Bharti v. Holder

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should not be published and is not precedent except under the limited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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