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

                                                FILED
                                                                November 12, 2009
                                 No. 08-60234
                               Summary Calendar                Charles R. Fulbruge III
                                                                       Clerk

DAVID JOSHUA MARTINEZ-VALERO,

                                             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. A26 502 097


Before REAVLEY, GARZA, and OWEN, Circuit Judges.
PER CURIAM:*
      David Joshua Martinez-Valero, a native and citizen of Mexico, petitions
this court to review the decision of the Board of Immigration Appeals (BIA)
finding    that   Martinez-Valero   was    removable      pursuant   to   8   U.S.C.
§ 1227(a)(2)(A)(iii) and ineligible for cancellation of removal pursuant to 8 U.S.C.
§ 1229b(a)(3). Martinez-Valero, who was convicted in state court of possession
of controlled substances on more than one occasion since his admission to the



      *
      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should not be published and is not precedent except under the limited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. 08-60234

United States, contends that his second state simple possession conviction
should not be treated as an aggravated felony because the Fifth Circuit decision
allowing such treatment is no longer valid law, because the actual conviction
was not an aggravated felony conviction, and because Martinez-Valero was not
given notice in the state proceedings of the second conviction that the prior
conviction would be used to increase his sentence as would have been required
for a federal recidivist possession charge. See 21 U.S.C. §§ 844, 851.
      The BIA correctly determined that Martinez-Valero had committed an
aggravated felony for immigration law purposes. See Carachuri-Rosendo v.
Holder, 570 F.3d 263, 266-68 (5th Cir. 2009), petition for cert. filed (July 15,
2009) (No. 09-60); 8 U.S.C. § 1101(a)(43)(B); 18 U.S.C. §§ 924(c)(2), 3559(a).
Therefore, Martinez-Valero was both removable under § 1227(a)(2)(A)(iii) and
ineligible for cancellation of removal under 8 U.S.C. § 1229b. Moreover, the
federal notice requirement of 21 U.S.C. § 851 did not apply to the state court
proceedings that resulted in Martinez-Valero’s second possession conviction. See
United States v. Cepeda-Rios, 530 F.3d 333, 336 n.11 (5th Cir. 2008); see also
Carachuri-Rosendo, 570 F.3d at 268.
      Martinez-Valero’s petition for review is DENIED.




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