Arguelles-Olivares v. Mukasey (5th Cir. 4/22/08)

OWEN, Garwood - Dennis dissenting

The 5th Cir held that:

(a) fraud relating to income tax is encompassed within the meaning of 101(a)(43)(M)(i), notwithstanding the specific provisions of (M)(ii), accord, Kawashima v. Gonzales, 503 F.3d 997, 1000-01 (9th Cir. 2007), cf. Lee v. Ashcroft, 368 F.3d 218, 220 (3d Cir. 2004),

(b) the PSR was admissible to prove the amount of loss in a fraud case. Rejecting Li v. Ashcroft, 389 F.3d 892, 897 (9th Cir. 2004) (holding that “if the record of conviction demonstrates that the jury in Petitioner’s case actually found that Petitioner caused, or intended to cause, a loss to the government of more than $10,000, the modified categorical approach will be satisfied,” but not otherwise); Dulal-Whiteway v. U.S. Dep’t of Homeland Sec., 501 F.3d 116, 133 (2d Cir. 2007).

Read opinion here: 

1.  101(a)(43)(M)(i) is unambiguous, and includes fraud offenses; inclusion of (M)(ii) does not render it ambiguous, as Congress may have thought (M)(ii) was necessary because some income tax evasion doesn't have a fraud element. 

   Congress may well have seen subsection 43(M)(ii) as a necessary addition to subsection 43(M) since neither fraud nor deceit is a specific element of the crime of tax evasion under 26 U.S.C. § 7201,15 as both the dissent in Lee and the Ninth Circuit recognized. Moreover, it is difficult to discern why Congress would want only a violation of 26 U.S.C. § 7201 involving $10,000 or more to constitute an aggravated felony, but not tax felonies involving fraud and deceit and the same amount of loss to the Government fisc. Although the maximum term of imprisonment for a violation of § 7201 is five years, while the maximum prison term for a violation of § 7206 is three years, both are serious crimes carrying the same maximum fines.

2.  The amount of loss requirement at (M)(i) can be proven by recourse to the PSR, because loss amt is not usually an element, but rather, most relevant to sentencing.  Only requirement is that evidence be reasonable, substantive, and probative.

   As explained in this court’s decision in James and the Third Circuit’s decision in Singh, an amount of loss suffered by a victim is rarely an element of a criminal offense.32 It seems highly unlikely that Congress intended for 8 U.S.C. § 1101(a)(43)(M)(i) to apply only to convictions under statutes that included a monetary loss to a victim in excess of $10,000 as an element of the offense. For example, Congress itself has not included monetary loss to victims in defining a number of crimes involving fraud or deceit, such as bank fraud.33 A conviction may be obtained for bank fraud under 18 U.S.C. § 1344 by proving the statutory elements. The amount of loss to the victim is a matter that is considered for sentencing purposes. As a matter of statutory construction, its seems that Congress intended for the inquiry under 8 U.S.C. § 1227(a)(2)(A)(iii)34 and § 1101(a)(43(M) to be whether, as a categorical matter, the alien was convicted of “an offense . . . that involves fraud or deceit” as an element of the offense or that the offense necessarily entails fraud or deceit.35 The requirement that the offense was one “in which the loss to the victim or victims exceeds $10,000”36 is a factual matter to be determined from the record of conviction, but the amount of loss is not required to be an element of the conviction itself.

   We do not quarrel with the dissent’s observation that we have applied the categorical or modified categorical approach in the immigration context.37 We have done so, however, when determining the nature or elements of the offense of conviction38 but not the amount of loss.39 The categorical and modified categorical approaches are “standards for establishing the fact of prior convictions, turning on the basis of trial or plea.”40 They are the Supreme Court’s “pragmatic conclusion about the best way to identify generic convictions . . . , while respecting Congress’s adoption of a categorical criterion that avoids subsequent evidentiary enquiries into the factual basis for the earlier conviction.”41 The modified categorical approach accordingly restricts the documents that may be consulted to determine whether a conviction was for a generic offense, and the focus is, properly, on the conviction.

   When the amount of loss to a victim is not an element of an offense, the focus should not be limited to the conviction itself. The amount of loss is relevant in a criminal prosecution primarily, if not exclusively, to sentencing. When a tribunal subsequently examines, for collateral purposes like those here, the amount of loss resulting from an offense, the reason for applying the modified categorical approach does not fully obtain.42 Our inquiry should be guided by the statute that initiates that inquiry. The Immigration and Nationality Act provides that the government “has the burden of establishing by clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is deportable.”43 The Act further specifies, “No decision on deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence.”44 We should determine, therefore, whether there was clear and convincing evidence that Arguelles- Olivares’s prior conviction involved an amount of loss greater than $10,000 and whether the evidence establishing that the conviction involved such a loss was reasonable, substantial, and probative. These are the standards that apply in determining whether the BIA erred in relying on the PSR to determine the amount of loss.

3.  Fact that he didn't challenge PSR findings in district court shows that they were correct.

   The district court adopted the PSR’s factual findings. Arguelles-Olivares does not dispute that he agreed to the facts set forth in the PSR including, specifically, the fact that the amounts of loss for each year were part of the plea agreement and that they totaled in excess of $10,000 for each year. Arguelles-Olivares’s failure to object to these facts in the PSR, his admission that they were correct, and the district court’s adoption of these facts is clear and convincing evidence that the loss to the government was in excess of $10,000.

Dennis, dissenting:

1.  On (M)(i) vs (M)(ii), would not reach the issue, in light of the PSR error - but would find more analysis required before CtApp decided between the 3d and 9th cirs.

2.  Would find that the modified categorical approach does not permit use of the PSR, no particular discussion of the majority's analysis of the loss amount prong.

3.  Considers James to be dicta

   James v. Gonzalez, 464 F.3d 505 (5th Cir. 2006)... in my opinion, does not represent a clear holding on anything in particular, but should be restricted as precedent to its facts and reconsidered en banc.

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