Bhupinder Kaur Kharana v. Alberto R. Gonzales, Attorney General

fense for sentence imposed ex-

ceeded 13 months.” The district court Bhupinder Kaur KHARANA, relied on an abstract of judgment issued Petitioner, by the California court of conviction to v. determine length prior Defendant’s Alberto R. GONZALES, Attorney sentence. General, Respondent. Defendant challenges this use of the ab No. 04-71335. stract of judgment, asserting that our deci sion in United States v. Navidad-Marcos, United States Court of Appeals, 367 F.3d 903 Cir.2004), prohibits dis Ninth Circuit. trict courts from relying on abstracts of Argued judgment. Submitted Feb. That broad proposition is in correct. In Navidadr-Marcos, we held May 29, Filed that a district court may not rely on an abstract of judgment to determine the na

ture prior of a conviction for purposes of

analysis Taylor

495 U.S. 110 S.Ct. 109 L.Ed.2d (1990). We held that the documents

contain insufficient information for that

purpose. We did hold, as Defendant

contends, that abstracts of judgment are

categorically Indeed, unreliable. recently, permitted reliance on an abstract of

judgment, in combination with the charg

ing document, for the purpose of determin

ing whether a defendant had a qualifying 2L1.2(b)(l)(A). U.S.S.G. United States Valle-Montalbo,

1197, 1201-02 (9th Cir.2007).

Here, as in Valle-Montalbo, the district

court relied on the abstract judgment

determine a discrete fact regarding Defen-

dant’s prior conviction, namely, length

of sentence imposed. People Mitchell,

Cal.4th 109 Cal.Rptr.2d 303, 26 P.3d (2001). 1042-43 un- document

equivocally contained the information

needed. This was a permissible use

abstract of judgment. Therefore, the sen-

tence is not erroneous for the reason that argues.

Defendant

AFFIRMED. WALLACE, CLIFFORD J.

Before: NELSON, MARGARET and M. D.W. McKEOWN, Judges. Circuit NELSON; Judge D.W. by

Opinion Judge WALLACE. by Concurrence Judge. NELSON, Circuit Senior D.W. Im- meaning concerns case This (“INA”) Act Nationality and migration U.S.C. 101(a)(43)(M)(i), defines 1101(a)(43)(M)(i),1 which “an include felony” to “aggravated term fraud deceit involves offense or victims victim wheth- decide must $10,000.” We fraud- pleads guilty who a defendant er more appropriating ulently whole her victims makes subsequently the victims” “loss to down” “paid so that statutory threshold below aggravat- anas qualifies longer no and negative answer felony. We for review. petition deny the Background I. Bhupinder 2001, Petitioner August

