Knutsen, Jon v. Gonzales, Alberto ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-4048
JON KNUTSEN,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of a Decision of
the Board of Immigration Appeals.
No. A10-856-897.
____________
ARGUED SEPTEMBER 12, 2005—DECIDED NOVEMBER 22, 2005
____________
Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Petitioner Jon Knutsen, a
citizen of Norway and a lawful permanent resident of the
United States, appeals a decision by the Board of Immi-
gration Appeals (BIA) which affirmed the immigration
judge’s (IJ) order of removal. The IJ’s decision was based on
a determination that monetary losses from unconvicted
“relevant conduct” could be considered in calculating
whether Knutsen had been convicted of a crime of fraud
involving losses greater than $10,000, pursuant to Section
237 of the Immigration and Nationality Act (INA). See 8
U.S.C. § 1227 (a)(2)(A)(iii) (2000). The IJ primarily relied on
the Tenth Circuit’s decision in Khalayleh v. INS, 287 F.3d
978 (10th Cir. 2002), which held that losses from dismissed
2 No. 04-4048
counts in an indictment could be considered, provided those
counts were part of the same fraudulent scheme. Because
the IJ’s decision is contrary to the plain language of the
INA, and the IJ misapplied the Khalayleh decision, we
grant Knutsen’s petition for review, vacate the IJ’s order of
removal, and remand for further proceedings in accordance
with this opinion.
I. BACKGROUND
In 1957, Knutsen was admitted to the United States
as a lawful permanent resident, a status that he has
continuously held since that time.1 On February 19, 1998,
a federal grand jury indicted Knutsen on two counts of bank
fraud under 18 U.S.C. § 1344. Count One alleged that from
January through July 1995, Knutsen executed a scheme to
defraud his employer, Firstar Bank, by (1) converting funds
from Firstar Bank’s petty cash and operating accounts and
depositing them into his personal account and (2) depositing
a customer’s check, which was payable to Firstar Bank, into
his personal account. Count One alleged a total $7,350 loss
from Knutsen’s misappropriation of funds. Count Two
alleged that during September 1995 Knutsen orchestrated
a check-kiting scheme. He deposited several insufficient-
funds checks, drawn on his Firstar personal account, at
several non-Firstar ATM’s to take advantage of the time
delay in processing the checks. This gave him an artificially
1
In the Notice to Appear, the government alleged that Knutsen
was admitted to the United States as an immigrant (SB-1) on
or about May 14, 1971. Knutsen contested this date at the ini-
tial hearing before the IJ. In his written opinion, the IJ resolved
this issue in Knutsen’s favor. In any event, there is no dispute
that Knutsen has been a long-term resident in the United States,
and his specific date of admission is not significant for purposes
of this opinion.
No. 04-4048 3
inflated balance in his account, causing Firstar to lose
$12,930.96.
On September 3, 1998, Knutsen entered into a written
plea agreement in which he pled guilty to Count One. The
government, in turn, agreed to dismiss Count Two. Knutsen
also stipulated that the facts alleged in Count Two consti-
tuted “relevant conduct within the meaning of [Sentencing]
Guideline § 1B1.3.” For the purpose of adjustments under
the Sentencing Guidelines, he acknowledged that the “total
loss from the offense of conviction and relevant conduct
exceeded $20,000.”
On September 3, 1998, the district court judge, after
dismissing Count Two, consistent with the plea agreement,
sentenced Knutsen to five months’ imprisonment, with a
recommendation for home confinement, and three years
supervised release. In the judgment order, under the
section entitled “Guideline Range Determined by the
Court,” the district court judge entered a total amount of
restitution of $22,480, although he did not order actual
payment of restitution.2
On November 23, 1999, the government moved for
Knutsen’s removal due to his bank fraud conviction,
claiming that since Knutsen had been convicted of an
aggravated felony relating to fraud or deceit in which the
loss to the victims exceeded $10,000, he was subject to
removal under 8 U.S.C. § 1227 (Section 237 of the INA).
