# Arguelles-Olivares v. Mukasey

> Court of Appeals for the Fifth Circuit · April 22, 2008 · 526 F.3d 171

URL: https://www.frixlaw.com/law-library/cases/9553373

## Case

- **Full name:** Joel ARGUELLES-OLIVARES, Also Known As, Joel Arguelles, Petitioner, v. Michael B. MUKASEY, United States Attorney General, Respondent
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** April 22, 2008
- **Citations:** 526 F.3d 171; 2008 U.S. App. LEXIS 8721; 2008 WL 1799987
- **Precedential status:** Published
- **Opinion:** Dissent by Dennis
- **Judges:** Garwood, Dennis, Owen
- **Cited by:** 21 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9553373

## Opinion text

DENNIS, Circuit Judge,
dissenting:
I respectfully dissent and would grant the alien’s petition for review. In my opinion, the majority incorrectly decides two important res nova immigration law issues. First, the majority joins the less meritorious side of a circuit split, giving no weight whatever to the INA’s designation of tax evasion as the sole tax offense explicitly named as an “aggravated felony”; the majority does not even attempt to explain away the sharp clash between its alien-hostile statutory construction and the traditional principle of construing uncertain statutes in favor of aliens. Second, and more grievous, the majority refuses to follow our circuit precedents that have consistently applied the Supreme Court’s Taylor-Shepard “modified categorical approach” in removal cases; instead, it approves the BIA’s looking outside the record of the alien’s conviction to find an aggravated felony based upon a paper trial of underlying facts contained in his PSR. In so doing, the majority creates a circuit split from the four circuits unanimously holding such use of PSRs is improper under the Taylor-Shepard modified categorical approach; and it disregards the numerous decisions of our own prior panels consistently applying the Taylor-Shepard methodology in sentencing cases. The majority’s second decision is particularly unfortunate because it exposes aliens in this Circuit to the potential of unfair practices, inequality of justice, and deportations based on constructive paper trials without juries rather than on records of judicial convictions.
1.
A.
Joel Arguelles-Olivares was born March 13, 1957, in Mexico. He immigrated to the United States more than thirty years ago and has been a Permanent Resident Alien since April 6, 1977. 1 Since then, he has lived in Houston, Texas; Sugarland, Tex *181 as; New York City; Round Rock, Texas; Austin, Texas; Hutto, Texas; and Pflugerville, Texas, where he currently resides. After moving to the United States, Arguelles lived with Laverne Clancy for thirteen years. Together they have one daughter, who is currently a student at Baylor University in Waco, Texas. In 1993, Arguelles married Pearl Lavenia Whidden Pfeifer. Together they have two children, ages five and two, who live with them in their three-bedroom, one-story house. Mrs. Arguelles has two children from a previous marriage, one of whom lives with them.
Since 1978, Arguelles has been a self-employed masonry contractor. The record indicates that Arguelles has been financially successful in that capacity and that he regularly employs a number of individuals. Although the details of the size of his work force and his employees’ wages or salaries are not disclosed in the record, the PSR states that in the 2001 tax year he reported a taxable income of $459,390 upon which he paid the correct amount of $175,012 in income taxes.
B.
On April 7, 2003, Arguelles was charged by criminal information in the United States District Court for the Western District of Texas with one count of filing a false income tax return for the 1999 tax year in violation of 26 U.S.C. § 7206 (1). On May 1, 2003, Arguelles pleaded guilty in accordance with a written Plea Agreement to the charge against him. He was then sentenced on July 8, 2003, to a term of twenty-one months of imprisonment, to be followed by a supervised release term of one year, but he was not fined or ordered to pay any restitution.
