835 F.3d 793
8th Cir.2016Background
- Sokpa-Anku, a Ghanaian lawful permanent resident, was convicted in Minnesota of three counts of medical assistance (Medicaid) fraud under Minn. Stat. § 609.466; one of four original counts was dismissed before trial.
- The criminal complaint alleged overpayments totaling $23,729.67 across four charged time periods; the jury convicted on three counts with DHS payment amounts of $9,860; $6,271; and $4,983 respectively.
- The state court imposed concurrent sentences and ordered $20,791 in restitution on each convicted count.
- DHS commenced removal proceedings, asserting Sokpa-Anku’s conviction constituted an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(M)(i) because the fraud involved victim loss exceeding $10,000.
- Sokpa-Anku argued the BIA erred by aggregating losses from multiple counts; the IJ and BIA treated the counts as interrelated and aggregated losses to exceed $10,000.
- The Eighth Circuit reviewed whether multiple fraud counts in one conviction may be aggregated for the § 1101(a)(43)(M)(i) loss threshold and denied the petition for review.
Issues
| Issue | Sokpa-Anku's Argument | Government/BIA Argument | Held |
|---|---|---|---|
| Whether losses from multiple fraud counts in a single conviction may be aggregated to meet the $10,000 aggravated-felony threshold | Each convicting count is a distinct "offense;" losses must be calculated per count, not aggregated | Where counts arise from the same scheme/continuous conduct against the same victim, losses can be aggregated to determine whether the conviction involved >$10,000 loss | Aggregation permitted here: the counts were interrelated (same victim, similar conduct, continuous time frame, restitution order), so the total loss supports aggravated-felony classification |
Key Cases Cited
- Nijhawan v. Holder, 557 U.S. 29 (U.S. 2010) (adopts circumstance-specific approach; loss may be proved by facts underlying conviction)
- Tian v. Holder, 576 F.3d 890 (8th Cir. 2009) (jurisdiction to review legal issue)
- James v. Gonzales, 464 F.3d 505 (5th Cir. 2006) (loss must be tied to counts covered by the conviction)
- Knutsen v. Gonzales, 429 F.3d 733 (7th Cir. 2005) (similar holding on tying loss to conviction)
- Khalayleh v. INS, 287 F.3d 978 (10th Cir. 2002) (counts and conduct limitations on loss calculation)
- Munroe v. Ashcroft, 353 F.3d 225 (3d Cir. 2003) (restitution order as evidence of victim loss)
- Eversley-MacClaren v. Holder, [citation="578 F. App'x 664"] (9th Cir. 2014) (aggregation of related fraud counts where information linked counts)