Barrington Berton MORGAN-WHITE, Petitioner v. Eric H HOLDER, Jr., U.S. Attorney General, Respondent, 382 F. App'x 417

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. This court affirmed the Board’s decision, finding Morgan-White’s appeal foreclosed by our decision in Carachuri-Rosendo v. Holder. 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.” As in Cara-churi-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. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . 570 F.3d 263 (5th Cir.2009). . Carachuri-Rosendo v. Holder, - U.S. -, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010).