In “Kharana”), a (“Petitioner” or Kharana United resident permanent lawful court in a state charged money by obtaining counts four & Minter Ahmad, Law Offices Saad Penal of California in violation pretenses petitioner. Fremont, CA, Ahmad, alleged felony complaint § 532. B. Earle and (argued) Minick C. William and fraudulent Petitioner, “false Immigration (briefed), Office Wilson de- pretense[s], representation[s] Division, Civil Litigation, $23,000, victims four fraud[ed]” respondent. Justice, Department Peti- $26,250, respectively. $17,000, and all four contendere nolo pled tioner thereafter, Peti- point At some counts. money.2 stolen repaid the tioner record administrative initiative. her own unless to the INA Statutory references is not in What points. both on unclear indicated. otherwise that, plea, Kharana entering her dispute is of over defrauding admitted re- dispute whether parties 2. The Further, question that there sentencing after money turned only after her returned Petitioner she made court California by the enforcement law was detected conduct on order or a court pursuant to “restitution” the Department of Homeland amount of loss to which the defendant pled (“DHS”) Security charged guilty. Kharana with The IJ noted that where the removability under INA 237(a)(2)(A.)(iii), amount of loss is not clear from plea 1227(a)(2)(A)(iii). U.S.C. agreement Specifically, or charging documents, DHS alleged Kharana had been convicted, of court-imposed restitution may after admission to the be a useful indicator an of loss. In Kharana’s aggravated case, felony however, within the meaning amount of loss was (a)(43)(M) § (i). apparent on Arguing that post- the face of felony com- plea payment plaint, of restitution and the IJ reduced any considered post-plea loss to her victims restitution to $10,000 below be irrelevant to inquiry. threshold, Kharana moved to terminate re- Petitioner appealed to the Board of Im- moval proceedings. An Immigration migration (“BIA” Appeals “Board”). (“IJ”) Judge motion, denied the found Pe- an unpublished, decision, one-member titioner removable charged, and ordered Board dismissed Kharana’s appeal, ex- removed India. The IJ reasoned “[rjestitution plaining that does not change that, in the context of a conviction obtained the nature of the crime or the fact that by plea, the “loss to the victim or victims” loss did occur.”3 This timely petition for 101(a)(43)(M)(i) § under means review followed. subject made the of a prosecution. approach satisfied,” will 892, be 389 F.3d circumstances, Under these we need not Cir.2004), re- plainly means that where an parties’ solve the disputes factual because the alien is found removable under both repayments had no effect on the nature underlying crime or the fact that a certain § 101(a)(43)(M)(i) § (a)(43)(U), an in- tent defraud a $10,000 victim of more than level of loss occurred. satisfies the requirement loss under the latter subsection but not the former. That the Li 3. Citing of Onyido, Matter 22 I. & N. Dec. 552 court did not differentiate between the two (BIA 1999), the suggested BIA also that even subsections in the paragraph same quot- as the if Kharana’s crime did not any cause actual language imply otherwise. Else- loss, it could be aggravated considered an where opinion, the court quite felony § under 101(a)(43)(U), INA 8 U.S.C. clear to § (a)(43)(M)(i) contrast which re- § 1101(a)(43)(U), which aggra defines quires that "the offense must also have result- vated any "attempt to commit an ed in a loss to the victim or victims more [aggravated felony] offense.” Kharana ar $10,000,” 389 F.3d at gues that because she was not charged with 101(a)(43)(U) under which "intended loss removability 101(a)(43)(U), satisfy can [requirement],” id. n. 8. See Board violated process her due right to fair Ming INS, also Lam Sui v. 118— However, notice. because Kharana was re (2d Cir.2001) (holding that where an alien movable § 101(a)(43)(M)(i) for causing the requisite defraud, intent to but has not actual $10,000, losses in excess of it is irrele taken a step substantial towards completion of vant that the suggested BIA an alternative crime, the alien is not removable under uncharged ground for removal. attempt § 101(a)(43)(U)— subsection— Our concurring colleague makes the related and "may [not] be removed pursuant to sub- but distinct claim that Kharana would be (M)(i) alone, section since the loss vic- removable even if her crime did not any cause tims as a result of his actions did not exceed actual loss because “intended loss satisfies $10,000”). (M)(i)'s section requirement.” Concur- Indeed, interpreting § 101(a)(43)(M)(i)such ring op. at 1286. Neither the any BIA nor that a involving conviction an unsuccessful court has so held and this is not the law. attempt to obtain more than counts context, Read in this court's statement Li as a conviction "in which the loss to the that, "if the record of Ashcroft $10,000” victim or victims exceeds flies in the demonstrates that the jury in Petitioner's case plain face of the meaning of the statute. Fur- actually caused, found that Petitioner ther, or in- such an interpretation would render cause, tended to a loss to the government of (U) nugatory as it relates sub- more than the modified categorical section attempts all to fraudu- of the relevant The elements of Re- and Standard II. Jurisdiction “(1) the offense ‘involves fraud crime view deceit,’ (2) victim or the ‘loss to the ” presents this case Because $10,000.’ Ferreira v. Ash- Kharana’s of of law—whether question (9th Cir.2004). croft, felony— qualifies as fense violating convicted of Cali- Petitioner was 8 U.S.C. jurisdiction under have provides: Penal Code fornia REAL ID Act. by the as amended person knowingly and Every who de- Gonzales, 449 F.3d Morales-Alegria See rep- signedly, by any false or fraudulent 1051, review We 1053 any pretense, or resentation defrauds constitutes Kharana’s labor, whether person money, proper- or other of Id4 de novo. personal, or who aggravated ty, real or whether report procures others to

