Case: 08-60586   Document: 00511151148     Page: 1   Date Filed: 06/23/2010




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

                                                FILED
                                                                  June 23, 2010
                                 No. 08-60586
                               Summary Calendar                   Lyle W. Cayce
                                                                       Clerk

BARRINGTON BERTON MORGAN-WHITE

                                             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. A90 395 622


ON PETITION FOR REHEARING EN BANC
(Opinion 12/15/09, 5 Cir., __________, ___________, F.3d ___________)


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:
        Treating the Petition for Rehearing En Banc as a Petition for Panel
Rehearing, the Petition for Panel Rehearing is GRANTED.
        Morgan-White petitioned this court for review of the decision of the Board
of Immigration Appeals dismissing his appeal and affirming the immigration
judge’s order that Morgan-White is ineligible for cancellation of removal
pursuant to 8 U.S.C. § 1229b(a) because he committed an aggravated felony.
   Case: 08-60586        Document: 00511151148 Page: 2           Date Filed: 06/23/2010
                                     No. 08-60586

This court affirmed the Board’s decision, finding Morgan-White’s appeal
foreclosed by our decision in Carachuri-Rosendo v. Holder.1 The Supreme Court
has since reversed that decision, 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.”2                As in Carachuri-
Rosendo, Morgan-White was not actually convicted under the state recidivist
statute. In accordance with the Supreme Court’s ruling, we now REVERSE and
REMAND. The outstanding motion is moot.




      1
          

(5th Cir. 2009).
      2
          Carachuri-Rosendo v. Holder, No. 09-60 (U.S., June 14, 2010).

                                              2