On account of this conviction, the Department of Homeland Security (“DHS”) initiated removal proceedings against Arguelles pursuant to 8 U.S.C. § 1227 (a)(2)(A)(iii) for having been convicted of an aggravated felony as defined by 8 U.S.C. § 1101 (a)(43)(M). During the proceedings, Arguelles admitted to all of the allegations contained in the DHS’s Notice to Appear except that he specifically denied that his conviction resulted in a loss to the victim, in this,case the Government, of more than $10,000. The DHS did not introduce the written Plea Agreement into the record of this removal proceeding in order to prove that the amount of loss exceeded $10,000. 2 The DHS did file the charging document, a criminal information, and the judgment of conviction into the record, but neither of these instruments discloses how much Arguelles underpaid his 1999 federal income taxes. The criminal information simply states that he underpaid his taxes by a substantial amount. The judgment of conviction merely adjudges him guilty of violating 26 U.S.C. 7205(1) 3 by Making a Subscribing a (sic) False Return on April 4, 2000. The only document in the record that provides any indication of how much Arguelles underpaid his 1999 federal income taxes is the PSR. 4 Arguelles objected to the inclusion *182 of the PSR into the record of his immigration proceedings, but the IJ admitted it and both the IJ and the BIA relied on statements in the PSR to conclude that Arguelles’s conviction had resulted in a loss amount that exceeded $10,000. Both the IJ and the BIA also rejected Arguelles’s argument that a conviction for filing a false tax return under 26 U.S.C. § 7206 (1) cannot qualify as an aggravated felony under 8 U.S.C. § 1101 (a)(43)(M)(i).
Accordingly, the IJ deemed Arguelles removable for being convicted of an aggravated felony and ordered Arguelles removed to Mexico. The BIA affirmed the removal order. As a consequence of being removed for conviction of an aggravated felony, Arguelles will be permanently barred from re-entry to the United States. See 8 U.S.C. § 1182 (a)(9)(A)(i)-(ii).
2.
In his petition for review, Arguelles re-urges his argument that no conviction under 26 U.S.C. § 7206 (1) for filing a false tax return can qualify as an aggravated felony under 8 U.S.C. § 1101 (a)(43)(M). As the majority points out, this issue has split the only two Circuit courts that have addressed it thus far. Compare Kawashima v. Gonzales, 503 F.3d 997 (9th Cir.2007) (holding that a violation of § 7206(1) in which the tax loss to the government exceeds $10,000 constitutes an aggravated felony under § 1101(a)(43)(M)(i)), with Ki Se Lee v. Ashcroft, 368 F.3d 218 (3d Cir.2004) (reaching the opposite conclusion), hut see id. at 225 (Alito, J., dissenting). Although, in my view, we need not step into this crossfire to properly resolve the matter before us, I nevertheless note my belief that the Third Circuit majority’s reasoning appears to be well-grounded in familiar statutory interpretation principles. As explained in great detail by the Third Circuit majority in Ki Se Lee, the juxtaposition of subsections (M)(i) and (M)(ii)— one a general provision encompassing offenses involving “fraud or deceit,” and one a specific provision focused solely on federal tax evasion, both enacted simultaneously in 1996 — suggests, at the very least, an ambiguity as to whether other tax offenses, such as violations of § 7206(1), are covered under the more general (M)(i). See id. at 222-25. The Supreme Court and this Circuit have consistently recognized “the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien.” INS v. Cardoza-Fonseca, 480 U.S. 421, 449 , 107 S.Ct. 1207 , 94 L.Ed.2d 434 (1987); see also INS v. St. Cyr, 533 U.S. 289, 320 , 121 S.Ct. 2271 , 150 L.Ed.2d 347 (2001) (same); INS v. Errico, 385 U.S. 214, 225 , 87 S.Ct. 473 , 17 L.Ed.2d 318 (1966) (“ ‘[Sjince the stakes are considerable for the individual, we will not assume that Congress meant to trench on his freedom beyond that which is required by the narrowest of several possible meanings of the words used.’ ”) (quoting Fong Haw Tan v. Phelan, 333 U.S. 6, 10 , 68 S.Ct. 374 , 92 L.Ed. 433 (1948)); Martinez v. Mukasey, 519 F.3d 532, 544 (5th Cir.2008) (quoting Cardozar-Fonseca and explaining that “[t]his canon of construction, comparable to the rule of lenity in criminal cases, is based on the drastic nature of removal”); Bandar-Ortiz v. Gonzales, 445 *183 F.3d 387, 396 (5th Cir.2006) (Smith, J., dissenting) (“Though the majority finds this weight of authority insufficient, it might at least, out of comity, acknowledge the merit of the competing position by applying the ‘longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien.’ ”). While the majority here may not agree with the Third Circuit’s view of (M)(i), in light of the weighty discussion of statutory history, construction, and interpretation presented in both Ki Se Lee and Kawashima, I believe, at minimum, this issue requires more encompassing analysis than that offered in the majority opinion before this Circuit aligns itself with either the Third or Ninth Circuit’s position and creates a Circuit-majority (for now) on this aggravated felony issue, which has such serious consequences for aliens and their families. 5
3.