causes or or mercantile falsely of his or her wealth Analysis III. character, upon by imposing thus credit, thereby con- any person Kharana was obtains To whether determine money of fraudulently gets possession we follow felony, of an victed or ser- or obtains the labor property, v. Taylor of two-step approach another, punishable is vice 2143, 575, 109 110 S.Ct. 495 U.S. and to the same extent as same manner (1990). Ashcroft, Li 389 v. L.Ed.2d 607 property so larceny Cir.2004). First, 892, we 895 obtained. ge- comparison of the categorical a make (em 2006) 532(a) (West felony” Code Cal.Penal “aggravated neric crime—here added). 101(a)(43)(M)(i)—and phases in defined Id. If the crime of conviction. crime of difficulty determining no We have generic than the conviction is broader Penal under California that a conviction crime, employ categorical” a we “modified is a conviction categorically 532 See, “the rec- approach e.g., People determine involving fraud or deceit. unequivocally 246, 271, establishes] 279 Ashley, ord 42 Cal.2d 267 P.2d v. (intent (1954) necessary to all the ele- is a pleaded guilty to defraud the [alien] With by pretenses). Id. at 896 of theft generic offense.” element ments of the victim(s)” omitted). “loss to the ele- respect to the and citation (quotation n. 7 2778, 837, 842-44, 694 S.Ct. 81 L.Ed.2d 104 under the lently obtain more than (1984), generally applicable when a court qualify ag also subsection would former Immi of the the BIA’s construction reviews gravated under the latter subsection. felonies Aguirre- Nationality gration Act. INS "deep reluctance Because of traditional 1439, 424, 415, S.Ct. Aguirre, statutory provision so as to render interpret a However, (1999). statutory 143 L.Ed.2d 590 provisions the same en superfluous in other unpublished in actment,” interpretations announced Dept. Public Penn. Welfare qualify 2126, opinions do not BIA one-member Davenport, S.Ct. 495 U.S. repre they do not (1990) deference because Chevron (superseded by stat 109 L.Ed.2d 588 congressionally-delegated sent an exercise Johnson v. grounds as stated in ute on other Garcia-Quintero v. 78, 83, lawmaking authority. Bank, 111 S.Ct. State 501 U.S. Home Gonzales, (1991)), such a con L.Ed.2d 66 unpub appeals from an Because Kharana impermissible. is struction opinion, and there lished one-member (either on-point binding precedent agency agency inter principles of deference to 4. The U.S.A., published a BIA regulation or a Inc. the form of in Chevron pretations delineated Council, Inc., case), apply Chevron. we do not 467 U.S. v. Natural Res. Def. ment, however, the statute of conviction context. Even if the meaning loss un clearly range criminalizes broader of der the Guidelines was relevant conduct than the offense. “loss to victim or victims” calculation INA, Therefore, under the Petitioner would not bene question before this court whether, “a pursuant limited exami- fit. simply misunderstands nation documents the record of con- Guidelines’ treatment of loss. Under the viction,” INS, Chang Guidelines, the “actual loss” occasioned (9th Cir.2002), may conclude that “reasonably economic offense Kharana’s conviction involved a loss to her pecuniary foreseeable harm that resulted victim victims in excess from the offense.” U.S. Guide includes, “record of conviction” oth- among 3(A)(i) (2006). lines Manual 2B1.1 n. cmt. er things, document, the criminal charging However, the Guidelines do not count Ferreira, guilty pleas, and the judgment. amounts stolen a criminal defendant 390 F.3d at 1095. but then returned the victim case, In this doc charging state was detected as losses. U.S. Sen ument alleged that Kharana her caused tencing § Guidelines Manual 2B1.1 cmt. n. to victims suffer more than in loss 3(E)(i) (2006). contrast, a defendant outstanding es. The losses time the of who returns stolen money only after detec Kharana’s plea accurately were reflected tion does not receive a so-called credit in complaint. This would seem against loss. Bright, United States v. 353 a ground sufficient to conclude that This is so conviction a greater involved loss “ ‘[Repayments before detection $10,000. However, Kharana contends on an show untainted intent to ... reduce appeal that “paid she down” the losses to loss,’ ‘[Repayments whereas after detec her to victims and is therefore not $0 may tion show no more than an effort to charged. removable as ” accountability.’ reduce (quoting Id. Unit Petitioner asserts that because the INA Stoddard, ed States v. 150 F.3d fails to define to “loss the victim or vic- (9th Cir.1998)); see also United States any precision, tims” with ought to look Mummert, (3d Cir.1994) to the in manner which losses calculat- (“A in defendant a fraud case should not purpose for the of determining offense be able to reduce the amount levels under the for United States loss Sentencing (“USSG” “Guidelines”). Guidelines or sentencing purposes by Un- offering to make Guidelines, der the level for a (cited restitution being after caught.”) basic economic crime such as theft approval Davoudi, in United States pretenses may be increased on depending 1130, 1135 Cir.1999)). the dollar amount of “loss” occasioned case, In this repaid Kharana the stolen the crime. Guidelines money only her scheme 2B1.1(b)(1) (2006). Manual Kharana as- after fraudulent discovered, tvas only and indeed she serts that where a after criminal defendant re- subject stores stolen or had been property prior of a prosecu- sentencing, a court applying guidelines USSG, tion. Under the a reduction in the must credit the restored against amount loss on this basis would “distort the loss calculation. magnitude crime” [her] and would inappropriate. be Bright,

