(C)  Restitution.  The Third Circuit held that the criminal court’s alteration of a valid and accurate restitution order, done solely to avoid adverse immigration consequences, was ineffective to do so.[96]  The court found the reduction in the restitution amount to be “irrelevant” for two reasons.  First, the court distinguished between “restitution” and “loss.”  Second, based on a Matter of Pickering-style argument, the court noted that, “[I]t is apparent from the motion and is not disputed here that the motion was not based on a redetermination of the amount of loss caused by the crimes but was intended to alter the effect of the conviction for immigration purposes.”[97]

[96] Munroe v. Ashcroft, 353 F.3d 225 (3d Cir. Dec. 16, 2003) (New Jersey theft by deception, 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).

[97] Munroe v. Ashcroft, 353 F. 3d 225 (3d Cir. Dec. 16, 2003), referring to Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003).

Eleventh Circuit

SENTENCE - SENTENCE IMPOSED
Hernandez v. U.S. Atty Gen., __ F.3d __, 2008 WL 160265 (11th Cir. Jan. 18, 2008) (twelve month suspended sentence, and one year probation, is a sentence imposed of one year, even if probation is later revoked and the defendant required to serve 22 days in jail).