Tonino Solimene v. Attorney General United States

PS1-104 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-3492
___________
TONINO SOLIMENE,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A018-672-196)
Immigration Judge: Honorable Walter A. Durling
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 24, 2015
Before: RENDELL, GREENAWAY, JR. and SCIRICA, Circuit Judges
(Opinion filed: April 28, 2015)
___________
OPINION*
___________
PER CURIAM
Pro se petitioner Tonino Solimene petitions for review of the Board of
Immigration Appeals’ (“BIA”) final order of removal. We will deny the petition.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
I.
Solimene is a native and citizen of Italy who entered the United States as a lawful
permanent resident in 1969. Thereafter, he became the owner of T&S Trucking
Corporation (“T&S”), which delivered fuel to businesses throughout New York City.
From 2000 through July 2007, Solimene headed a “skimming” scheme that involved
T&S invoicing customers for full deliveries of heating oil but actually delivering a lesser
amount. T&S then sold the skimmed heating oil to other customers at below-market
prices in exchange for cash payments. Solimene used the payments for personal and
business expenses.
In April 2010, Solimene pleaded guilty in the United States District Court for the
Eastern District of New York to (1) embezzlement of interstate and foreign shipments of
heating oil in violation of 18 U.S.C. § 659, and (2) conspiracy to commit money
laundering in violation of 18 U.S.C. § 1956(a)(1). In June 2011, he was sentenced to 60
months’ imprisonment on each count, to be served concurrently. Solimene was also
fined $300,000 for the money laundering count and $250,000 for the embezzlement
count. Then, in September 2011, the District Court issued a final forfeiture order, which
stated that Solimene agreed to forfeit $7 million “as property which constitutes or is
derived from proceeds traceable to a violation of 18 U.S.C. § 1956 and/or as property
traceable thereto, and/or as substitute assets.” (A.R. 116.)
In 2013, the Department of Homeland Security initiated removal proceedings,
charging that Solimene was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) on three
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separate grounds. One of those grounds was having been convicted of an aggravated
felony as defined in 8 U.S.C. § 1101(a)(43)(D). Under that provision, an offense for
money laundering under 18 U.S.C. § 1956 constitutes an aggravated felony “if the
amount of the funds exceeded $ 10,000.” 8 U.S.C. § 1101(a)(43)(D). Solimene
conceded that he had pleaded guilty to money laundering; however, he denied that his
money laundering conviction was an aggravated felony, claiming that the Government
could not prove that the amount laundered exceeded $10,000. In February 2014, the
Immigration Judge (“IJ”) ordered Solimene removed, concluding that the Government
proved, by clear and convincing evidence, that his money laundering conviction was an
aggravated felony.
Solimene appealed to the BIA, stating that the sole issue on appeal was whether
the IJ erred in finding that the amount of funds laundered exceeded $10,000. 1 In July
2014, the BIA dismissed Solimene’s appeal. To determine the “amount of the funds”
involved in the underlying money laundering offense, the BIA used the “circumstance-
specific” analysis pursuant to Nijhawan v. Holder, 557 U.S. 29 (2009). The BIA also
determined that the “amount of the funds” referred to the amount of funds laundered in
connection with the offense, not “victim loss.” Relying on the indictment and the
1
Although Solimene (through counsel) stated that this was the “sole issue” on appeal to
the BIA, he also included in his opening brief an argument that his embezzlement
conviction did not qualify as an aggravated felony under 8 U.S.C. § 1101(a)(43)(G).
After the BIA rejected Solimene’s argument concerning the $10,000 threshold for money
laundering offenses, it stated that it was unnecessary to decide his remaining argument.
Because we agree with the BIA that the money laundering conviction constitutes an
aggravated felony for which Solimene is removable, we also need not consider his
arguments concerning the other charges of removability.
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forfeiture order, the BIA determined that there was no clear error in the IJ’s
determination that the amount of funds laundered by Solimene exceeded $10,000. The
BIA then rejected Solimene’s argument that the Government had failed to “establish a
sufficient connection between his convicted conduct and the ‘amount of the funds’
referred to in the indictment and the order of forfeiture.” (A.R. 5.) The BIA explained
that Solimene
was convicted after pleading guilty to both counts of a two-
count indictment alleging that he and his fellow conspirators
laundered the proceeds of unlawful heating oil sales valued at
approximately $25,000,000. Furthermore, as a matter of law
the sentencing court’s $7,000,000 consent order of forfeiture
could require [him] to forfeit only that property that was
involved in, or traceable to, the transactions through which he
violated 18 U.S.C. § 1956. Whatever the exact ‘amount of
the funds’ laundered, it is a fair inference, sufficient to meet
the clear and convincing evidence standard, that it plainly
exceeded the $10,000 threshold . . . .
