(B)  Specific Tactics.  Important questions remain unanswered regarding these categories, but certain tactics can be suggested.

 

                (1)  Avoid Restitution Order Exceeding $10,000.  The safest strategy is to avoid any reference in the record of conviction to any loss in excess of $10,000, including in any restitution order. 

 

                (2)  Repay Loss Before Sentence to Avoid Restitution Order.  In some cases the defendant may be able to delay conviction and sentencing for some period of time to make it possible to pay restitution voluntarily, in order to have a lower sum reflected on the record of conviction.  This gives immigration counsel an argument that since no restitution in excess of the trigger amount was ordered, there is no evidence in the record of conviction that the loss was in excess of that amount.  See § 19.74, infra. 

 

(3)  Plea Agreement Loss Amount.  The Ninth Circuit held in Chang v. INS,[63] that even where the total loss to all victims was, in fact, over $10,000, as reflected in the restitution order contained in the judgment, a conviction of one count of bank fraud for passing a $605.30 bad check did not involve a loss over $10,000, since the plea agreement specified the loss from the count of conviction to be the amount of the check.  The court also rejected the argument that the amount of the restitution order, in excess of $10,000, was sufficient to show that the offense was an aggravated felony.[64]  See § 19.74, infra.

 

(4)  Unintentional Loss.  In the federal criminal context, the Ninth Circuit ruled that the loss to the victim does not include losses attributable to intervening, unforeseeable, and independent crimes.[65]  See § 19.74, infra.  Counsel can attempt to have the court classify portions of any restitution amount as amounts that would not be considered part of the “loss to the victim” of the offense. 

 

                (5)  Actual versus Intended Loss.  It is not entirely clear, in every jurisdiction, whether the aggravated felony fraud offense definition includes only actual loss to the victim(s), or whether a loss intended by the defendant is sufficient to render the offense an aggravated felony, even if the victim(s) did not suffer the intended loss.  See § § 10.82-10.84, infra.  Counsel should make the record clear, where applicable, that no loss (or only a loss of $10,000 or less) was in fact suffered by the victim(s) of the offense, to give the client the opportunity to take advantage of this argument if removal proceedings result from the conviction.  See § 19.74, infra.

 

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,[66] but the “intended loss” would not be affected absent proof the repayment was part of the original intention.[67]  This may be especially true in light of Matter of Onyido.[68]  See 19.74(D), infra.  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,[69] 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.[70]

(6)  Differences Between Restitution and Loss.  Counsel should make clear, on the record, if the definition of restitution in the particular jurisdiction has little or no relationship between the concept of actual loss to the victim.  See § 19.74, infra.  “The ordinary meaning of ‘restitution’ is ‘[a]n act of restoring to the proper owner something taken away, lost, or surrendered.’ Webster’s II New Riverside University Dictionary 1002 (1984); accord 18 U.S.C. § 3663A(2) (defining ‘victim’ entitled to restitution as ‘a person directly and proximately harmed as a result of the commission of an offense’).”[71]  In the criminal context, however, restitution can include court costs, fines, and other payments, so it is not necessarily an accurate reflection of the amount of loss to the victim.  The relationship between loss to the victim and the amount of restitution ordered by a court is far from clear.[72]  See N. Tooby & J. Rollin, Aggravated Felonies § 6.40 (2006) for further discussion.

               

                (7)  Post-Conviction Relief to Alter Restitution Order.  Where a restitution order establishes a loss to the victim in excess of $10,000, counsel can attempt to obtain post-conviction relief, but the mere fact that the court alters the restitution order, without a finding that the new order accurately reflects the amount of loss to the victim, will not necessarily have the desired result.[73]

 

