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should not be published and is not precedent except under the limited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allowing such treatment is no longer valid law, because the actual conviction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.
2