Arguelles-Olivares v. Mukasey

The petitioner seeks review of a removal order, contending that his prior conviction for filing a false federal tax return did not constitute a removable offense. We deny the petition for review.

I

Joel Arguelles-Olivares pleaded guilty to violating 26 U.S.C. § 7206(1) by knowingly filing a false tax return.1 The Department of Homeland Security thereafter instituted removal proceedings, charging that Arguelles-Olivares was removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony within the meaning of 8 U.S.C. § 1101(a)(43)(M). Subsection (M) defines an aggravated felony as “an offense that (i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or (ii) is described in section 7201 of Title 26 (relating to tax evasion) in which the revenue loss to the government exceeds $10,000.”2 The Immigration Judge ordered Arguelles-Olivares removed, and the Board of Immigration Appeals affirmed the removal order.

Arguelles-Olivares contends that his tax offense is not an “aggravated felony” as defined by subsection (M)(i). He first asserts that subsection (M)(i) does not apply to any federal tax offenses because subsection (M)(ii) specifically identifies tax evasion, and only tax evasion, thereby reflecting congressional intent that no other tax offense qualifies as an aggravated felony. He additionally argues that, even if (M)(i) includes knowingly filing a false federal tax return, there is no competent evidence that the amount of loss was $10,000 or more.

II

We are not the first court to consider whether a federal tax offense other than tax evasion may constitute an aggravated *173felony under 8 U.S.C. § 1101(a)(43)(M). A divided panel of the Third Circuit concluded in Lee v. Ashcroft that it may not.3 The Ninth Circuit reached the opposite conclusion in Kawashima v. Gonzales,4 expressly rejecting the majority’s reasoning in Lee. The arguments supporting each opposing view have been cogently considered by the Third Circuit in the majority and dissenting opinions in Lee and by the Ninth Circuit in Kawashima. We agree with then-Judge (now Justice) Alito’s5 and the Ninth Circuit’s construction of subsection (43)(M)(i).

The text of subsection (43)(M)(i) is straightforward and unambiguous. “The term ‘aggravated felony’ means ... an offense that — <i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000____”6 “Willfully” and knowingly signing and filing a false federal tax return unquestionably “involves fraud or deceit,” and courts have concluded that the federal government is a “victim” within the meaning of (43)(M)(i).7 The difficulty in construing (43)(M)(i) is the immediately succeeding subsection: “or (ii) is described in section 7201 of Title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000.”8 The Third Circuit concluded that this more specific reference to tax evasion and the juxtaposition of the two subsections rendered subsection 43(M)(i) less than “plain and unambiguous.”9 That court “turn[ed] to the traditional tools of statutory construction,” concluding that subsection (M)(ii) would be “mere surplusage” if subsection (M)(i) included tax offenses because “the government has not identified, and we are unable to envision” “a case where a conviction for tax evasion would not involve fraud or deceit,” and that “the principle that the specific governs the general also favors the interpretation that subsection (M)(ii) identifies the only removable tax offense, tax evasion, while subsection (M)(i) does not apply to tax offenses.”10 The Third Circuit also reasoned that “for Congress to select tax evasion as the [only] ‘aggravated’ tax felony, justifying removal of an alien who committed it, while sparing lesser tax felons, is thoroughly consistent with the history and structure of criminal tax offenses.”11 In support of this conclusion, Lee cites the Supreme Court’s decision in Spies v. United States,12 characterizing tax evasion as the “ ‘capstone’ of tax law violations,” the “ ‘climax of this variety of sanctions’ ” and “ ‘the serious and inclusive felony.’ ”13 The Third Circuit decided that “Congress’ intent is clear,” and “[t]o the extent that any ambiguity lingers, we note *174that there is a ‘longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien.’ ”14

We are persuaded, however, that Congress did not intend to single out tax evasion under 26 U.S.C. § 7201 for inclusion among aggravated felonies to the exclusion of all other tax felonies. We also conclude that subsection 43(M)(i) is unambiguous. 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.16 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.

