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

                                                FILED
                                                              November 16, 2009
                               No. 08-60387
                             Summary Calendar                Charles R. Fulbruge III
                                                                     Clerk

KIREN KUMAR BHARTI, also known as Kirenkumar Satish Bharti,

                                           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. A75-780-661


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
      Petitioner Kiren Kumar Bharti, a native and citizen of the United
Kingdom, petitions for a review of an order of the Board of Immigration Appeals
(BIA). It found him ineligible for cancellation of removal because his second
1998 Mississippi conviction for simple possession of a controlled substance was
an aggravated felony for purposes of immigration law.




      *
      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should not be published and is not precedent except under the limited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. 08-60387

      Bharti’s argument that Lopez v. Gonzales, 549 U.S. 47, 58-60 (2006),
overruled United States v. Sanchez-Villalobos, 412 F.3d 572, 576-77 (5th Cir.
2005), is unavailing. See Carachuri-Rosendo v. Holder, 570 F.3d 263, 266-68
(5th Cir. 2009), petition for cert. filed (July 15, 2009) (No. 09-60). Further, we
have rejected Bharti’s argument that a second or subsequent state offense
cannot be a felony under 21 U.S.C. § 844 unless the prosecutor gives notice
pursuant to 21 U.S.C. § 851 of the intent to use a previous conviction to increase
the sentence. See United States v. Cepeda-Rios, 530 F.3d 333, 336 n.11 (5th Cir.
2008). Carachuri-Rosendo affirmed the continuing validity of Cepeda-Rios.
Carachuri-Rosendo, 570 F.3d at 266. Finally, in Carachuri-Rosendo we rejected
Bharti’s argument that a second possession offense that renders an alien an
aggravated felon must have been prosecuted under a state recidivism law for it
to be considered an aggravated felony for immigration purposes. See id. at 268.
      Under Carachuri-Rosendo, Bharti is considered to have committed an
aggravated felony for immigration purposes because, since his admission to the
United States, he has been convicted on more than one occasion of possession of
a controlled substance. See id. at 266; § 844(a). Bharti is therefore ineligible for
cancellation of removal. See Carachuri-Rosendo, 570 F.3d at 266-68; 8 U.S.C.
§ 1229b(a).
      PETITION DENIED.




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