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

                                                FILED
                                                              November 17, 2009
                               No. 09-60102
                             Summary Calendar                Charles R. Fulbruge III
                                                                     Clerk

DAMON FRANKLIN SPENCE,

                                           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. A39 747 558


Before GARWOOD, SMITH and STEWART, Circuit Judges.
PER CURIAM:*
      Damon Franklin Spence petitions this court for review of an order by the
Board of Immigration Appeals (BIA) affirming the immigration judge’s (IJ)
denial of his application for cancellation of removal and removing him from the
United States. Spence argues that his New York state convictions for criminal
possession of marijuana do not constitute aggravate felonies that rendered him
ineligible for cancellation of removal because he was not prosecuted as a



      *
      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should not be published and is not precedent except under the limited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. 09-60102

recidivist under New York law. He also argues that under the categorical
approach espoused by the Supreme Court in Lopez v. Gonzalez, 549 U.S. 47
(2006), his convictions of simple possession do not constitute drug trafficking
crimes under the Controlled Substances Act (CSA). Spence’s arguments are
foreclosed by our decision in Carachuri-Rosendo v. Holder, 570 F.3d 263 (5th Cir.
2009), petition for cert. filed (July 15, 2009) (No. 09-60). Further, his 1998 simple
possession conviction was final before his August and December 2007
convictions.   Cf. Smith v. Gonzales, 468 F.3d 272, 277-78 (5th Cir. 2006)
(discussing New York law; offense not final until one-year period for seeking
discretionary review had passed).
      Accordingly, Spence’s petition for review is DENIED.




                                         2
