835 F.3d 793

8th Cir.

2016

Charles SOKPA-ANKU, Petitioner v. Loretta E. LYNCH, Attorney General of the United States, Respondent

No. 15-3230

United States Court of Appeals, Eighth Circuit.

Submitted: May 18, 2016. Filed: August 26, 2016

835 F.3d 793

Before WOLLMAN, LOKEN, and BENTON, Circuit Judges.

[18 U.S.C. §] 3553(a) to the extent that they are applicable.” (emphasis added). Even where a defendant is eligible for a sentence reduction, the “doubly discretionary” language of § 3582(c)(2) does not entitle a defendant to a reduced sentence. United States v. Long, 757 F.3d 762, 764 (8th Cir. 2014) (quoting United States v. Johnson, 703 F.3d 464, 470 (8th Cir. 2013)). In fact, “[f]ar from creating a substantive right to a modification, ’§ 3582(c)(2) represents a congressional act of lenity.‘” Johnson, 703 F.3d at 469 (emphasis added) (quoting Dillon v. United States, 560 U.S. 817, 828 (2010)).

Under U.S.S.G. § 1B1.10(b)(1), a district court “shall substitute” the amended Guidelines range for the initial range and “shall leave all other guideline application decisions unaffected.” The Application Notes for U.S.S.G. § 1B1.10 advise the district court to consider the § 3553(a) factors, “the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant‘s term of imprisonment,” and “post-sentencing conduct of the defendant that occurred after imposition of the term of imprisonment.” U.S.S.G. § 1B1.10 cmt. n. 1(B).

We note that Boyd‘s criminal history contained a second-degree murder conviction among multiple other offenses committed as both a juvenile and an adult. His record of misconduct while incarcerated for his current conviction includes thirty acts that required administrative sanctions, including fights, introduction of drugs/alcohol, possession of a dangerous weapon, assault, property destruction, and sexual activity. Given the district court‘s explicit statement regarding its consideration of the § 3553(a) factors, the nature and seriousness of the danger to other persons or the community that a reduction in Boyd‘s sentence may pose, and Boyd‘s post-sentencing conduct, we are satisfied that the district court adequately weighed the appropriate factors in its decision to deny a sentence reduction. The length of Boyd‘s post-sentencing misconduct report demonstrates both his failure to improve his behavior as well as the seriousness of the danger posed to the community by a further reduction in his sentence. Boyd‘s loss of good time credit as a result of his behavior is of no consequence to the district court‘s sentence reduction decision. Our review of Boyd‘s sentence reveals no abuse of the district court‘s wide discretion.

Accordingly, we affirm the district court‘s denial of the 18 U.S.C. § 3582(c)(2) motion to reduce Boyd‘s sentence pursuant to Amendment 782.

Counsel who presented argument on behalf of the petitioner was Bianca Del Vescio, student at University of St. Thomas, in Minneapolis, MN and Alexandria Hare, student of the University of St. Thomas, at Minneapolis, MN. The following attorney also appeared on the petitioner‘s brief; Elizabeth Holmes, Supervising Attorney, of Bloomington, MN.

Counsel who presented argument on behalf of the respondent was Stratton Christopher Strand, of Washington, DC. The following attorneys also appeared on the respondent‘s brief; Benjamin C. Mizer, Principal Deputy Assistant Attorney General, of Washington, D.C., Derek C. Julius, Senior Litigation Counsel, of Washington, D.C. and Benjamin Mark Moss, of Washington, D.C.

OPINION

LOKEN, Circuit Judge.

A jury convicted Charles Sokpa-Anku, a citizen of Ghana and a lawful permanent resident of the United States, of three counts of “medical assistance fraud” in violation of Minn. Stat. § 609.466. The Department of Homeland Security commenced removal proceedings, alleging that Sokpa-Anku was removable because he had been convicted of an aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii). The term “aggravated felony” includes “an offense that ... involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” 8 U.S.C. § 1101(a)(43)(M)(I).

Conceding that his Minnesota conviction was an offense involving “fraud or deceit,” Sokpa-Anku moved to terminate the proceedings, arguing that none of the three counts of conviction was a fraud offense in which victim loss exceeded $10,000. The Board of Immigration Appeals (“BIA“) determined that the Minnesota conviction was an aggravated felony and ordered Sokpa-Anku removed to Ghana. Sokpa-Anku petitions for review of the BIA‘s decision. He argues that the BIA erred by aggregating losses from his three counts of conviction in calculating victim loss under § 1101(a)(43)(M)(I). We have jurisdiction to consider this issue of law. See Tian v. Holder, 576 F.3d 890, 895 (8th Cir. 2009). We deny the petition for review.