We respectfully part company with Lee in this regard, including its reliance on Spies v. United States.17 The Third Circuit reasoned that in Spies the Supreme Court described the felony defined in former 26 U.S.C. § 145(b) as “the ‘capstone’ of tax law violations,”18 and “[t]hus, for Congress to select tax evasion as the ‘aggravated’ tax felony, justifying removal of an alien who committed it, while sparing lesser tax felons, is thoroughly consistent with the history and structure of criminal tax offenses.”19 The Spies decision focused on “the acts necessary to make out the felony [under section 145(b) of the Revenue Act of 1936] and those which may make out the misdemeanor [under section 145(a) ].”20 The two provisions were similarly worded.21 The Supreme Court’s references to tax evasion as the “capstone” and the “climax of this variety of sanctions” must be considered in this context, as distinguishing the elements of the misdemeanor offense from those of the felony offense, not as comparing felony tax evasion with other felony tax offenses. Indeed, 26 U.S.C. § 7206 was not enacted until 1954, eleven years after Spies was decided in 1943.

The Supreme Court recently quoted the “capstone” statement that appears in Spies regarding 26 U.S.C. § 7201,22 but also not*175ed that “26 U.S.C. § 7206(1), criminalizing the willful filing of a tax return believed to be materially false” is “[a] related provision.”23 The Court further observed in Boulware that “it is arguable that ‘the nature and character of the funds received can be critical in determining whether ... § 7206(1) has been violated, [even if] proof of a tax deficiency [required under § 7201] is unnecessary.’’,24 The Court did not resolve the question, and of course, the Court was not construing 8 U.S.C. § 1101(a)(43)(M). But the Court’s discussion does support our conclusion that the “capstone” argument advanced by the Third Circuit does not have the import that our sister court ascribes to it.

Other circuit courts have noted, correctly, that under some circumstances, a conviction for a violation of § 7206 may merge into a conviction under § 7201 as a lesser included offense.25 But the corollary is that merger is not always appropriate. Section 7206 is a separate offense that is “separately punishable” from a violation of § 7201, unless there is also a violation of § 7201 and the § 7206 violation was incidental thereto.

There is no indication in the Tax Code that 26 U.S.C. § 7201, which addresses tax evasion, is the preferred means of prosecuting felony tax offenses. We cannot agree that Congress intended to exclude tax offenses involving fraud and deceit from 8 U.S.C. § 1101(a)(43)(M)(i) when it included a specific reference to 26 U.S.C. § 7201 in (43)(M)(ii).

Accordingly, a conviction under 26 U.S.C. § 7206(1) for filing a false tax return constitutes an aggravated felony for purposes of 8 U.S.C. § 1101(a)(43)(M) if that offense involved a loss of $10,000 or more.

Ill

Arguelles-Olivares contends there is no evidence that his tax offense involved $10,000 or more because the judgment of conviction does not mention the amount of actual loss. He asserts that it was error to rely on the Pre-Sentence Investigation Report (PSR), prepared in the tax offense proceedings, as evidence of the amount of loss in his immigration proceedings. Arguelles-Olivares asserts that the PSR must be excluded under the “categorical approach” of examining prior convictions and *176that the PSR’s admission into evidence and reliance upon it was problematic for a number of other reasons. We first consider the pertinence of the “categorical approach.”

A

The judgment in the tax offense prosecution does not reference any amount of loss, and the plea agreement in that criminal case was not made part of the record in the immigration proceedings. However, the PSR prepared in connection with Arguelles-Olivares’ tax offense conviction states that Arguelles-Olivares’ plea agreement determined the total amount of loss to be $248,335 for the years 1996-2000 and detailed the amounts of loss for each of those years.