We 353 F.3d at do decide whether approach Therefore, calculating assumed, loss even under the Guidelines if we be transported should into the deciding, removal without provided that the USSG far that losses indicates thus complaint calcu- method proper as to the guidance Kharana qualify required those not benefit.5 exceed would loss, Kharana lating think One would felon. aggravated an as DENIED. is review for petition matter. end would that concurring Judge, WALLACE, Circuit however, be- that suggests, Kharana judgment: full made she cause “con to her sentencing, if she was deportable date U.S.C. felony,” and there- exceed an did not aggravated victed victims (iii), defined 1227(a)(2)(A) qualify which does conviction fore deceit involving] fraud felony. “offense victim to the the loss Nationality Act Immigration U.S.C. $10,000,” victim “loss (INA) define dispute There 1101(a)(43)(M)(i). raised has been the issue victims,” but California conviction Kharana’s petitioner Onyido, re In In cases. 532(a) an offense for Penal $60,000 payment a sought fraudulently However, be or deceit.” “fraud involving a medical on company insurance from an 532(a) require section cause to settle agreed policy, loss, Kharana’s incur or victims victim banc). (en 1999) (BIA Dec. I. & N. categorical a is not statute sign meeting aat arrived he When Taylor (M)(i). See match $15,000, he collect release 599-602, 110 States, 495 U.S. petitioner After at 554. arrested. (1990). 607 2143, 109 L.Ed.2d S.Ct. fraud, an law for state under convicted was docu charging state may look We (IJ) he held that Judge Immigration things, determine other ment, among (M)(i) well as subsection under deportable loss involved Kharana’s 1101(a)(43)(U),which U.S.C. under Fer $10,000. See exceeding to her victims at- felony as “an defines (9th F.3d Ashcroft, 390 reira an offense to commit conspiracy tempt states complaint Cir.2004). felony 1101(a)(43) at ].” in [section described de and knowingly “did 553-54. rep fraudulent and and signedly, Appeals Immigration of Board vic defraud” pretense, and resentation (U) subsection the IJ’s (Board) affirmed $77,000. The than more of tims review, court this for petition Kharana's v. Gal- States United misreads Petitioner reasoning and the disapproved Cir.1994). expressly (10th That braith, prece- no it has and hold, holding in Galbraith Petitioner decidedly does case Robinson, States United here. value makes dential a defendant argues, "that if Cir.1996). (9th sentencing, the prior to 1328-29 F.3d part a loss all or victim(s) is reduced [the] loss actual Davoudi, 172 does Neither Gal- Sentencing Guidelines.” Federal Cir.1999), support provide F.3d of restitu- payment not involve did braith merely stands case That Petitioner. Indeed, not even case did at all. tion caused of loss amount that the proposition loss” of "actual a calculation involve include case loan a fraudulent that, Rather, holds Galbraith Guidelines. may recover lender defrauded amounts loss no actual there is where Id. at loan. to secure pledged assets law enforcement from a creation "victim” se- collateral Recovery by a lender possi- could operation and sting during a restitution. not constitute curing a loan harmed, "intended bly be loan. fraudulently obtain measure, did Kharana Nor loss,” anas alternate used probable this case. pertinent to Davoudi irrelevant this case only is Not zero. determination rejected petitioner’s (2d F.3d Cir.2001) (according contention that the subsection requires the Onyido deference under U.S.A., Chevron victim to have suffered “actual loss” Inc. v. Natural Council, Res. Inc., 467 Def. $10,000. Id. at 554. Al- S.Ct. 81 L.Ed.2d 694 though the petitioner had not been convict- (1984), and holding that the Board’s inter- ed of fraud, attempted the Board reasoned pretation (U) of subsection was reason- that his “actions support a conviction for able). attempted fraud which is a lesser included Arguably, Li went on to answer the offense within a conviction for fraud under question left open by Onyido-. whether Indiana law.” Id. According to Board, intended can satisfy subsection the petitioner’s failure to obtain the (M)(i)’s loss requirement. Without differ- $15,000 therefore had “no consequence” entiating between crimes set (U). under subsection Id. The Board did forth in subsections (U), Li not address whether the petitioner was stated that “if the record of conviction also deportable under (M)(i). subsection demonstrates that ... Petitioner caused, Id. at 554-55. cause, intended to a loss ... of more We interpreted Onyido in Li v. Ash- the modified categorical ap- croft, where petitioner was convicted of proach will be satisfied.” 389 eight fraud-related federal offenses. 