Maria Arce Fuentes v. Loretta E. Lynch , 788 F.3d 1177 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA ARCE FUENTES, No. 11-73131
Petitioner,
Agency No.
v. A092-969-907
LORETTA E. LYNCH, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 3, 2015*
Pasadena, California
Filed June 10, 2015
Before: Harry Pregerson, Ferdinand F. Fernandez,
and Jacqueline H. Nguyen, Circuit Judges.
Per Curiam Opinion
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 ARCE FUENTES V. LYNCH
SUMMARY**
Immigration
The panel denied Maria Arce Fuentes’ petition for review
of the Board of Immigration Appeals’ decision finding that
her conviction for conspiracy to commit money laundering in
violation of 18 U.S.C. § 1956(h) qualified as an aggravated
felony because the amount of funds exceeded $10,000 as
required by 8 U.S.C. § 1101(a)(43)(D).
The panel held that the BIA correctly found that the
$10,000 monetary threshold refers to the “specific
circumstances” of a money laundering offense, as opposed to
an element of a generic crime, and that the BIA was thus not
limited to examining the language of the conviction under the
categorical approach but rather properly relied on the pre-
sentence report (PSR) to determine whether the threshold
amount was met.
The panel held that an overt act is not an element of a
money laundering conspiracy, and thus to sustain a
conviction under § 1956(h) one need not be proved. The
panel held that the BIA erred in relying on the indictment and
judgment to find that Arce conspired to launder more than
$10,000, but that the error was harmless because the BIA
properly relied on the PSR to find that she conspired to
launder more than that amount. The panel noted that it joined
the Second, Third, and Tenth Circuits in concluding that the
BIA’s reliance on a PSR in conducting the circumstance-
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ARCE FUENTES V. LYNCH 3
specific approach does not render a removal proceeding
fundamentally unfair.
COUNSEL
David B. Landry, San Diego, California, for Petitioner.
Gregory M. Kelch, Trial Attorney, Linda S. Wernery,
Assistant Director, Stuart F. Delery, Acting Assistant
Attorney General, Office of Immigration Litigation, United
States Department of Justice, Washington, D.C., for
Respondent.
OPINION
PER CURIAM:
Maria Arce Fuentes challenges the Board of Immigration
Appeals’ (“BIA”) finding that she was removable on the
ground that she was convicted of an aggravated felony.
Arce’s conviction for conspiracy to commit money
laundering in violation of 18 U.S.C. § 1956(h) qualifies as an
aggravated felony “if the amount of the funds exceeded
$10,000.” 8 U.S.C. § 1101(a)(43)(D). Following the
Supreme Court’s reasoning in Nijhawan v. Holder, 557 U.S.
29 (2009), we conclude that the BIA correctly found that the
$10,000 monetary threshold in 8 U.S.C. § 1101(a)(43)(D)
refers to the “specific circumstances” of a money laundering
offense as opposed to an element of a generic crime. Thus,
the BIA was not limited to the categorical approach of
examining the language of the statute of conviction, and
instead properly relied on the presentence report (“PSR”) to
4 ARCE FUENTES V. LYNCH
determine whether the $10,000 threshold amount was met.
We deny the petition for review.
I
Arce, a native and citizen of Mexico, became a lawful
permanent resident on December 1, 1990. In 2006, Arce was
indicted in the United States District Court for the District of
Puerto Rico. Count one charged Arce and 15 other
defendants with conspiracy to commit money laundering, in
violation of 18 U.S.C. § 1956(h). Arce and her co-
conspirators allegedly recruited others in a scheme to wire
proceeds of drug sales through Western Union locations
throughout San Juan. The wire transfers were in amounts less
than $10,000 to avoid transaction reporting requirements.
Count one of the indictment incorporated by reference the
remaining 74 substantive counts of money laundering in
violation of 18 U.S.C. § 1956(a). Particularly relevant here
are counts 17 through 21 of the indictment, which allege that
Arce, “together with other individuals, known and unknown
to the Grand Jury,” conducted five wire transfers totaling
approximately $25,000.