Following several hearings, the IJ issued a written
opinion in which he concluded that Knutsen’s conviction
constituted an aggravated felony under the INA. As a
result, the IJ ordered that Knutsen be removed from the
2
As the government points out, the district court judge likely did
not require payment of restitution because Knutsen had already
provided full restitution before entry of the judgment.
4 No. 04-4048
United States to Norway. The BIA affirmed the IJ’s deci-
sion, without opinion, and Knutsen now appeals.
II. ANALYSIS
A. Jurisdiction and Standard of Review
Our jurisdiction in this case is limited by the INA, which
precludes judicial review of any final order of removal
against an alien who is removable by reason of having
committed an aggravated felony. 8 U.S.C. §§ 1252 (a)(2)(C),
1227 (a)(2)(A)(iii) (2000). This jurisdiction-stripping provi-
sion, however, does not limit judicial review of “questions of
law raised upon a petition for review.” 8 U.S.C. § 1252(a)(2)(D); see also Gattem v. Gonzales, 412 F.3d 758, 762-63
(7th Cir. 2005) (noting that the recent REAL ID Act of 2005
provides the court with jurisdiction to review questions of
law). Furthermore, this Court retains the authority to
assess its own jurisdiction: “[w]hen judicial review depends
on a particular fact or legal conclusion, then a court may
determine whether that condition exists.” Yang v. INS, 109
F.3d 1185, 1192 (7th Cir. 1997). Consequently, we have
jurisdiction to determine whether Knutsen has been
convicted of an offense involving fraud or deceit, with losses
greater than $10,000. Id.; see also Lara-Ruiz v. INS, 241
F.3d 934, 938-39 (7th Cir. 2001).
We review this question of law de novo, but will defer
to the agency’s interpretation of the INA if the intent of
Congress is unclear on a particular issue and the agency’s
interpretation is reasonable. Borca v. INS, 77 F.3d 210, 214
(7th Cir. 1996). If, however, the intent of Congress is clear,
both this Court and the agency must give effect to that
legislative intent. Chevron U.S.A., Inc. v. Natural Res. Def.
Counsel, Inc., 467 U.S. 837, 842-43 (1984). Where the BIA
affirms without opinion, we directly review the decision of
the IJ. Hysi v. Gonzales, 411 F.3d 847, 852 (7th Cir. 2005).
No. 04-4048 5
B. The Indictment Did Not Allege a Single Fraudu-
lent Scheme that Encompassed the Acts Alleged
in Counts One and Two.
Under the INA, “[a]ny alien who is convicted of an
aggravated felony at any time after admission is
deportable.” 8 U.S.C. § 1227 (a)(2)(A)(iii). An “aggravated
felony” includes any “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) (2000). Knutsen does not dispute
that he was convicted of an offense involving “fraud or
deceit.” Instead, his sole argument is that his offense of
conviction is not an aggravated felony under the INA
because he pled guilty solely to Count One, which involved
a $7,350 loss, which was below the $10,000 threshold.
Knutsen argues that the additional $12,000-plus in losses
stemming from Count Two cannot be added to the losses
from Count One because he was not convicted of any of the
fraudulent acts alleged in Count Two, as the government
dismissed Count Two as part of Knutsen’s plea bargain.
Knutsen’s argument is supported by the plain and
unambiguous language of the statute, which predicates
removal on a convicted offense resulting in losses greater
than $10,000. 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1101 (a)(43)
(M)(I); see also Khalayleh, 287 F.3d at 980 (finding the
operative language of the pertinent INA provisions unam-
biguous). This plain language forecloses inclusion of
losses stemming from unconvicted offenses, and, as we
explain below, should have terminated Knutsen’s re-
moval proceeding at the very outset.
The IJ, however, did not stop with the statutory language.