389 (emphasis added). Li suggests that Khar- 894-97 The for- ana’s argument concerning victims’ mer Immigration and Naturalization Ser- losses after restitution is mistaken because (INS) vice charged petitioner as re- intended loss satisfies (M)(i)’s movable under section 1227(a)(2)(A)(iii)as loss requirement, and it is undisputed that one who had committed an aggravated fel- her record of conviction establishes her ony as defined in (M)(i), (U), subsections intent to defraud her an amount 8 U.S.C. 1101(a)(43)(G),which de- excess of fines an aggravated felony as “a theft of- any case, this is the proper fense ... interpre- for which the term imprison- tation of (M)(i), subsection ment I at and support [is] least one year.” Id. at 894. By it. plain its terms, (U) The agreed IJ subsection with the INS with respect not provide any to (M)(i) additional gloss subsections (U) on the and did not term “loss” rule as it on the argument appears in (G). subsection subsection (M)(i). Id. at “Loss” 894-95. therefore The Board has the affirmed. same Id. at meaning regardless of whether the alien is charged under (M)(i) (U). subsections or On petition for review, we held that the Because we have that held “loss” means record of conviction was adequate to intended loss under (U), this establish that the jury actually found the holding applies with equal force under requisite sub- amount of loss. Id. at 899. Our (M)(i). section discussion the at crimes issue in the case is revealing. This Citing Onyido, makes sense. In many cases, such set forth the two as elements of the the one subsec now us, before the fact of tion generic crime—fraud and restitution loss— will not be reflected in the rec- and stated that either “[potential ord of in a or fraud conviction because restitu- tended loss” satisfy the second tion element bears on neither the criminal act itself (U). under subsection Id. at n. nor Li on the mental element required for thus establishes Onyido’s holding as the criminal liability. (M)(i), Subsection in my law of this circuit. Sui INS, view, Cf. should not be interpreted to require sentencing (2006). The 2Bl.l(b)(l) unrelat- facts to establish government the greater the is that “loss instructed is completed court a typical elements at Id. loss.” intended or to subject actual loss True, person a offense. fraud “ 3(A). loss’ means ‘Actual n. may offer cmt. 2B1.1 offense a fraud prosecution harm pecuniary the reasonably foreseeable returned that she evidence offense,” whereas to not intend from she did that resulted that victim to her like pecuniary evidence this means weight loss’ [] But the “‘[i]ntended obtain. deter- from result fact-finder’s to in the intended reflected be harm that will losses. pecuni- to intended intended respect includes offense; with [ ] mination turn, decide impossible will been finding, in have would This harm that ary deporta- eligible is cmt. § 2B1.1 alien at criminal occur.” Id. unlikely to meas- (ii). of which tion. 3(A)(i), Regardless n. used, the Guidelines loss is that this urement majority disagree I “creditfj against court subsec- require necessarily renders interpretation returned the defendant to subsec- amount it relates (U) as loss” nugatory tion detect- only of the offense convicted before (M)(i). the victim A to tion 3(E)(i). involving This n. cmt. 2B1.1 to commit ed. attempting removable detection be still may “[rjepayments deceit so fraud lat- any section, to reduce intent former an untainted show Bright, States ter. United loss.” Cir.2004) marks (quotation 1114, 1118 discus- end our more, this should Once omitted). refer- and citation drive-by two on But based sion. States the United loss, to there ences is not against loss Credit “a (Guidelines) suggesting Guidelines provision credit-against-loss findings specific to make required judge Likewise, the statute. defen- compute of loss amount as to the same not the loss is repay intent advances majority punishment,” dant’s a loss cause of intent the absence question. I argument unnecessary Therefore, to the extent instance. first restitution, Guidelines and the such The INA made may have in- to be statutes necessarily “similar for subsec- implicate, manner.” similar in a terpreted of loss (M)(i) purposes, tion Ressam, her victims. de- Court Supreme argu- I understand majority, ac- civil ‘purely aas “deportation scribed not does Kharana ment, that determines from a distinct separate tion’ un- departure for downward qualify fact v. Amador- proceeding.” 3(E)(i) because n. cmt. 2B1.1 der section Cir.2002), Leal, before restitution make not did she 468 U.S. Lopez-Mendoza, INS v. quoting thus majority The detected. offense 3479, L.Ed.2d 104 S.Ct. eligibility if Kharana’s even concludes punishment not (1984). “[DJeportation our were relevant sentencing relief for com- argument The crime.” for (M)(i), she subsection interpretation oranges. apples to pares own of her conditions satisfy the Guidelines addition, on the rebanee argument. Guidelines, a defen- Under misplaced. determin- no basis majority has increases level dant’s all, made ing that crime. by her occasioned of “loss” was detect- her offense only after let alone Manual Guidelines 128