In 2007, pursuant to a plea agreement, Arce pled guilty to
count one of the indictment, the conspiracy charge, in
exchange for dismissal of the remaining counts against her by
the government. Citing the plea agreement, the PSR states
that the parties “agreed that an eight (8) level increase [in
offense level] is warranted . . . since the defendant laundered
more than $70,000.”
Based on this conviction, the government initiated
removal proceedings on August 14, 2008, alleging
removability under 8 U.S.C. § 1227(a)(2)(B)(i) for having
ARCE FUENTES V. LYNCH 5
been convicted of a controlled substance offense, and
8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an
aggravated felony, as defined in 8 U.S.C. §§ 1101(a)(43)(D)
and (a)(43)(U). Before the immigration judge (“IJ”), Arce
conceded the controlled substance offense conviction, but
contested the aggravated felony conviction on the ground that
there was no evidence that she laundered funds in excess of
$10,000.
After examining the indictment and the judgment of
conviction, the IJ concluded that Arce conspired to launder
money totaling more than $10,000, and had therefore been
convicted of an aggravated felony. In turn, the IJ found her
statutorily ineligible for cancellation of removal. The BIA
affirmed. Citing Nijhawan v. Holder, 557 U.S. 29 (2009), the
BIA found that the $10,000 monetary threshold was a specific
circumstance of a money laundering offense. Relying on the
indictment, the judgment indicating that Arce pled guilty to
count one, and the PSR, the BIA concluded that Arce was
involved in conspiring to launder more than $70,000, and was
therefore an aggravated felon. The BIA also affirmed the IJ’s
determination that Arce was ineligible for cancellation of
removal. This appeal followed.
II
We lack jurisdiction to review a final order of removal
against an alien who is removable based on an aggravated
felony conviction. Barragan-Lopez v. Holder, 705 F.3d
1112, 1114 (9th Cir. 2013) (citing 8 U.S.C. § 1252(a)(2)(C)).
However, we “retain jurisdiction to determine whether a
particular offense constitutes an aggravated felony.” Id. We
review such “purely legal questions . . . de novo.” Rendon v.
Mukasey, 520 F.3d 967, 971 (9th Cir. 2008). “Our review is
6 ARCE FUENTES V. LYNCH
confined to the BIA’s decision except to the extent the BIA
incorporated the IJ’s decision.” Li v. Holder, 656 F.3d 898,
900–01 (9th Cir. 2011), overruled on other grounds,
Abdisalan v. Holder, 774 F.3d 517 (9th Cir. 2014) (en banc).
III
The term “aggravated felony” is defined in the
Immigration and Nationality Act (“INA”) to include a money
laundering offense “described in section 1956 of Title 18 . . .
or section 1957 of that title . . . if the amount of the funds
exceeded $10,000,” 8 U.S.C. § 1101(a)(43)(D), or a
“conspiracy to commit [that] offense,” id. § 1101(a)(43)(U).
The INA’s monetary threshold amount refers to the specific
circumstances in which a money laundering offense was
committed, rather than a required element of the offense.
This conclusion is dictated by the Supreme Court’s decision
in Nijhawan v. Holder, 557 U.S. 29 (2009). There, the Court
considered similar language in the same subparagraph of the
INA, which states that an aggravated felony includes “an
offense that . . . involves fraud or deceit in which the loss to
the victim . . . exceeds $10,000.” Id. at 33–40 (discussing
8 U.S.C. § 1101(a)(43)(M)(i)). The Court approved a
“circumstance-specific,” fact-based approach that looks to the
facts underlying the conviction, rather than a “generic” or
“categorical” approach, to determine whether the alien was
convicted of an offense involving loss to the victim exceeding
$10,000. Id. The Court reasoned that the reference to a
$10,000 threshold must refer to a circumstance, rather than an
element of an offense, because the words “in which” suggest
a reference to circumstances of the offense, no “widely
applicable federal fraud statute . . . contains a relevant
monetary loss threshold,” and, at the time of the enactment of
the relevant section of the INA, only eight states had fraud or
ARCE FUENTES V. LYNCH 7
deceit statutes with a $10,000 loss threshold. Id. at 38–40.
