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

                                                 FILED
                                                                         December 3, 2009
                                     No. 08-60549
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

SERGIO MARTIN PINEDA-GALVAN

                                                   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. A70 603 549


Before DAVIS, SMITH and OWEN, Circuit Judges.
PER CURIAM:*
       Sergio Martin Pineda-Galvan, a native and citizen of Mexico, petitions this
court for review of the decision of the Board of Immigration Appeals (BIA)
dismissing his appeal of the immigration judge’s order that Pineda-Galvan is
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) because he committed an
aggravated felony.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-60549

      Pineda-Galvan argues that the BIA improperly characterized his 2000
Texas conviction for possession of cocaine as an aggravated felony punishable
under 21 U.S.C. § 844(a) because he was not charged or convicted as a state
recidivist; the BIA should not have followed the hypothetical approach used by
this court in United States v. Sanchez-Villalobos, 412 F.3d 572 (5th Cir. 2005);
and the procedure under which he was convicted did not correspond to federal
procedure for recidivist drug convictions under 21 U.S.C. § 851. As we recently
explained in Carachuri-Rosendo v. Holder, 570 F.3d 263 (5th Cir. 2009), petition
for cert. filed (July 15, 2009) (No. 09-60), Pineda-Galvan’s arguments are
unavailing.
      Pineda-Galvan’s petition for review is DENIED.




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