Title 8, Section 1227(a)(2)(A)(iii) of the United States Code renders removable “[a]ny alien who is convicted of an aggravated felony at any time after admission.” Title 8, Section 1101(a)(43)(M)(i) of the United States Code defines “aggravated felony” as, inter alia, an offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” Arguelles was convicted of deceit or fraud in connection with filing a false tax return in violation of 26 U.S.C. § 7206 (1), which provides:
Any person who ... [wjillfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter ... shall be guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000 ($500,000 in the case of a corporation), or imprisoned not more than 3 years, or both, together with the costs of prosecution.
Assuming arguendo the applicability of 8 U.S.C. § 1101 (a)(43)(M)(i) to violations of 26 U.S.C. § 7206 (1), Arguelles does not contest that his conviction under this stat *184 ute “involves fraud or deceit” within the meaning of the removability provision. He contends, however, that his record of conviction fails to establish that the loss to the victim of his crime exceeded $10,000. In particular, he argues that it was error for the IJ to consult the PSR, which indicated that the loss to his victim, the Government, was $75,982, because it should not have been considered part of his record of conviction. I agree that relying upon these materials to prove that Arguelles was convicted of a fraud involving a loss greater than $10,000 violated the modified categorical approach to determining aliens’ removability based on criminal convictions.
My conclusion necessarily follows from our Circuit’s precedent in this area. We have stated that “[t]o determine whether an alien’s guilty plea conviction constitutes an aggravated felony for removal purposes, we apply a ‘categorical approach,’ under which we refer only to the statutory definition of the crime for which the alien was convicted (rather than attempt to reconstruct the concrete facts of the actual criminal offense) and ask whether that legislatively-defined offense necessarily fits within the INA definition of an aggravated felony.” Larin-Ulloa v. Gonzales, 462 F.3d 456, 463 (5th Cir.2006); see also Fortes v. Mukasey, 256 Fed.Appx. 715, 717-18 (5th Cir.2007) (unpublished); Omari v. Gonzales, 419 F.3d 303, 307 (5th Cir.2005) (citing Lopez-Elias v. Reno, 209 F.3d 788, 791 (5th Cir.2000)); Nguyen v. Ashcroft, 366 F.3d 386, 388 (5th Cir.2004). We do not consider the underlying facts that resulted in the alien’s conviction. Fortes, 256 Fed.Appx. at 717 -18 (citing Larin-Ulloa, 462 F.3d at 463 ).
We adopted this methodology in the immigration context because of its analogous roots in Taylor v. United States, 495 U.S. 575 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13 , 125 S.Ct. 1254 , 161 L.Ed.2d 205 (2005), two sentencing cases in which the Supreme Court described the basic structure and underlying rationales of the modified categorical approach. See Larin-Ulloa, 462 F.3d at 463-64 ; Dulal-Whiteway v. Dep’t of Homeland Sec., 501 F.3d 116, 124 (2d Cir.2007). Among the considerations that led the Taylor court to conclude that a categorical approach to prior convictions was necessary were concerns about the practical difficulties and fairness problems that would arise if courts were permitted to consider the facts behind pri- or convictions. 6 The Taylor court noted that a fact-based approach to prior convictions would potentially require federal courts to relitigate a defendant’s prior conviction in any case where the government alleged that the defendant’s actual conduct fit the definition of a predicate offense. Taylor, 495 U.S. at 601 , 110 S.Ct. 2143 ; see also Tokatly v. Ashcroft, 371 F.3d 613, 621 (9th Cir.2004) (noting “fundamental principle” that “in determining whether a prior conviction constitutes a predicate offense, we must avoid ‘the enormous problems of re-litigating past convictions, especially in cases where the defendant pleads guilty and there is no record of the underlying facts’ ”) (quoting United States v. Castillo-Rivera, 244 F.3d 1020, 1022 (9th Cir.2001)). The Taylor court also recog *185 nized the unfairness that could result if a factual approach was applied to prior guilty plea convictions:
[I]n cases where the defendant pleaded guilty, there is often no record of the underlying facts. Even if the Government were able to prove those facts, if a guilty plea to a lesser, nonburglary offense was the result of a plea bargain, it would seem unfair to impose a sentence enhancement as if the defendant had pleaded guilty to burglary.