Instead, after correctly determining that this circuit had not
yet addressed whether unconvicted fraudulent conduct can
be used in the calculation of loss amounts under the
pertinent provisions of the INA, the IJ turned to the Tenth
Circuit’s decision in Khalayleh v. INS, 287 F.3d 978 (10th
6 No. 04-4048
Cir. 2002), as well as the Ninth Circuit’s decision in Chang
v. INS, 307 F.3d 1185 (9th Cir. 2002). Although both these
cases are instructive, neither supports the IJ’s decision
here. To the contrary, a precise reading of these cases
compels the opposite result.
In Khalayleh, a resident-alien petitioner was charged
with bank fraud based on a check-kiting scheme, in which
the petitioner knowingly wrote several insufficient-funds
checks drawn on various accounts at several banks.
Khalayleh, 287 F.3d at 979. The indictment had four counts,
with each count representing a different fraudulent check.
Id. Thus, the separate counts were essentially mirror
images of one another, and merely segmented the compo-
nent acts of a larger fraudulent scheme. The petitioner pled
guilty to a single count, which carried a loss of $9,308,
although he agreed to provide total restitution in the
amount of $24,324.03. Id. When the government sought
removal under the INA, the petitioner argued that he fell
outside of the INA provisions for an “aggravated felony”
because his offense of conviction involved a loss under
$10,000. Id. at 979-80. The Tenth Circuit disagreed, and
held that there was “no ambiguity regarding the scope of
the offense to which Petitioner pleaded.” Id. at 980. Rather,
the indictment alleged a single scheme to defraud that
encompassed “a number of checks,” and, therefore, the
“offense of conviction” was the entire scheme. Id. As a
result, the Tenth Circuit concluded that the proper total
loss calculation should have included losses from all four
counts. Id.In the IJ’s view, the Khalayleh case determined the
outcome here. Khalayleh, however, is readily distinguish-
able. Specifically, the Tenth Circuit’s decision depended
entirely on an integral fact that is missing here: namely, an
overarching fraudulent scheme that encompassed the
individual counts in the indictment. Indeed, the Tenth
Circuit fully recognized the importance of connecting all the
No. 04-4048 7
counts in the indictment under a single scheme, and noted
that had the counts in the indictment recited discrete and
separate frauds the result would have been different:
[Defendant] reads the indictment as if each count
alleged a discrete fraud involving a single check. If
that were how the indictment had been written, his
contention might have merit. In that circumstance,
even if a plea agreement gave the district court
authority to order restitution with respect to all
four checks in the indictment, perhaps only
the check in the count to which the defendant
pleaded could properly be considered in determin-
ing the amount of loss for purposes of the definition
of aggravated felony.
Khalayleh, 287 F.3d at 980 (citations omitted). Thus, rather
than divorcing the INA’s loss requirement from the convic-
tion requirement, the Khalayleh court did precisely the
opposite: it affirmed the statutory prerequisite of a convic-
tion by determining the nature of the convicted offense and
which losses could be connected to this convicted offense.
Rather than narrowly focusing on this crucial predicate
determination of a single fraudulent scheme, the IJ instead
appears to have focused on the Tenth Circuit’s passing
acknowledgment that the petitioner agreed to pay the
amount of “actual loss,” which was greater than $10,000.
Noting that Knutsen had similarly stipulated that the total
loss from his conduct was greater than $10,000, the IJ then
determined that this greater amount controlled. This
analysis, however, is inverted because it relies on a pur-
ported loss amount to determine the offense of conviction.
The proper analytic framework requires an initial, precise
determination of the offense of conviction. It is only after
this initial determination that loss amounts can be calcu-
lated.
Even if we agreed with the Tenth Circuit’s analysis that
the calculation of a total loss amount under Section 237
8 No. 04-4048
of the INA could include losses from unconvicted counts
that are encompassed by an overall fraudulent scheme, the
IJ’s decision could not stand because Knutsen’s indictment
here lacks any allegation of a single overarching scheme. To
the contrary, each count in the indictment pertains to a
separate and distinct fraudulent scheme involving different
time periods and different types of fraudulent acts. For
instance, Count One addressed acts occurring from January
to early-July 1995, whereas Count Two addressed acts
occurring only during September 1995. More importantly,
the conduct alleged in each count is substantively different.
