Opinion
98 CR 1238-03 (SAS).
August 10, 2006
Appearances
Plaintiff (Pro Se): Imran Shaikh FDC Oakdale Oakdale, Louisiana
For the Government: Julian J. Moore Assistant United States Attorney One St. Andrew's Plaza New York, New York.
MEMORANDUM OPINION AND ORDER
On June 20, 2002, defendant Imran Shaikh was sentenced to six months in custody and, as a condition of his three-year period of supervised release, was ordered to pay $4,292,555.90 in restitution. Now, over four years later, Shaikh moves to modify the terms of his supervised release and redact the Judgment in a Criminal Case. In actuality, Shaikh is attempting to avoid deportation by collaterally attacking his restitution order, having failed to challenge the order on direct appeal. For the following reasons, defendant's motion is denied.
Shaikh is currently facing loss of his permanent resident status and permanent deportation from the United States following his conviction for an "aggravated felony." In particular, Shaikh is subject to removal because he was convicted of an offense that "involves fraud or deceit in which the loss to the victim or victims exceeds $10,000." Shaikh therefore requests that this Court reduce the amount of restitution ordered as a condition of supervised release to $9,900, in order to avoid the statutory definition of "aggravated felony." In considering this request, the Court must address the following questions: (1) what was the source of the $4,292,555.90 figure; and (2) should the amount be reduced to less than $10,000 in order to help Shaikh avoid removal?
The loss amount of $4,292,555.90 is found in the Presentence Report prepared by the Probation Department in advance of sentencing. At sentencing, defendant accepted this loss amount as evidenced by the following colloquy:
THE COURT: The figure I am working with is $4,292,555.90.
[AUSA] STRANG: I think in light of the fact that Mr. Aziz was involved in virtually the entire portion of the scheme, that that restitution amount is accurate, or as accurate as we can be. So it is the government's position that that is the loss amount figure and the restitution figure.
MR. SANDDACK: I think that is an appropriate loss amount.
* * *
THE COURT: Mr. Shaikh is responsible for a loss of $4,292,555.90, as set forth in the presentence report.
Shaikh was referred to as Mr. Aziz during the sentencing proceedings.
William A. Sanddack represented Shaikh at his sentencing.
6/20/02 Sentencing Transcript ("Tr.") at 3.
Given that the loss amount was not included in either the Indictment or the plea agreement, it was appropriate for this Court to use the figure in the Presentence Report, agreed to by the Government and the defendant, in setting the amount of restitution owed by Shaikh.
Cf. Abreu-Reyes v. INS, 292 F.3d 1029, 1034 (9th Cir. 2002) ("[A]dmitting the evidence of the amount of loss to the victim contained in the presentence report was not fundamentally unfair, and the IJ properly relied on the pre-sentence report to determine Abreu-Reyes's removability."); Chang v. INS, 307 F.3d 1185, 1192 (9th Cir. 2002) (" Abreu-Reyes concluded that the INS may rely on a PSR to determine the loss to the victim when other evidence in the record, i.e., the judgment of conviction, does not provide a loss figure.").
The next question is whether the amount of restitution ordered, $4,292,555.90, should be reduced to $9,900 so that Shaikh's conviction will not be considered an aggravated felony for immigration purposes. This question was recently addressed by the Third Circuit in Munroe v. Ashcroft. In Munroe, the defendant challenged a decision of the Board of Immigration Appeals ("BIA") finding him removable because of a state law fraud conviction in which the loss to the victims exceeded $10,000. The state court granted defendant's motion to reduce the total amount of restitution to $9,999 even though it was apparent that "the motion was not based on a redetermination of the amount of loss caused by the crimes but was intended to alter the effect of the conviction for immigration purposes." The BIA, however, held that the reduction in restitution was "irrelevant" given that the defendant pled guilty to an indictment which alleged a loss exceeding $10,000.
See Tr. at 9 ("restitution in the amount of $4,292,555.90 is mandatory").
353 F.3d 225 (3d Cir. 2003).
See id. at 226.
Id. at 226-27.
See id. at 227.
The Third Circuit affirmed the district court's denial of defendant's habeas petition seeking relief from deportation. In so doing, the court noted that "the amendment of the judgment simply changed the amount of restitution; it did not involve a state-court finding as to the amount of loss." According to the Third Circuit,
Id.
[t]he amount of restitution ordered as a result of a conviction may be helpful to a court's inquiry into the amount of loss to the victim if the plea agreement or indictment is unclear as to the loss suffered. But when the amount of restitution is not based on a finding as to the amount of the loss but is instead intended solely to affect the defendant's immigration status, the amount of restitution is not controlling.
Id.
The court also expressed the following concerns regarding the separation of powers:
When a court vacates an otherwise final and valid conviction on equitable grounds merely to avoid the immigration-law consequences of the conviction, it usurps Congress's plenary power to set the terms and conditions of American citizenship and the executive's discretion to administer the immigration laws.
Id. at 227-28 (quoting Reneria-Gonzalez v. INS, 322 F.3d 804, 812 (5th Cir. 2003)).
Because there has not been a substantive re-determination of the loss amount chargeable to Shaikh, this Court will not reduce the amount of restitution ordered in order to manipulate the immigration laws of the United States. Defendant's motion is therefore denied. The Clerk of the Court is directed to close this motion (Document # 294).
SO ORDERED: