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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
2