Count One alleged that Knutsen stole directly from
Firstar’s petty cash and/or operating accounts, and misap-
propriated a customer’s check. Therefore, these acts
depended on Knutsen’s role as an employee of the bank and
his position of trust. In contrast, Count Two alleged a
check-kiting scheme in which Knutsen wrote a variety of
overdrawn checks to several personal checking accounts.
Not only are these acts of a different nature than the acts
alleged in Count One, but they also depended on Knutsen’s
role as a customer of Firstar, rather than as an employee.3
In addition to the plain language in the indictment, case
law in this circuit confirms that Counts One and Two
cannot be read as component parts of a single fraudulent
scheme. For instance, in examining whether multiple
crimes are part of “a common scheme or plan” for purposes
of sentencing, this Court has held that “crimes are part of a
single common scheme or plan only if: (1) they were jointly
planned; or (2) one crime entails the commission of the
other.” United States v. Brown, 209 F.3d 1020, 1023 (7th
Cir. 2000) (citations omitted). “The test is one of singularity,
3
Although Knutsen, of course, may have relied on insider
information gleaned from his employment at the bank to capital-
ize on his check-kiting scheme, the indictment is silent on this
issue.
No. 04-4048 9
not similarity.” United States v. Joy, 192 F.3d 761, 771 (7th
Cir. 1999).
Here, the government argues that the acts in Counts One
and Two are part of a common scheme because, aside from
involving the same victim, they involved an “obvious
common purpose—to obtain money for petitioner’s own
ends.” But this fact is not enough to constitute a single
fraudulent scheme because virtually every monetary
fraud involves obtaining money for one’s “own ends.”
Moreover, unity of victims, by itself, does not create a
common scheme, particularly when the indictment is devoid
of any allegation of a unitary fraudulent scheme tying
together the charges. So, unlike the circumstances
in Khalayleh, it cannot be said that Knutsen’s plea to Count
One’s charges was tantamount to a plea to the separate
scheme alleged in Count Two.
The Ninth Circuit’s decision in Chang is instructive, but
does not support the government’s position. Chang v. INS,
307 F.3d 1185. In Chang, a resident-alien petitioner
was charged with fourteen counts of bank fraud. Id. at
1187-88. Like the indictment in Khalayleh, each count
corresponded to a single “bad check” written by the peti-
tioner. Id. The petitioner pled guilty to a single count.
Significantly, the plea agreement explicitly stated that “the
defendant and the United States agree that the offense in
Count Seven to which the defendant is pleading guilty
involves a loss to the victim of $605.30,” which the Ninth
Circuit noted was “remarkably” similar to the language
used by Congress in § 1101(a)(43)(M)(i). Id. at 1190.
Elsewhere in the plea agreement, however, the petitioner
agreed to pay restitution in the range of $20,000 to $40,000.
Id. at 1188.
After the government moved for removal under the
INA, the BIA determined that the petitioner’s overall
fraudulent conduct resulted in losses greater than $10,000,
10 No. 04-4048
as evidenced by his agreement to pay restitution in excess
of $20,000.4 The Ninth Circuit reversed, holding that the
plea agreement’s specification of a $605 loss-to-victim
amount controlled. See id. at 1191. Although the Ninth
Circuit acknowledged that the indictment at issue in Chang
could have been read as alleging a single fraudulent
scheme, like the one in Khalalyeh, it held that the “plea
agreement narrows the scope of the indictment,” and
therefore the loss amount specified in the plea agreement
controlled. Id.