The Court stated, “We do not believe Congress would have
intended [the definition of a crime involving fraud or deceit]
to apply in so limited and so haphazard a manner.” Id. at 40.
Similarly, here, we hold that the INA’s $10,000 threshold
for money laundering offenses refers to a specific
circumstance.1 The statute of conviction, 18 U.S.C. § 1956,
makes no reference to a $10,000 threshold, except in the
context of a requirement for “extraterritorial jurisdiction.” Id.§ 1956(f). Thus, if the INA’s reference to a $10,000
threshold described an element of a money laundering
offense, then the INA’s entire reference to 18 U.S.C. § 1956as constituting an aggravated felony would be nonsensical,
because 18 U.S.C. § 1956 contains no monetary threshold as
an element. See Nijhawan, 557 U.S. at 37, 40.
We recognize that 18 U.S.C. § 1957, which appears in the
same clause as § 1956, refers to engaging “in a monetary
transaction in criminally derived property of a value greater
than $10,000.” Even so, a conclusion that the $10,000
threshold for money laundering offenses refers to an element
of a generic offense, based solely on the threshold contained
in § 1957, would essentially read the INA’s reference to
§ 1956 out of the statute, thereby running afoul of the rule
that “a statute should not be construed so as to render any
provision of that statute meaningless or superfluous.” See
Beck v. Prupis, 529 U.S. 494, 506 (2000). We thus conclude
that the BIA correctly relied on the Supreme Court’s
reasoning in Nijhawan to find that the $10,000 threshold
1
Our conclusion is consistent with decisions of the Second and Third
Circuits. Varughese v. Holder, 629 F.3d 272, 274–75 (2d Cir. 2010);
Munez-Morales v. Atty. Gen., 379 F. App’x 210, 214–15 (3d Cir. 2010).
8 ARCE FUENTES V. LYNCH
amount is a specific circumstance of the offense of
conspiracy to commit money laundering.
IV
We now turn to whether the BIA correctly applied the
circumstance-specific approach to find that Arce is an
aggravated felon.
In Nijhawan, the Supreme Court rejected the argument
that an IJ should be limited to the set of documents
permissible in conducting the “modified categorical
approach.” 557 U.S. at 41. Instead, the Court held that the
procedures for determining whether the threshold amount has
been met should be “fundamentally fair,” and should “give an
alien a fair opportunity to dispute a Government claim”
regarding the relevant factual basis of a conviction. Id. The
Government must also meet a “clear and convincing”
standard in proving the specific circumstances of the offense.
Id. at 42. The Court allowed the immigration court’s use of
“earlier sentencing-related material” including “Petitioner’s
own stipulation” and a restitution order to determine the loss
amount by clear and convincing evidence. Id. at 42–43
(noting also that the alien presented no conflicting evidence
suggesting the loss amount was less than $10,000); see also
Kawashima v. Holder, 615 F.3d 1043, 1056 (9th Cir. 2010)
(noting that the “BIA is not limited to only those documents
which a court applying the modified categorical approach
may review,” and remanding to the BIA so that it could
determine, in the first instance, what evidence it may consider
under the Nijhawan standard).
Here, the BIA erred in relying on the indictment and
judgment as support for a finding that Arce conspired to
ARCE FUENTES V. LYNCH 9
launder more than $10,000. The BIA incorrectly considered
counts 17 through 21 of the indictment to support its finding
that Arce conspired to launder more than $10,000. The BIA
mistakenly determined that it could rely on counts 17 through
21 because they were incorporated by reference as overt acts
into count one, to which Arce pled guilty. In United States v.
Cazares, we reaffirmed that “allegations not necessary to be
proved for a conviction . . . are not admitted by a plea.”
