Armand Joseph v. U.S. Attorney General

USCA11 Case: 21-11597 Date Filed: 04/13/2022 Page: 1 of 6

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-11597

Non-Argument Calendar

____________________

ARMAND JOSEPH,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

____________________

Petition for Review of a Decision of the

Board of Immigration Appeals

Agency No. A090-597-547

____________________

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2 Opinion of the Court 21-11597

Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:

The Board of Immigration Appeals, affirming the decision of

an immigration judge, ruled that Armand Joseph was removable

from the United States because he committed an “aggravated fel-

ony,” see 8 U.S.C. § 1227(a)(2)(A)(iii), namely, a conspiracy offense

that “involves fraud or deceit in which the loss to the victim or vic-

tims exceeds $10,000,” id. § 1101(a)(43)(M)(i), (U). Joseph petitions

this Court for review. We dismiss the petition.

The records shows that Joseph, a native and citizen of Ja-

maica, entered the United States in the 1970s and became a lawful

permanent resident in 1990. In May 2017, he pled guilty to partici-

pating in a conspiracy to defraud the government by cashing fraud-

ulently obtained income-tax refund checks, in violation of 18

U.S.C. § 371. According to undisputed facts in his presentence in-

vestigation report (“PSR”), Joseph stipulated in a written plea

agreement that, while working as a teller at a check-cashing busi-

ness, he cashed 34 federal income-tax refund checks—in the total

amount of $247,344—for an individual who fraudulently obtained

the checks. He received approximately $100 per check as a kick-

back. As a result of Joseph’s participation, the government sus-

tained a loss of $247,344. The district court sentenced him to serve

24 months in prison and to pay $247,344 in restitution to the Inter-

nal Revenue Service.

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21-11597 Opinion of the Court 3

The Department of Homeland Security subsequently

charged Joseph with removability under § 1227(a)(2)(A)(iii), alleg-

ing that his conviction was for an “aggravated felony.” Based on

the indictment, the criminal judgment and restitution order, and

undisputed facts in the PSR, the IJ determined that Joseph’s convic-

tion qualified as an aggravated felony because it involved fraud or

deceit and the loss to the victim exceeded $10,000. See 8 U.S.C.

§ 1101(a)(43)(M)(i).

Joseph appealed to the BIA, which affirmed the IJ. Accord-

ing to the BIA, the record supported the IJ’s finding that the loss

amount exceeded $10,000. Reviewing the “entire record of convic-

tion,” the BIA noted that Joseph stipulated in his plea agreement

that the 34 checks he cashed were worth approximately $247,344.

It also cited the PSR’s undisputed statement that, “[a]s a result of

Joseph’s participation in the scheme, the United States was de-

frauded of $247,344.21.” Finally, the BIA found in the alternative

that Joseph’s conviction qualified because the contemplated loss of

the conspiracy was well over $10,000, even if the actual loss was

not.

Joseph now petitions this Court for review. He contends

that the restitution order is not sufficient to prove the loss amount

because it “encompasses the losses from criminal activity other

than the conviction offense.” He asserts that the conspiracy count

to which he pled guilty “did not calculate or reference a specific loss

amount to any victim(s),” and so, in his view, the loss amount was

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4 Opinion of the Court 21-11597

not “tied to the specific counts covered by the conviction” as re-

quired.

“[W]e apply an exceedingly deferential standard of review

to the agency’s fact-finding about the amount of loss” for purposes

of determining whether a prior conviction qualifies as an aggra-

vated felony. Garcia-Simisterra v. U.S. Att’y Gen., 984 F.3d 977,

980–81 (11th Cir. 2020). We will uphold the agency’s determina-

tion of the loss amount if it is “supported by reasonable, substantial,

and probative evidence on the record considered as a whole.” Id.

at 981 (quotation marks omitted). If substantial evidence supports

the agency’s conclusion, we must dismiss the petition for review.

Id. at 982.

In determining whether the loss amount for a prior fraud or

deceit conviction exceeded $10,000, the agency may consider “the

specific circumstances surrounding an offender’s commission of a

fraud and deceit crime on a specific occasion.” Nijhawan v. Holder,

557 U.S. 29, 40 (2009) (holding that the categorical approach does

not apply to § 1101(a)(43)(M)(i)). It is not limited to the indictment

or the statutory definition or the “generic” form of the offense. Id.

Nevertheless, the loss amount “must be tied to the specific counts

covered by the convictions,” and cannot be based on uncharged or

acquitted conduct. Id. (quotation marks omitted).

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21-11597 Opinion of the Court 5

In examining the “specific circumstances” of the prior con-

viction, the agency is not limited to Shepard-approved 1 sources and

may rely more broadly on “sentencing-related material.” Nijha-

wan, 557 U.S. at 41–42. In Nijhawan, the Supreme Court held that

evidence of the “defendant’s own stipulation” that the conviction

involved losses exceeding $10,000 and a restitution order showing

that same thing was “clear and convincing” in the absence of con-

flicting evidence. Id. at 42–43; see also Garcia-Simisterra, 984 F.3d

at 981–82 (finding that the agency’s loss amount was supported by

the criminal information and the plea agreement).

Here, substantial evidence supports the agency’s finding that

Joseph was convicted of a fraud offense involving losses exceeding

$10,000. Similar to Nijhawan, the agency here relied on evidence

of Joseph’s own stipulation as part of the plea agreement that the

34 tax refund checks he cashed as part of a conspiracy to defraud

resulted in a loss to the government of $247,344, as well as a resti-

tution order for that amount. See id. And Joseph does not point

to “any conflicting evidence.” Id.

Nor are we persuaded by Joseph’s claim that the restitution

order includes “losses from criminal activity other than the

1“Shepard-approved documents include the ‘charging document, the terms of

a plea agreement, or transcript of [plea] colloquy between judge and defendant

in which the factual basis for the plea was confirmed by the defendant, or to

some comparable judicial record of this information.’” United States v. Dud-

ley, 5 F.4th 1249, 1257 (11th Cir. 2021) (quoting Shepard v. United States, 544

U.S. 13, 16, 26 (2005)).

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6 Opinion of the Court 21-11597

conviction offense,” as was the case in Obasohan v. U.S. Att’y Gen.,

479 F.3d 785, 789–90 (11th Cir. 2007), abrogated on other grounds

by Nijhawan, 557 U.S. at 41–42. In Obasohan, we held that the

restitution order there was insufficient proof of loss for

§ 1101(a)(43)(M)(i) because “[t]he restitution was not based on the

conspiracy charge to which [the defendant] pled guilty, nor on the

overt acts to which [he] admitted by pleading guilty.” 479 F.3d at

789. Rather, it “was based on additional conduct” in the PSR that

was not “charged, proven or admitted.” Id. at 789–91.

But the restitution in this case, in contrast to Obasohan, was

clearly based on conduct admitted by Joseph as part of his guilty

plea to the conspiracy offense. It was based on Joseph’s stipulation

that he cashed checks worth $247,344 for the conspiracy, causing a

loss of that same amount to the government. That evidence clearly

and convincingly established that the loss amount “tied to” the spe-

cific conspiracy conviction exceeded $10,000. See Nijhawan, 557

U.S. at 40–43.

Because “substantial evidence supported the BIA’s conclu-

sion, . . . we lack jurisdiction over [Joseph’s] petition.” Garcia-Si-

misterra, 984 F.3d at 982.

PETITION DISMISSED.