Taylor, 495 U.S. at 601-02 , 110 S.Ct. 2143 .
However, as we explained in Larin-Ulloa , the categorical approach is not absolute. 462 F.3d at 464 . “If the statute of conviction defines multiple offenses, at least one of which does not describe an aggravated felony, we apply a modified categorical approach, under which we may also examine certain additional documents (if contained in the record framing the guilty plea conviction) to determine whether the conviction was ‘necessarily’ for a particular crime defined by the statute that meets the aggravated felony criterion.” Id. (citing Shepard v. United States, 544 U.S. at 13, 20-21, 26 , 125 S.Ct. 1254 ; Omari, 419 F.3d at 308 ); see also Dickson v. Ashcroft, 346 F.3d 44, 48-49 (2d Cir.2003) (“In reviewing a conviction under a divisible statute, the categorical approach permits reference to the record of conviction for the limited purpose of determining whether the alien’s conviction was under the branch of the statute that permits removal.”). In the case of guilty plea convictions under such a divisible statute, we may consider, in addition to the language of the statute, the “ ‘charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.’ ” Omari, 419 F.3d at 308 (quoting Shepard, 544 U.S. at 16 , 125 S.Ct. 1254 ). The use of these documents is permitted because they are considered sufficiently conclusive and reliable to establish the facts to which the alien actually pleaded guilty. See Shepard, 544 U.S. at 23 , 125 S.Ct. 1254 (stating that evidence of facts should be “confined to records of the convicting court approaching the certainty of the record of conviction”). “Documents not of that kind, including police reports and complaint applications, may not be considered.” Omari, 419 F.3d at 308 .
If the documents that we may consider under the modified categorical approach are insufficient to establish that the petitioner was necessarily convicted of an aggravated felony, we must find that “the government has not met its burden of proving that the conduct for which the petitioner was convicted constitutes a predicate offense, and the conviction may not be used as a basis for removal.” Tokatly, 371 F.3d at 620 ; see Omari, 419 F.3d at 309 (same).
The analogous statutory structures in the sentencing and deportation contexts, as well as the reasoning of Taylor and Shepard , justify the use of the categorical approach to determine removability vel non. See Dulal-Whiteway, 501 F.3d at 125 (citing Ming Lam Sui v. INS, 250 F.3d 105, 116-17 (2d Cir.2001)). “[L]ike the burglary sentencing enhancement, the Immigration and Nationality Act (TNA’), 8 U.S.C § 1227(a)(2)(A)(iii), rendered removable ‘an alien who has been “convicted” of an aggravated felony, not one who has “committed” an aggravated felony.’ ” Id. (citing Sui, 250 F.3d at 117 ). Moreover, “nothing in the legislative history suggested a factfinding role for the BIA in ascertaining whether an alien had committed an aggravated felony, just as, in Taylor , nothing suggested such a role for the sentencing court in evaluating the factual basis of a prior burglary conviction.” Id. at 126. Further, the practical evidentiary difficul *186 ties and potential unfairness associated with looking behind the offense of conviction are “no less daunting” in the immigration than in the sentencing context. Id. Finally, given the exception in Taylor , when a statute of conviction criminalizes both conduct that would constitute a removable offense and conduct that would not, IJs might appropriately consult an indictment or jury instructions to determine the basis of an alien’s conviction, but IJs cannot look behind the record of conviction to reach their own determination as to whether the underlying facts constitute a conviction for an aggravated felony. See id.; Sui, 250 F.3d at 117 -18 (quoting Lewis v. INS, 194 F.3d 539, 543 (4th Cir.1999)).
Accordingly, like the Second Circuit and others, this Court has applied the modified categorical approach as a two-step inquiry: first, we determine if the statute is “divisible,” such that some categories of proscribed conduct render an alien removable and some do not; second, we consult the record of conviction to ascertain the category of conduct of which the alien was convicted. Larin-Ulloa, 462 F.3d at 467-68 ; Omari, 419 F.3d at 308 .
