United States v. Pisanu Sukhtipyaroge ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-2799
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United States of America
Plaintiff - Appellee
v.
Pisanu Sukhtipyaroge, also known as Pat
Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: October 21, 2020
Filed: June 16, 2021
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Before COLLOTON, GRASZ, and STRAS, Circuit Judges.
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STRAS, Circuit Judge.
After helping a high-school student enter the United States on a fraudulent
visa, Pisanu Sukhtipyaroge sexually and financially exploited him. The issue on
appeal is whether he has to pay restitution for the harm he caused. The district court 1
concluded that he did, and we affirm.
1
The Honorable Wilhelmina M. Wright, United States District Judge for the
District of Minnesota.
I.
Sukhtipyaroge met A.S.M. during a visit to the Dominican Republic. After
they became friends, Sukhtipyaroge offered to help A.S.M., a Dominican citizen,
get an F-1 student visa to continue his education in the United States. See 8 U.S.C.
§ 1101(a)(15)(F)(i).
Sukhtipyaroge filled out A.S.M.’s application and provided an affidavit of
support. In the latter, he promised to “provide food, housing, transportation, school
supplies, and . . . cover tuition.” The information he gave, however, did not tell the
whole story. Nowhere did he say, for example, that A.S.M. would remain in the
United States even after school was over. Nor did he disclose that the plan was for
A.S.M. to work at a restaurant owned by Sukhtipyaroge’s family. Revealing either
fact could have jeopardized the application. See id.; 8 C.F.R. § 214.2(f)(5)(i), (f)(9).
A critical moment for the scheme came when A.S.M. interviewed at the
embassy. Sukhtipyaroge told him beforehand that he had to keep his work at the
family restaurant “a secret” and “convince” the interviewers that he “want[ed] to
come back to Santo Domingo” when he finished school. A.S.M. did exactly as he
was told.
After the application was approved, A.S.M. attended school in the United
States for several months, at which point he stopped and began working even longer
shifts at the restaurant. Of the $500 per week he earned, Sukhtipyaroge deducted
$375—some for living expenses, despite promising in the affidavit that he would
pay for them himself. The exploitation was more than just financial: he also forced
A.S.M. to perform sex acts “[m]ultiple times a week.”
A.S.M. was in no position to refuse. At various points, Sukhtipyaroge had
threatened to kick him out of the house, fire him from the restaurant, have him
removed from the country, and harm his family. A.S.M. eventually escaped after
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contacting an abuse hotline, but not before he endured nearly two years of abuse that
resulted in several suicide attempts and left him with post-traumatic stress disorder.
Sukhtipyaroge pleaded guilty to visa fraud, see 18 U.S.C. §§ 2, 1546, and
harboring an alien, see 8 U.S.C. § 1324(a)(1)(A)(iii), (B)(i). The district court
sentenced him to 42 months in prison and, for the visa-fraud offense, ordered him to
pay a total of $77,694.40 in restitution, $54,729.40 of which will go directly to
A.S.M. For several reasons, Sukhtipyaroge asks us to overturn the restitution order.
II.
Under the Mandatory Victims Restitution Act, a district court “shall order . . .
the defendant [to] make restitution to the victim of the offense.” 18 U.S.C.
§ 3663A(a)(1). This obligation, which is for “the full amount of each victim’s
losses,” United States v. Frazier, 651 F.3d 899, 903 (8th Cir. 2011) (quoting 18
U.S.C. § 3664(f)(1)(A)), extends to several types of crimes, including, as relevant
here, “offense[s] against property,” 18 U.S.C. § 3663A(c)(1). The losses must,
however, be “caused by the specific conduct that is the basis of the . . . conviction.”
United States v. DeRosier, 501 F.3d 888, 896 (8th Cir. 2007) (quoting Hughey v.
United States, 495 U.S. 411, 413 (1990)). The underlying circumstances of the
crime, in other words, matter.
