constitute
aggravated felonies that rendered him ineligible for cancellation of removal.



      *
      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should not be published and is not precedent except under the limited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. 07-60285

Straker has abandoned any challenge to the denial of his applications for
withholding of removal and for protection under the Convention Against
Torture. See Thuri v. Ashcroft, 380 F.3d 788, 793 (5th Cir. 2004).
      Under 8 U.S.C. § 1252(a)(2)(C), federal courts lack jurisdiction to review
a final order of removal against an alien who is removable because he was
convicted of an aggravated felony. Nehme v. INS, 252 F.3d 415, 420 (5th Cir.
2001). Furthermore, to the extent that Straker challenges the BIA’s denial of his
motion to reopen, we lack jurisdiction to consider those arguments because
Straker did not file a separate petition for review. See Guevara v. Gonzales, 450
F.3d 173, 176 (5th Cir. 2006).    However, we retain jurisdiction to consider
constitutional claims or questions of law raised upon a petition for review.
§ 1252(a)(2)(D); Carachuri-Rosendo v. Holder, 570 F.3d 263, 265 (5th Cir. 2009),
petition for cert. filed (July 15, 2009) (No. 09-60). Because the question whether
Straker’s conviction is an aggravated felony is a legal one, this court has
jurisdiction to review his petition. See Carachuri-Rosendo, 570 F.3d at 265.
      Straker previously was convicted of criminal possession of a controlled
substance in the seventh degree and criminal sale of marijuana in the fourth
degree. This court recently held that a recidivist state misdemeanor conviction
for drug possession will render an alien ineligible for cancellation of removal
because the offense qualifies as an aggravated felony under the recidivist
enhancement provision of 21 U.S.C. § 844(a). Carachuri-Rosendo, 570 F.3d at
264, 266-67. Thus, Straker’s conviction of criminal sale of marijuana in the
fourth degree, which followed his prior state misdemeanor drug conviction, was
punishable as a federal felony under the recidivist provision of § 844(a). Straker
therefore committed an “aggravated felony” that rendered him removable under
8 U.S.C. § 1227(a)(2)(A)(iii).
      PETITION FOR REVIEW DENIED




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