ed. Neither the Board nor the IJ made findings on the issue. parties’ briefs ROGERS; Thomas Rogers, Nicole are contradictory, the record of conviction individual; Steven Kahncock, Guard is unrevealing, and oral argument did not ian ad litem for minors Thomas R. clarify matters. Kharana’s counsel an- Rogers Shelby Rogers, Plaintiffs- swered “Yes” question, “Is it true Appellants, that on the date of her plea, the felony complaint accurately stated the losses

caused Mrs. Kharana’s conduct?” Tr. COUNTY OF SAN JOAQUIN; Charlotta of Oral Argument at 0:40-0:55, Kharana v. Royal, individually and in her official Gonzales, (Feb. No. 14, 2007). 04-71335 capacity as social worker But counsel also said that “the majori- vast County Joaquin San Human Ser ty of the restitution, which was under Agency; vices West, Denise individu paid pled [Kharana] ally and in her official capacity as guilty to the crime.” Id. at 1:30-1:47. social worker for County of San This latter statement leaves open the pos- Joaquin Human Agency; Services City sibility that restitution prior occurred Lodi; Lewis, Dennis individually detection. and in his capacity as police officer The majority’s position is made all the City for the Lodi, Defendants-Ap more perplexing its statement pellees. Kharana is removable for having “caused No. 05-16071. actual losses in $10,000.” excess of Major- ity Op. at n. 3. The majority tell United States Court Appeals, us what “actual loss” means or how it is Ninth Circuit. calculated, and it does explain why Argued subsection April 16, Submitted encompasses this princi- ple of loss. If actual loss necessarily ex- Filed May cludes amounts returned to victim, then why does the majority assume, with-

out deciding, that the Guidelines’ credit-

against-loss provision is relevant to our

interpretation of (M)(i)? If, on hand, other actual loss accounts for

amounts returned to victim, then why

does Kharana nevertheless qualify as an

aggravated felon? The majority fails to

answer these necessary questions.

Therefore, I would address, in dicta

or otherwise, when any restitution oc-

curred. Kharana became deportable when pled

she guilty to knowingly and fraudu-

lently taking possession of the money. See 532(a).

CaLPenal

Case Details

Case Name: Bhupinder Kaur Kharana v. Alberto R. Gonzales, Attorney General

Court Name: Court of Appeals for the Ninth Circuit

Date Published: May 29, 2007

Citation: 487 F.3d 1280

Docket Number: 04-71335

Court Abbreviation: 9th Cir.