[63] Chang v. INS, 307 F.3d 1185 (9th Cir. Oct. 11, 2002) (conviction of bank fraud for knowingly passing a $605.30 bad check held not to constitute an aggravated felony, under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i) as a conviction of an offense involving fraud for which the loss to the victim(s) exceeded $10,000, even though losses resulting from the entire scheme described in the PSR exceeded $30,000, since plea agreement specified loss from the count of conviction as $605.30); cf. Ferreira v. Ashcroft, 390 F.3d 1091 (9th Cir. Dec. 1, 2004) (California conviction of welfare fraud, in violation of Welf. & Inst. Code § 10980(c)(2), constitutes an offense involving fraud or deceit with a loss to the victim in excess of $10,000, for purposes of qualifying as an aggravated felony as defined under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i) triggering deportation, where the plea agreement — part of the record of conviction — sets the amount of restitution at $22,305 and where the California courts are required under California Penal Code § 1202.04(f) to set restitution based on the loss to the victim).

[64] Ibid.

[65] United States v. Hicks, 217 F.3d 1038 (9th Cir. 2000) (for purposes of calculating a fraud defendant’s offense level under the Sentencing Guidelines aggravated felony definition).

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

[67] 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).

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

[69] 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).

[70] But see Kharana v. Gonzales, ___ F.3d ___ (9th Cir. May 29, 2007) (noncitizen who pleads guilty to fraud in misappropriating more than $10,000 but later repays the entire loss, so the victims have been made whole, has not "paid down" the "loss to the victims" below the statutory threshold so that her offense no longer qualifies as an aggravated felony fraud offense, under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i)).

[71] St. John v. Ashcroft, 43 Fed.Appx. 281 (10th Cir. July 25, 2002) (federal conviction for use of a false social security number in violation of 42 U.S.C. § 408(a)(7)(B) constitutes an aggravated felony under INA § 101(a)(43)(M)((i), 8 U.S.C. § 1101(a)(43)(M)(i), since it requires as an essential element an “intent to deceive” and since court ordered restitution in the amount of $25,000, defining “restitution” and rejecting argument that the restitution amount was not equivalent to loss to the victim since the statute authorizing the restitution order, 18 U.S.C. § 3583(d), did not require that there be a loss to a victim before restitution could be ordered); accord, United States v. Nichols, 229 F.3d 975, 978 (10th Cir. 2000) (counting violation of 42 U.S.C. § 408(a)(7)(B) as a “crime[] involving fraud and deceit”).

[72] See, e.g., United States v. Doe, 374 F.3d 851 (9th Cir. July 6, 2004) (amount of restitution imposed must reflect the losses of identified victims); United States v. Morgan, 376 F.3d 1002 (9th Cir. July 23, 2004) (district court erred in including interest and finance charges in calculation of total amount of loss for sentencing purposes); United States v. Hickey, 367 F.3d 888 (9th Cir. Apr. 30, 2004) (order of disgorgement of $1.1 million in civil action brought by SEC did not bar government from proceeding criminally against defendant, or from proving losses of more than $1.1 million).

[73] Munroe v. Ashcroft, 353 F.3d 225 (3d Cir. Dec. 16, 2003) (New Jersey theft by deception, under N.J.S.A. 2C: 20-4, held to be aggravated felony fraud conviction under 8 U.S.C. § 1101(a)(43)(M)(i), for deportation purposes where actual loss to victim exceeded $10,000, even though sentencing judge reduced amount of restitution from $11,522 to $9,999, since critical fact is amount of loss, not restitution amount).

Ninth Circuit

SENTENCE " FEDERAL " RESTITUTION AGGRAVATED FELONY " FRAUD OFFENSES " LOSS AMOUNT " RESTITUTION
SENTENCE " FEDERAL " RESTITUTION AGGRAVATED FELONY " FRAUD OFFENSES " LOSS AMOUNT " RESTITUTION United States v. Tsosie, ___ F.3d ___, 2011 WL 1758785 (9th Cir. May 10, 2011) (vacating district courts judgment ordering restitution for expenses incurred by victim's mother in case involving abusive sexual contact in violation of 18 U.S.C. 2244(a)(1), as the award was issued in violation of the procedural and evidentiary requirements of 18 U.S.C. 3664).