This court had occasion to consider whether use of a PSR was proper in determining the amount of loss under 8 U.S.C. § 1101(a)(M)(i) in James v. Gonzales.26 James had pled guilty to one count involving a transaction with a credit union in the amount of only $9,500.27 We held that “[s]ince aiding and abetting bank fraud does not itself define a monetary threshold, we look beyond the statute to the record of conviction.”28 We cited the Third Circuit’s decision in Singh v. Ashcroft29 with approval for the proposition that we are not confined to the formal categorical approach of Taylor v. United States30 when determining if an offense involved “ ‘loss to the victim or victims [in excess of] $10,000.’ ”31 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 *177obtained 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 *178applying 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.

We recognize that there is disagreement among the circuit courts as to how the amount of loss involved in a prior criminal conviction may be ascertained in civil removal proceedings. The Ninth Circuit has held that the amount of loss must be admitted by a defendant or found by the trier of fact in the prior criminal prosecution.45 Similarly, the Second Circuit “per-mites] the BIA to remove only those aliens who have actually or necessarily pleaded [in the underlying criminal proceedings] to the elements of a removable offense,” including the greater-than-$10,000-loss requirement.46 Our court has construed the statute differently, and we believe correct*179ly, in /ames.47

Based on the facts of this case, there is clear and convincing evidence that the PSR accurately reflected the amount of loss. An addendum to the PSR reflects that Arguelles-Olivares had no objections to the PSR. The PSR additionally states that a probation officer interviewed Arguelles-Olivares regarding the report and that Arguelles-Olivares agreed with the chart in the report showing the tax losses by year, including a loss of $75,982 for 1999. 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.

The dissent cites several decisions in support of its conclusion that the BIA cannot consider a PSR in determining the amount of loss. The first decision on which the dissent relies is Larin-Ulloa v. Gonzales from this court.48 But that case had nothing to do with an amount of loss. The issue was whether a prior Kansas conviction was a crime of violence within the meaning of 18 U.S.C. § 16(b), specifically, whether “intentionally causing physical contact with another person with a deadly weapon in a rude, insulting or angry manner clearly involves a substantial risk that physical force against another person may be used.”49

The dissent cites the Second Circuit’s decision in Dulal-Whiteway v. U.S. Department of Homeland Security, but as discussed above, that circuit has chosen to treat the amount of loss essentially as an element of the underlying conviction. This circuit has not.

The Eleventh Circuit held in Obasohan v. U.S. Attorney General,50 also cited by the dissent, that an amount of loss must be charged and proven or admitted by the defendant in the underlying criminal proceedings. Although the breadth of that decision is not entirely clear, that court would apparently permit the BIA to rely on a restitution order if a defendant admitted the amount of loss.51 The First Circuit held in Conteh v. Gonzales, cited by the dissent, that the BIA could rely on a restitution order to determine the amount of loss when “the district court made an explicit finding of the amount of loss as part of its final judgment,”52 even though that finding may have been based in part on facts in the PSR.53

In the final analysis, our circuit’s precedent is clear, and with respect, we disagree with the dissent. The PSR could be considered under the circumstances presented *180here, particularly given that Arguelles-Olivares admitted in the underlying criminal proceedings that the amounts of loss reflected in the PSR were correct.

B

Arguelles-Olivares contends that there must be proof that the amount of loss exceeded $10,000 in a single tax year. Even assuming arguendo that this is a correct proposition of law, the threshold was met.

He asserts that the PSR was inadmissible because removal proceedings are prosecutorial in nature and that use of a PSR is incompatable with the purpose of the report as a sentencing and correctional tool. He additionally asserts that the PSR is confidential and cannot be accessed without leave of court. Arguelles-Olivares made no attempt during the immigration proceedings to seek an injunction or order from the district court to maintain the confidentiality of the PSR. He did not identify any provisions of the PSR that would jeopardize his own privacy or the government’s interest in maintaining the trust of third-party witnesses by keeping the PSR confidential. There was no abuse of discretion in admitting the PSR.

The record contains evidence that supports the BIA’s conclusion that Arguelles-Olivares is an aggravated felon, and we will not vacate that determination.

Sc * Sc

We DENY the petition for review.