(Id. (citation omitted).)
Solimene filed a timely petition for review, which the Government opposes.
II.
We generally have jurisdiction to review a final order of removal under 8 U.S.C. §
1252(a)(1). However, because the basis for Solimene’s removal is his conviction for an
aggravated felony, our jurisdiction is limited to reviewing colorable constitutional claims
or questions of law. See 8 U.S.C. § 1252(a)(2)(C)-(D); Pareja v. Att’y Gen., 615 F.3d
180, 186 (3d Cir. 2010). Whether a conviction constitutes an aggravated felony is a
question of law that we review de novo. See Singh v. Att’y Gen., 677 F.3d 503, 508 (3d
4
Cir. 2012).
Here, despite Solimene’s argument to the contrary, the BIA properly used the
“circumstance-specific” approach rather than the “formal categorical approach” (the
latter of which involves looking only to the elements of the offense) to determine whether
his money laundering conviction constituted an aggravated felony. In Nijhawan, the
Supreme Court considered 8 U.S.C. § 1101(a)(43)(M)(i), which defines “aggravated
felony” as an offense that “involves fraud or deceit in which the loss to the victim . . .
exceeds $ 10,000.” The Supreme Court explained that, when considering whether a
conviction qualified as an aggravated felony under subsection (M)(i), applying a
categorical approach would render that provision nearly meaningless because there were
few criminal fraud statutes that contained a monetary loss threshold as an element of the
offense. See 557 U.S. at 39-40. As a result, the Court held that the agency and the courts
should consider the specific circumstances of the alien’s conviction to determine whether
the crime involved a $10,000 loss to the victim. See id. at 40-42. Because the federal
money laundering statute also lacks a monetary amount as an element of the crime, we
see no reason to treat subsection (D) any differently than subsection (M)(i).2
Accordingly, we find no error in the agency’s decision to apply the “circumstance-
specific” approach in this case.
Solimene asserts that, even if the agency properly used the “circumstance-
2
Although subsection (D) does not contain the “in which” language contained in
subsection (M)(i), we have previously noted that subsection (D) contains “analogous
qualifying language.” Nijhawan v. Att’y Gen., 523 F.3d 387, 391 & n.2 (3d Cir. 2008),
aff’d, 557 U.S. 29 (2009).
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specific” approach, it improperly determined that the Government proved by clear and
convincing evidence that his money laundering conviction involved more than $10,000.
See 8 U.S.C. § 1229a(c)(3)(A) (requiring clear and convincing evidence that alien is
removable). We disagree. The forfeiture order, to which Solimene consented, stated that
he would forfeit $7 million in property that “constitutes or is derived from proceeds
traceable to a violation of 18 U.S.C. § 1956 and/or as property traceable thereto, and/or as
substitute assets.” (A.R. 116.) The phrase “traceable to” means that the property must
have “some nexus to the property ‘involved in’ the money laundering offense.” United
States v. Voigt, 89 F.3d 1050, 1087 (3d Cir. 1996). For example, if a defendant
receives $ 500,000 cash in a money laundering transaction and hides the
cash in his house, the government may seize that money as property
‘involved in’ the money laundering offense. If the defendant purchased a
$ 250,000 item with that money, the government may seek the remaining
cash as ‘involved in’ the offense, whereas the item purchased is subject to
forfeiture as property ‘traceable to’ property involved in the money
laundering offense.
Id. Here, the forfeiture order allowed the Government to seize $7 million worth of
property “traceable to” the money laundering offense. Under Voigt, that property (which
included cash, watches, and real property) thus had a nexus to the laundered money.
While the forfeiture order does not state that $7 million is the exact amount laundered,
that order was sufficient to prove by clear and convincing evidence that the amount of
funds laundered exceeded $10,000.
Accordingly, the agency did not err in concluding that Solimene had been
convicted of an aggravated felony under § 1101(a)(43)(D) and, therefore, was
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removable.3 In light of the above, we will deny Solimene’s petition for review. His
request for appointment of counsel is denied.
3
We have considered the remainder of Solimene’s arguments concerning whether the
Government met its burden of proof as to his removability, and conclude that they are
meritless.
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