The government seeks to limit Chang’s holding to situa-
tions where a plea agreement contains the same type of
specific, statute-tracking language pertaining to loss
amounts. This is an excessively narrow reading. Chang does
not stand for the proposition that a plea agreement must
contain such talismanic phrases to prohibit inclusion of loss
amounts from additional, unconvicted offenses. Rather, the
Ninth Circuit simply noted that the clear language in the
plea agreement made it abundantly clear that the govern-
ment and the petitioner had explicitly agreed on the
governing loss amount. It may be that such a high level of
clarity is particularly important in circumstances like
Khalayleh and Chang, where an indictment could be read
as alleging a single scheme that encompassed all the
individual counts. But that is not the case here—the record
is devoid of any allegations of a fraudulent scheme uniting
Counts One and Two. Moreover, Knutsen’s plea agreement
is not vague on the pertinent loss amounts: Knutsen
unmistakably pled guilty only to Count One, and paragraph
5 of the plea agreement plainly documented that loss at
$7,350.
Chang instead supports the basic and sensible proposition
that courts should strive to honor the contractual agree-
4
The district court in Chang ordered over $32,000 in restitution.
No. 04-4048 11
ment reached between a defendant and the government.
And there are good policy reasons for this. For instance, as
the Chang court noted, allowing the government to circum-
vent the plain terms of a plea agreement “would surely lead
to sandbagging of many non-citizen criminal defendants.”
Id. at 1192. Indeed, uncertainty on whether the loss
amounts specified in a plea agreement will control in
subsequent removal proceedings does not benefit either
party. Defendants may be less willing to enter into plea
agreements in light of the uncertainty of their effect in any
future immigration proceedings. As a result, the govern-
ment may be forced to expend unnecessary time and
resources litigating and appealing cases that otherwise
could have been resolved through a plea agreement. The
better result here, and one consistent with the statute, is
that the court should focus narrowly on the loss amounts
that are particularly tethered to convicted counts alone.
C. Knutsen’s “Relevant Conduct” Losses Cannot Be
Used to Calculate Total Losses Under the INA.
The government also argues that Knutsen’s stipulation in
his plea agreement pertaining to other “relevant conduct”
for sentencing effectively conceded that the total loss
amount of his “fraudulent scheme” exceeded $10,000.
Setting aside the fact that neither the indictment nor the
plea agreement even allege a single “fraudulent scheme,”
the government is mixing apples and oranges here. In his
plea agreement, Knutsen stipulated that the acts alleged in
Count Two were “relevant conduct” for purposes of sentenc-
ing. He also conceded, again for purposes of sentencing, that
the “total loss from the offense of conviction and relevant
conduct exceeded $20,000.” (emphasis added). These
stipulations were listed in a separate paragraph from the
one in which Knutsen identified the conduct and losses to
which he was pleading guilty. Therefore, the plea agree-
12 No. 04-4048
ment plainly distinguished between losses related to the
“offense of conviction,” and those related to “relevant
conduct.”
This bifurcation of losses between an “offense of convic-
tion” and “relevant conduct” is consistent with the INA’s
implicit distinction between convicted and unconvicted
offenses. Cf. 8 U.S.C. § 1227(a)(2)(A)(iii). In addition, the
government provides no authority indicating that Con-
gress intended to import “relevant conduct” losses into
this statute. Indeed, the authority cited by the parties on
this issue suggests the opposite:
To adopt the government’s approach would divorce
the $10,000 loss requirement from the conviction
requirement because relevant conduct for sentenc-
ing purposes need not be admitted, charged in the
indictment, or proven to a jury in order to be used
to impose a restitution order or an enhanced sen-
tence.
Chang, 307 F.3d at 1190 (citations omitted).
As a final note, the government also contends that
this Court must accord deference to the IJ’s interpreta-
tion of the INA. This requirement of deference, however,
is limited to where the statute is ambiguous and the
agency’s interpretation is reasonable. Borca, 77 F.3d at 214.
As described above, neither condition is met here. See
Khalayleh, 287 F.3d at 980 (holding that Chevron deference
to agency interpretation was not required “because there is
no ambiguity with respect to the meaning of the statutory
language”).
III. CONCLUSION
For the foregoing reasons, we GRANT Knutsen’s Petition
for Review, VACATE the removal order of the IJ dated
No. 04-4048 13
September 23, 2003, and REMAND for proceedings consistent
with this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-22-05