121 F.3d 1241, 1247 (9th Cir. 1997). In Cazares, one of the
conspirators pled guilty to a count in an indictment charging
drug conspiracy and alleging overt acts including possession
of a gun. Id. at 1246. The government argued that the
defendant’s guilty plea to an indictment that alleged gun
possession as an overt act was sufficient to prove by a
prepondera§§nce of the evidence that the defendant had
possessed a gun and was thus subject to a two-level increase
in the offense level under the Guidelines. Id. However, a
guilty plea only “admits the facts constituting the elements of
the charge.” Id. And committing an overt act is not an
element of conspiracy under the drug conspiracy statute. Id.
(citing United States v. Shabani, 513 U.S. 10, 13 (1994)).
Thus, proof of an overt act is not required for a conviction
under the drug conspiracy statute. Id. Therefore, the district
court’s reliance on the overt act alleged in the indictment to
enhance the defendant’s sentence was improper because
“allegations not necessary to be proved for a conviction—in
this case the overt acts—are not admitted by a plea.” Id. at
1247.
Arce’s conspiracy statute of conviction similarly does not
require proof of an overt act. See Whitfield v. United States,
543 U.S. 209, 214 (2005) (“Because the text of § 1956(h)
does not expressly make the commission of an overt act an
element of the conspiracy offense, the Government need not
10 ARCE FUENTES V. LYNCH
prove an overt act to obtain a conviction.”). Since an overt
act is not an element of a money laundering conspiracy, the
same analysis in Cazares applies here. Thus, to sustain a
conviction under § 1956(h), an overt act need not be proved,
and overt acts alleged in a money laundering conspiracy
indictment are “not admitted by a plea.” Cazares, 121 F.3d
at 1247. For this reason, the BIA erred in using the overt acts
alleged in count one through the incorporation by reference
of counts 17 through 21 of the indictment to find that Arce
had necessarily conspired to launder more than $10,000. The
BIA’s reliance on these counts incorporated by reference was
not fundamentally fair and does not establish by clear and
convincing evidence, as required under Nijhawan to prove
specific circumstances, that Arce conspired to launder more
than $10,000.
This error was harmless, however, because the BIA
permissibly relied on the PSR to find, by clear and
convincing evidence, that Arce conspired to launder more
than $10,000, and is therefore an aggravated felon. See
Chowdhury v. INS, 249 F.3d 970, 972–74 (9th Cir. 2001)
(explaining that the relevant inquiry for (a)(43)(D) is the total
amount of funds laundered by the petitioner, as opposed to
the loss to a victim). First, it is undisputed that Arce pled
guilty to count one of the indictment, which charges a
conspiracy to commit money laundering. Second, the PSR
states that the plea agreement stipulated to an amount of
funds laundered of “more than $70,000.” Arce presented no
evidence contradicting the accuracy of these documents.
Arce challenges the BIA’s reliance on the PSR in
determining whether petitioner was convicted of an
aggravated felony. However, an IJ conducting the
circumstance-specific approach is not restricted to documents
ARCE FUENTES V. LYNCH 11
used for the modified categorical approach. See Kawashima,
615 F.3d at 1056. And the Supreme Court’s approving
reference in Nijhawan to the immigration court’s reliance on
“sentencing-related material,” 557 U.S. at 42, strongly
suggests that consideration of a PSR is appropriate. We
therefore join the Second, Third, and Tenth Circuits in
concluding that the BIA’s reliance on a PSR in conducting
the circumstance-specific approach does not render a removal
proceeding fundamentally unfair. See Polanco De Los
Angeles v. Holder, 543 F. App’x 26, 28 (2d Cir. 2013)
(holding that PSR is admissible in conducting circumstance-
specific approach); Kaplun v. Atty. Gen., 602 F.3d 260, 266
(3d Cir. 2010) (same); Hamilton v. Holder, 584 F.3d 1284,
1287–88 (10th Cir. 2009) (same).
V
The BIA did not err in concluding that the specific
circumstances of Arce’s conviction met the monetary
threshold of $10,000 or more, and she is therefore an
aggravated felon. It follows that the BIA also correctly found
her ineligible for cancellation of removal. See 8 U.S.C.
§ 1229b(a)(3). Finding no legal error, we lack jurisdiction to
review the BIA’s decision any further.
PETITION DENIED.