Within this basic framework, Sukhtipyaroge challenges three aspects of the
restitution order. The first two are whether he committed an “offense against
property” and whether A.S.M. is a “victim,” both of which would ordinarily present
questions of law that we review de novo. See United States v. Chalupnik, 514 F.3d
748, 752 (8th Cir. 2008); United States v. Mickle, 464 F.3d 804, 810 (8th Cir. 2006).
The other one is factual and subject to clear-error review: whether he “caused”
A.S.M.’s losses through visa fraud. See United States v. Spencer, 700 F.3d 317, 323
(8th Cir. 2012). Only the last issue is before us because Sukhtipyaroge has waived
the other two.
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A.
Sukhtipyaroge argues for the first time on appeal that he did not commit “an
offense against property.” 18 U.S.C. § 3663A(c)(1)(A)(ii) (covering this type of
crime). Not only is this argument new, it is the polar opposite of what he argued
before the district court. See United States v. Thompson, 289 F.3d 524, 526–27 (8th
Cir. 2002) (“On appeal, [the defendant] cannot complain that the district court gave
him exactly what [he] asked.”). There, he “agree[d]” when he pleaded guilty, and
later “reaffirm[ed]” in briefing, that the Mandatory Victims Restitution Act applied.
At one point, he even admitted that visa fraud was “an offense against property.” 18
U.S.C. § 3663A(c)(1)(A)(ii). Having “intentional[ly] relinquish[ed]” any argument
to the contrary before the district court, he cannot now change his position on appeal.
United States v. Olano, 507 U.S. 725, 733 (1993) (quotation marks omitted)
(defining waiver); see also United States v. Chavarria–Ortiz, 828 F.3d 668, 671 (8th
Cir. 2016) (explaining that “[w]aiver precludes appellate review”).
We reach the same conclusion about Sukhtipyaroge’s argument that A.S.M.
is not a victim. See 18 U.S.C. § 3663A(a)(2) (defining “victim”). In the plea
agreement, he admitted that A.S.M. was “an identifiable victim who . . . suffered a
physical injury or pecuniary loss.” It is true, as he points out, that he later clarified
that A.S.M. “suffered a loss . . . only to the extent that he was a victim of the fraud
and not an accomplice.” See United States v. Archer, 671 F.3d 149, 171 (2d Cir.
2011) (explaining “that co-conspirators . . . are not victims”). Still, having expressly
agreed that A.S.M. was entitled to at least some restitution as an “identifiable
victim,” he cannot now make the exact opposite argument on appeal. See United
States v. Nguyen, 46 F.3d 781, 783 (8th Cir. 1995) (concluding that the defendant
could not “argue[] that he was sentenced under the wrong guideline” when he
“acknowledged in the plea agreement that [the guideline] would apply at
sentencing”). This challenge, in other words, has been waived too. See Chavarria–
Ortiz, 828 F.3d at 670–71.
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B.
The only issue that Sukhtipyaroge has not waived is whether his “specific
conduct” caused A.S.M.’s losses. DeRosier, 501 F.3d at 896 (quoting Hughey, 495
U.S. at 413); see also United States v. Hansmeier, 988 F.3d 428, 439–40 (8th Cir.
2021) (concluding that the defendant did not waive his right to challenge “the
amount of loss actually caused by the defendant’s offense” even when he “agreed
that the [Mandatory Victims Restitution Act] would apply and that the court would
order him to pay restitution” (quotation marks omitted)). Given that the district court
ordered restitution based on visa fraud alone, the government had the burden of
proving that the fraud both directly and proximately caused the losses. See Spencer,
700 F.3d at 323 (applying direct and proximate cause in the context of the Mandatory
Victims Restitution Act); United States v. Sharma, 703 F.3d 318, 323 (5th Cir. 2012)
(“The [Mandatory Victims Restitution Act] limits restitution to the actual loss
directly and proximately caused by the defendant’s offense of conviction.”); see also
Hansmeier, 988 F.3d at 440 (establishing the burden).
A.S.M.’s losses fell into two categories. In the first were future wage loss and
medical expenses stemming from the sexual abuse. See 18 U.S.C. § 3663A(b)(2)
(requiring restitution for “an offense resulting in bodily injury to a victim”). In the
other were lost wages, including what was withheld from his paychecks. See id.
