Criminal Defense of Immigrants

(F)  Repayment of Restitution.  Several federal courts have ruled that if a defendant makes restitution of all or part of a loss prior to sentencing (or the victims recover compensatory damages in civil court[809]), the “actual loss” would be reduced,[810] but the “intended loss” would not be affected absent proof the repayment was part of the original intention.[811]  This may be especially true in light of Matter of Onyido.[812]  See § 19.74(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,[813] 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.

[809] United States v. Bright, 353 F.3d 1114, 1122 (9th Cir. 2004) (where victims covered by a restitution order later recover “compensatory damages” in a civil proceeding for the same loss, the restitution order may be accordingly reduced).  See also 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).

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

[811] 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).

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

[813] See, e.g., INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i) (“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).