     Case: 09-60832     Document: 00511176652          Page: 1    Date Filed: 07/16/2010




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

                                                 FILED
                                                                            July 16, 2010
                                     No. 09-60832
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

MARXALL R. CAMPOS,

                                                   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. A041 743 290


Before KING, D EMOSS, and DENNIS, Circuit Judges
PER CURIAM:*
        Marxall R. Campos, a citizen and native of the Dominican Republic,
petitions this court for review of the order issued by the Board of Immigration
Appeals’ (BIA) affirming the Immigration Judge’s (IJ’s) determination that he
was ineligible for cancellation of removal.
        Relying on Carachuri-Rosendo v. Holder, 570 F.3d 263 (5th Cir. 2009),
reversed, ___ S. Ct. ___, 2010 WL 2346552 (U.S. June 14, 2010); United States
v. Cepeda-Rios, 530 F.3d 333 (5th Cir. 2008), and United States v. Sanchez-

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-60832   Document: 00511176652 Page: 2        Date Filed: 07/16/2010
                                No. 09-60832

Villalobos, 412 F.3d 572 (2005), abrogated in part by Lopez v. Gonzales, 549 U.S.
47, 58-60 (2006), the BIA held that Campos’s second misdemeanor criminal
possession of cocaine constituted an aggravated felony because it corresponded
to the recidivist provisions of 21 U.S.C. § 844(a). The Supreme Court has since
reversed Carachuri-Rosendo, rejecting this court’s “hypothetical approach” and
holding that “the defendant must . . . have been actually convicted of a crime
that is itself punishable as a felony under federal law.” Carachuri-Rosendo,
2010 WL 2346552, *11. As in Carachuri-Rosendo, Campos was not actually
convicted under the state recidivist statute. In accordance with the Supreme
Court’s ruling, Campos’s petition for review is GRANTED and the order of the
BIA is VACATED and REMANDED.




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