In the present case, 26 U.S.C. § 7206 (1), the statute criminalizing fraud or deceit in connection with filing a false tax return, is a divisible statute. The provision encompasses deceit or fraud by which the perpetrator files a tax return that he does not believe to be true and correct; however, under 8 U.S.C. § 1101 (a)(43)(M)(i), such fraud is only a removable offense when the loss to the victim exceeds $10,000. Thus, the statute proscribes some conduct that is not removable — fraud causing a loss between $0 and $10,000 — and some conduct that is removable' — deceit or fraud causing a loss greater than $10,000 — requiring that we consult the record of conviction to determine which of the two types of conduct actually underlay Arguelles’s conviction.
Under the Taylor-Shepard modified categorical approach, which our removal circuit precedents have heretofore followed, we have concluded that the BIA’s consultation of the PSR as proof of the specific facts underlying the petitioner’s prior conviction was improper. See Larin-Ulloa, 462 F.3d at 468 ; cf. Omari, 419 F.3d at 308 (PSR not considered part of the record of conviction). In Larin-Ulloa , we held that a “sentencing factor notation is not the type of documentary evidence to which this court or the BIA may refer, under the modified categorical approach as prescribed by Shepard, to determine the nature of an alien’s guilty plea conviction.” 462 F.3d at 468 . We further concluded that “[ujnlike the charging document, the guilty plea, or the factual basis for the plea confirmed by the defendant, sentencing reasons and factors do not simply define the charge and the defendant’s guilty plea, but, instead, frequently refer to facts neither alleged nor admitted in court.” Id. at 468-69 . Other than for its possible use to prove the existence of a conviction, see 8 U.S.C. § 1229a(c)(3)(B)(vi), 7 such a report *187 simply is not a part of the formal record of conviction. Id. at 468. This conclusion is further supported by our sentencing cases, in which we have consistently said that a district court may not rely on the PSR’s characterization of the offense for enhancement purposes. See United States v. Bonilla-Mungia, 422 F.3d 316, 320-21 (5th Cir.), cert. denied, 546 U.S. 1070 , 126 S.Ct. 819 , 163 L.Ed.2d 644 (2005) (holding that Shepard does not permit court to consider factual narrative in probation officer’s PSR); United States v. Garza-Lopez, 410 F.3d 268, 273-74 (5th Cir.), cert. denied, 546 U.S. 919 , 126 S.Ct. 298 , 163 L.Ed.2d 260 (2005) (same); cf. Shepard, 544 U.S. at 20-23 , 125 S.Ct. 1254 (precluding the use of a police report to prove the underlying facts of the putative predicate offense). Moreover, that Arguelles may not have objected to the PSR’s factual findings 8 and the district court adopted them for sentencing purposes are irrelevant to determining whether Arguelles’s conviction was for removable, as opposed to non-removable, conduct because the PSR “typically describes conduct that demonstrates the commission of an offense even if the alien was never convicted for that activity” and may contain inaccurate, unproven, and inadmissible facts. 9 Dickson, 346 F.3d at 54 (emphasis in original).
Accordingly, the government’s argument that a PSR is properly considered among the record of conviction materials, such that the IJ could rely upon the loss amount it described, is foreclosed by Larin-Ulloa. Cf. Omari, 419 F.3d at 308 (PSR not considered part of the record of conviction). The IJ therefore improperly relied on statements set forth in Arguelles’s PSR to establish the loss amount for the 1999 tax year. Accord Dulal-Whiteway, 501 F.3d at 129 (“The government’s argument that a PSR is properly considered among [the modified categorical approach’s permissible] materials, such that the IJ could rely upon the loss amount it described, is foreclosed by Dickson [v. Ashcroft, 346 F.3d 44, 52-55 (2d Cir.2003)], where we rejected a virtually identical claim.”); Obasohan v. Attorney Gen., 479 F.3d 785, 789-91 (11th Cir.2007) (holding that an IJ was not entitled to rely on loss amounts that were alleged only in a PSR); Conteh v. Gonzales, 461 F.3d 45, 58 (1st Cir.2006) (“We reject the government’s argument: the BIA’s consultation of the PSI Report as proof of the specific facts underlying the petitioner’s prior con *188 viction was improper. Other than for its possible use to prove the existence of a conviction, such a report simply is not a part of the formal record of conviction.”) (emphasis in original) (citations omitted); Hernandez-Martinez v. Ashcroft, 343 F.3d 1075, 1076 (9th Cir.2003) (holding that a PSR is “insufficient evidence” to show that an alien’s conviction constitutes an aggravated felony) (citing United States v. Corona-Sanchez, 291 F.3d 1201, 1212 (9th Cir.2002) (en banc)).