From July 2008 until he was terminated in December 2012, Sokpa-Anku owned and operated a home health care business that was an enrolled Minnesota Medicaid provider. In a March 2014 criminal complaint, state authorities alleged that a Medicaid fraud investigation revealed that, in 2009 and 2010, Sokpa-Anku “consistently billed for [Medicaid] services without supporting documentation.” The complaint charged him with four counts of intentionally filing false claims for Medicaid reimbursement that “resulted in an overpayment to [Sokpa-Anku] of $23,729.67 for [Medicaid] services allegedly provided in 2009 and 2010.” Each count alleged a specific date range and the amount paid by the Minnesota Department of Human Services (“DHS“) for Medicaid services: Count 1, $9,860; Count 2, $6,271; Count 3, $2,607; and Count 4, $4,983. Count 3 was dismissed before trial.

The jury convicted Sokpa-Anku of counts 1, 2, and 4. Those counts alleged fraud in sequential time periods based on “the dates reimbursement claims were paid by DHS“—August 4, 2009-February 2, 2010; February 17, 2010-August 3, 2010; and August 31, 2010-January 4, 2011. The state court Register of Actions reports that the court imposed concurrent sentences on the three counts and ordered Sokpa-Anku to pay $20,791 in restitution on each count.

In Nijhawan v. Holder, 557 U.S. 29, 36 (2009), the Supreme Court held that the $10,000 threshold in § 1101(a)(43)(M)(I) is not an element of a fraud offense and therefore may be proved by evidence of the particular circumstances of an alien‘s specific offense. Applying this “circumstance specific approach,” the IJ concluded that Sokpa-Anku caused his victim, the Minnesota DHS, an actual loss greater than $10,000, whether the loss is calculated by aggregating the amount pleaded for each count in the criminal complaint, or by the order to pay $20,791 in restitution on each count. The IJ explained:

Although [Sokpa-Anku] was convicted of 3 different counts, all of the counts were for the same offense, namely Medical Assistance Fraud. The descriptions of the counts are also nearly identical to one another. In committing his offense, [Sokpa-Anku] utilized his business to commit the same conduct (submitting false reimbursement claims) against the same victim ... over a continuous period in 2009 and 2010. Tellingly, [Sokpa-Anku‘s] submitted claims were divided into four timeframes ... merely for the purposes of charging.

The BIA adopted and affirmed the IJ‘s analysis, noting that the three counts of conviction “were for the same crime, involved the same victim and essentially the same facts, as well as the same plea agreement.”

Sokpa-Anku argues that the IJ and BIA erred by “aggregating” losses from multiple “offenses.” Noting that § 1101(a)(43)(M)(I) uses a singular term, “offense,” he argues that each count of conviction must be considered a distinct “offense.” Though Nijhawan did not involve a multi-count fraud conviction, Sokpa-Anku‘s textual argument is contrary to the Court‘s opinion, which consistently used the terms “offense” and “conviction” interchangeably. The Court framed the inquiry in Nijhawan as whether “a prior conviction involved a fraud with the relevant loss to victims,” and whether “the loss involved in a prior fraud or deceit conviction amounted to at least $10,000.” Id. at 41 (emphases added). The Court explained that the $10,000 threshold requires a court to “look to the facts and circumstances underlying an offender‘s conviction.” Id. at 34 (emphasis added). The Court endorsed prior decisions holding that the “the loss must be tied to the specific counts covered by the conviction;” it may not be tied to “acquitted or dismissed counts or general conduct.” Id. at 42 (emphasis added; quotations omitted); see James v. Gonzales, 464 F.3d 505, 510-12 (5th Cir. 2006); Knutsen v. Gonzales, 429 F.3d 733, 736-40 (7th Cir. 2005); Khalayleh v. INS, 287 F.3d 978, 980 (10th Cir. 2002).

In this case, there is one conviction, and the total loss is directly tied to three specific fraud counts “covered by the conviction.” Sokpa-Anku responds that “courts must determine loss to victims tied to each count” separately, unless the underlying conviction was for a scheme or conspiracy. But the cases he cites predated Nijhawan and dealt with whether acquitted counts and general conduct can be considered in calculating loss amount. Sokpa-Anku cites no case holding that multiple fraud counts of conviction cannot be aggregated in determining whether the conviction was an aggravated felony under § 1101(a)(43)(M)(I).

In this case, we need not decide whether totally unrelated fraud counts in a single conviction may be aggregated. As the BIA recognized, Sokpa-Anku‘s three fraud counts of conviction were part of a sufficiently interrelated fraud to warrant aggregation, whether or not the criminal complaint included an express allegation of conspiracy or scheme to defraud. Cf. Eversley-MacClaren v. Holder, 578 Fed. Appx. 664, 665-66 (9th Cir. 2014) (nine fraud counts of conviction aggregated where criminal information alleged that each was “connected in its commission” with another). Likewise, the order to pay an aggregated restitution amount demonstrated that Sokpa-Anku did not commit multiple, unrelated frauds. See Nijhawan, 557 U.S. at 43 (restitution order indicative of loss amount); Munroe v. Ashcroft, 353 F.3d 225, 227-28 (3d Cir. 2003) (same); In re Babaisakov, 24 I. & N. Dec. 306, 319 (2007) (same).

For the foregoing reasons, we deny the petition for review.

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