§ 3663A(b)(1) (calling for restitution, including “return [of] property” when an
offense “result[s] in damage to or loss or destruction of property”). The district court
found that both types of losses were caused by Sukhtipyaroge’s “specific conduct,”
DeRosier, 501 F.3d at 896 (quoting Hughey, 495 U.S. at 413), and in our view,
neither finding was clearly erroneous, see Spencer, 700 F.3d at 323.
Direct causation here is straightforward. A.S.M. would not have come to the
United States nor suffered sexual abuse and financial exploitation without the
fraudulently obtained visa. See Spencer, 700 F.3d at 323. But for the visa fraud, in
other words, neither type of injury would have occurred. See id.; see also United
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States v. Collins, 854 F.3d 1324, 1336 (11th Cir. 2017) (explaining that the offense
conduct “need not be the sole cause” of the loss (quotation marks omitted)).
More is required for proximate cause, which focuses on whether the losses
were reasonably foreseeable under the circumstances. See Spencer, 700 F.3d at 323.
It is absent when “the causal link between conduct and result is so attenuated that
the consequence is more aptly described as mere fortuity.” Paroline v. United States,
572 U.S. 434, 445 (2014).
None of A.S.M.’s losses fall under that description. Take the sexual abuse for
instance. Sukhtipyaroge had done it before, with another student whom he had
helped bring into the country, and he was planning to do it again. Based on this
evidence, the district court found that he had “lured” A.S.M. to the United States
“with ulterior motives,” including sex. And then he later ensured compliance with
his demands through “fear,” based on threats that were only possible because he was
A.S.M.’s visa sponsor. Cf. United States v. Johns, 15 F.3d 740, 742–43 (8th Cir.
1994) (explaining how a defendant had committed sexual abuse under 18 U.S.C.
§ 2242(1) in part by using “his position as spiritual teacher and healer” to cause the
victim to fear harm to herself and others). It could hardly have been a surprise to
Sukhtipyaroge when A.S.M. suffered bodily injury from the sexual abuse. See
Paroline, 572 U.S. at 445; United States v. Spinney, 795 F.2d 1410, 1416 (9th Cir.
1986) (concluding proximate cause was met when the “[d]efendant supplied the idea
and all the means for” the resulting harm). After all, the visa fraud “created the
circumstances under which the [sexual abuse] occurred.” United States v. Hackett,
311 F.3d 989, 993 (9th Cir. 2002) (quotation marks omitted).
There was an even closer tie between the property losses and the fraud. Before
filling out the visa application, Sukhtipyaroge had already been planning to have
A.S.M. work at the restaurant. He then ordered A.S.M. to hide this fact by keeping
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it “a secret” during the interview.2 Later, Sukhtipyaroge took advantage of his role
as visa sponsor to force A.S.M. to work at the restaurant despite paying below-
market wages and withholding large sums from his paycheck. As a part of
Sukhtipyaroge’s plan from the beginning, the losses caused by his financial
exploitation were not only reasonably foreseeable, they were a key reason for
bringing him here. See Spencer, 700 F.3d at 323 (bearing in mind the “premise[]”
of the scheme); Collins, 854 F.3d at 1336 (considering whether a harm “was the
natural—if not inevitable—consequence of [the defendant’s] actions”).
III.
We accordingly affirm the judgment of the district court.
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2
To the extent Sukhtipyaroge argues that causation does not exist because
A.S.M. participated in the scheme, it is just an attempt to get his waived A.S.M.-is-
not-a-victim argument in through the back door. See Archer, 671 F.3d at 171 (“[C]o-
conspirators . . . are not victims.”). In any event, we reject it. See United States v.
Robertson, 493 F.3d 1322, 1334 (11th Cir. 2007) (explaining that “any subsequent
action that contributes to the loss, such as an intervening cause,” does not
unreasonably extend the causal chain if it is “directly related to the defendant’s
conduct” (quotation marks omitted)).
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