Finally, the majority’s holding was not, as the majority states, compelled by James v. Gonzales, 464 F.3d 505 (5th Cir.2006). James , in my opinion, does not represent a clear holding on anything in particular, but should be restricted as precedent to its facts and reconsidered en banc. There, the panel affirmed the BIA’s determination that the loss to James’s victims exceeded $10,000 for purposes of satisfying § 1101(a)(43)(M)(i)’s monetary threshold, but its conclusion was based on a mixture of factors, including some not present in this case, such as an indictment that charged a scheme of aiding and abetting, with three counts totaling $36,450, and a restitution order in an amount that exceeded $10,000. Nowhere does James hold that it is appropriate to deviate from the modified categorical approach to determine whether the amount of loss under § 1101 (a)(43)(M)(i) exceeded $10,000, and it certainly does not state that statements contained in a PSR, without more, are sufficient under the modified categorical approach to reach such a determination as to the amount of loss. Furthermore, James does not even address any of the authorities or principles discussed in this dissent. It is well-established that “we are not bound to follow our dicta in a prior case in which the point now at issue was not fully debated.” Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 363 , 126 S.Ct. 990 , 163 L.Ed.2d 945 (2006) (citing Cohens v. Virginia, 6 Wheat. 264 , 19 U.S. 264, 399-400 , 5 L.Ed. 257 (1821)). Rather, intelligent discussions of the relevant Supreme Court cases and principles, plus the holdings in Larin-Ulloa, Omari, and our sentencing cases, are more persuasive to me because those sources deal directly with what I have discussed in this dissent.
In sum, as a result of the Government’s failure (purposeful or otherwise) to place the Plea Agreement into the immigration record, we are left with an insufficient record of conviction by which to conclude that Arguelles was necessarily convicted of an aggravated felony and is now subject to removal. I would thus grant Arguelles’s petition for review and vacate the BIA’s order of removal. However, because the use of PSRs in the 8 U.S.C. § 1101 (a)(43)(M)(i) context was heretofore a res nova issue in our Circuit, I would also remand for the purpose of allowing the IJ to determine whether documents that are properly considered part of the record of conviction, including those with which the Government may now wish to supplement the record, establish that Arguelles was convicted of a removable offense.
4.
For these reasons, I respectfully dissent.
. Arguelles has two sisters and two brothers, all of whom are naturalized citizens living in Texas. His mother, a United States citizen, lives in Mission, Texas.
.The DHS does not explain why it failed to introduce this crucial document into evidence. If the written Plea Agreement discloses clearly that Arguelles underpaid his 1999 taxes by more than $10,000, the DHS’s failure to file it has caused this court to expend time and effort unnecessarily on the appeal, the oral argument and the opinion writing on this issue. If the Plea Agreement does not contain clear evidence to this effect, then a serious question is raised as to whether the DHS has dealt fairly with Arguelles and honorably with this court.
. This is apparently a typographical error. Section 7206(1) was evidently intended.
. The PSR contains the following statements concerning the alleged loss amount: "On May 1, 2003, the defendant pled guilty in accor *182 dance with a written Plea Agreement, wherein the Government and the defendant agree that the tax loss for sentencing purposes will include the loss from tax years 1996 through 2000 for a total tax loss of $248,335.”; “The IRS determined that the defendant owes $248,335 in unpaid taxes.”; and "Restitution in the amount of $248,335 is outstanding. ...” The PSR also contains a table purporting to show the additional amount of tax that Arguelles-Olivares owed for tax years 1996-2000, which totaled $248,335, including $75,982 for tax year 1999.
