(F)  Repayment of Restituion.  Several federal courts have ruled that if a defendant makes restitution of all or part of a loss prior to sentencing, the “actual loss” would be reduced,[676] but the “intended loss” would not be affected absent proof the repayment was part of the original intention.[677]  This may be especially true in light of Matter of Onyido.[678]  See § 7.82(D), supra.  However, one can argue that under the plain language of the aggravated felony definition, the loss should be defined as the “actual” rather than “intended” loss,[679] and therefore restitution before sentencing should be allowed to “pay down” the loss to $10,000 or less in order to avoid consideration of the conviction as an aggravated felony.

[676] United States v. Galbraith, 20 F.3d 1054 (10th Cir. 1994).

[677] United States v. Burridge, 191 F.3d  1297 (10th Cir. 1999); United States v. Holiusa, 13 F.3d 1043 (7th Cir. 1994); cf. United States v. Klisser, 190 F.3d 34 (2d Cir. 1999); United States v. Studevent, 116 F.3d 1559, 1561-1564 (D.C.Cir. 1997).

[678] Matter of Onyido, 22 I. & N. Dec. 552 (BIA 1999).

[679] See, e.g., INA § 101(a)(43)(M), 8 U.S.C. § 1101(a)(43)(M) (“The term aggravated felony means . . . (M) an offense that (i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000 . . . .”) (emphasis added).