. Along this line, I find puzzling the majority’s attempt, unsupported by any authority whatever, to cabin the language used by Justice Jackson in Spies v. United States, 317 U.S. 492, 497 , 63 S.Ct. 364 , 87 L.Ed. 418 (1943), and discussed by the majority in Ki Se Lee, 368 F.3d at 224 , as relevant only in the context of violations of the Revenue Act of 1936. Spies has not been interpreted so narrowly. See Bouhvare v. United States, — U.S. —, 128 S.Ct. 1168, 1173 , 170 L.Ed.2d 34 (2008) (" '[T]he capstone of [the] system of sanctions ... calculated to induce ... fulfillment of every duty under the income tax law,' Spies v. United States, 317 U.S. 492, 497 , 63 S.Ct. 364 , 87 L.Ed. 418 (1943), is 26 U.S.C. § 7201 , making it a felony willfully to attemp[t] in any manner to evade or defeat any tax imposed by' the Code.”); United States v. Dale, 991 F.2d 819, 858 (D.C.Cir.1993) (stating that "[t]he Internal Revenue Service sets out a comprehensive scheme prohibiting and punishing tax fraud; section 7201, the 'evasion' provision has been called the 'capstone' of this scheme” and holding that convictions under section 7206 may "merge, as lesser included offenses, into the 'capstone' section 7201 tax evasion convictions”); United States v. Helmsley, 941 F.2d 71, 99 (2d Cir.1991) (calling section 7201 the " 'capstone' of the comprehensive statutory scheme prohibiting and punishing federal tax fraud” and holding that a conviction under 7206(1) for filing false returns may merge into a conviction under section 7201 “for the inclusive fraud of tax evasion”). Also, the conceptual difference between evasion and false filing is significant. The former requires knowing intentional cause of a loss to the Government, whereas the latter requires only knowing intent to file a false return. See, e.g., United States v. Taylor, 574 F.2d 232, 234 (5th Cir.1978) ("Unlike section[] 7201 ..., section 7206(1) requires the prosecution to prove neither intent to evade payment of taxes nor the existence of any taxable income.”).
. The Taylor court also emphasized that the language of 18 U.S.C. § 924 (e) supported a categorical approach because its sentence enhancement provisions are triggered by prior convictions, and not by the fact that the person has previously committed an offense. See Taylor, 495 U.S. at 601 , 110 S.Ct. 2143 . This rationale applies equally to the INA's provision concerning aggravated felonies. See 8 U.S.C. § 1227 (a)(2)(A)(iii) (“Any alien who is convicted of an aggravated felony at any time after admission is deportable.”); Larin-Ulloa, 462 F.3d at 464 n. 8.
. Section 1229a(c)(3)(B) provides:
(B) Proof of convictions. In any proceeding under this chapter, any of the following documents or records (or a certified copy of such an official document or record) shall constitute proof of a criminal conviction:
(i) An official record of judgment and conviction.
(ii) An official record of plea, verdict, and sentence.
(iii) A docket entry from court records that indicates the existence of the conviction.
(iv) Official minutes of a court proceeding or a transcript of a court hearing in which the court takes notice of the existence of the conviction.
(v) An abstract of a record of conviction prepared by the court in which the conviction was entered, or by a State official *187 associated with the State's repository of criminal justice records, that indicates the charge or section of law violated, the disposition of the case, the existence and date of conviction, and the sentence.
(vi) Any document or record prepared by, or under the direction of, the court in which the conviction was entered that indicates the existence of a conviction.
(vii) Any document or record attesting to the conviction that is maintained by an official of a State or Federal penal institution, which is the basis for that institution's authority to assume custody of the individual named in the record.
. The majority’s characterization of Arguelles as having agreed to certain facts relating to the loss amount for the 1999 tax year is supported only by self-serving references to the probation officer's statements in the PSR and its addendum. The majority does not— because it cannot — point to any statement in the record of conviction by which Arguelles admitted to or failed to object to the factual statements contained in the PSR, as the Government did not include a transcript of the plea colloquy or the sentencing hearing in the immigration record, in addition to not including the Factual Basis and Plea Agreement.
. Here, the PSR’s “proof” of Arguelles's 1999 tax year liability amounts to nothing more than an unsourced and unverified chart that is not accompanied by IRS documents or raw data that provide any indication as to how these numbers were calculated or even who specifically performed the calculations.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9553373. Public record. Not legal advice.