OPINION OF THE COURT
NIJHAWAN V. HOLDER
557 U. S. ____ (2009)
SUPREME COURT OF THE UNITED STATES
NO. 08-495
MANOJ NIJHAWAN, PETITIONER
v. ERIC H.
HOLDER, Jr., ATTORNEY GENERAL
on writ of certiorari to the united states court of
appeals for the third circuit
[June 15, 2009]
Justice Breyer delivered the
opinion of the Court.
Federal immigration law provides
that any “alien who is convicted of an
aggravated felony
at any time after admission is deportable.” 8 U. S. C.
§1227(a)(2)(A)(iii) (emphasis added). A related statute defines
“aggravated felony” in terms of a set of listed offenses that
includes “an offense that . . . involves fraud or deceit
in
which the loss to the victim or victims exceeds $10,000.”
§1101(a)(43)(M)(i) (emphasis added). See Appendix A. The question
before us is whether the italicized language refers to an element
of the fraud or deceit “offense” as set forth in the particular
fraud or deceit statute defining the offense of which the alien was
previously convicted. If so, then in order to determine whether a
prior conviction is for the kind of offense described, the
immigration judge must look to the criminal fraud or deceit statute
to see whether it contains a monetary threshold of $10,000 or more.
See
Taylor v.
United States,
495 U. S. 575 (1990) (so
interpreting the Armed Career Criminal Act)
. We conclude,
however, that the italicized language does not refer to an element
of the fraud or deceit crime. Rather it refers to the particular
circumstances in which an offender committed a (more broadly
defined) fraud or deceit crime on a particular occasion.
I
Petitioner, an alien, immigrated
to the United States in 1985. In 2002 he was indicted for
conspiring to commit mail fraud, wire fraud, bank fraud, and money
laundering. 18 U. S. C. §§371, 1341, 1343, 1344, 1956(h). A
jury found him guilty. But because none of these statutes requires
a finding of any particular amount of victim loss, the jury made no
finding about the amount of the loss. At sentencing petitioner
stipulated that the loss exceeded $100 million. The court then
imposed a sentence of 41 months in prison and required restitution
of $683 million.
In 2005 the Government, claiming
that petitioner had been convicted of an “aggravated felony,”
sought to remove him from the United States. The Immigration Judge
found that petitioner’s conviction was for crimes of fraud and
deceit; that the sentencing stipulation and restitution order
showed that the victims’ loss exceeded $10,000; and that
petitioner’s conviction consequently fell within the immigration
statute’s “aggravated felony” definition. See 8 U. S. C.
§§1101(a)(43)(M)(i), (U) (including within the definition of
“aggravated felony” any “attempt or conspiracy to commit” a listed
“offense”). The Board of Immigration Appeals agreed. App. to Pet.
for Cert. 44a–51a. So did the Third Circuit. 523 F. 3d 387
(2008). The Third Circuit noted that the statutes of conviction
were silent as to amounts, but, in its view, the determination of
loss amounts for “aggravated felony” purposes “requires an inquiry
into the underlying facts of the case.”
Id., at 396
(internal quotation marks omitted).
The Courts of Appeals have come to different
conclusions as to whether the $10,000 threshold in subparagraph
(M)(i) refers to an element of a fraud statute or to the factual
circumstances surrounding commission of the crime on a specific
occasion. Compare
Conteh v.
Gonzales, 461
F. 3d 45, 55 (CA1 2006) (fact-based approach); 523 F. 3d
387 (same) (case below);
Arguelles-Olivares v.
Mukasey, 526 F. 3d 171, 178 (CA5 2008) (same), with
Dulal-Whiteway v.
United States Dept. of
Homeland Security, 501 F. 3d 116, 131 (CA2 2007)
(definitional approach);
Kawashima v.
Mukasey,
530 F. 3d 1111, 1117 (CA9 2008) (same);
Obasohan v.
United States Atty. Gen., 479 F. 3d 785, 791 (CA11
2007) (same). We granted certiorari to decide the question.
II
The interpretive difficulty
before us reflects the linguistic fact that in ordinary speech
words such as “crime,” “felony, “offense,” and the like sometimes
refer to a generic crime, say, the crime of fraud or theft in
general, and sometimes refer to the specific acts in which an
offender engaged on a specific occasion, say,
the fraud
that the defendant planned and executed last month. See
Chambers v.
United States, 555 U. S. ___, ___
(2009) (slip op., at 3). The question here, as we have said, is
whether the italicized statutory words “offense that involves fraud
or deceit
in which the loss to the . . . victims exceeds
$10,000” should be interpreted in the first sense (which we
shall call “categorical”),
i.e., as referring to a generic
crime, or in the second sense (which we shall call
“circumstance-specific”), as referring to the specific way in which
an offender committed the crime on a specific occasion. If the
first, we must look to the statute defining the offense to
determine whether it has an appropriate monetary threshold; if the
second, we must look to the facts and circumstances underlying an
offender’s conviction.
A
The basic argument favoring the
first—
i.e., the “generic” or “categorical”—interpretation
rests upon
Taylor, Chambers, and
James
v.
United States,
550 U. S. 192
(2007)
. Those cases concerned the Armed Career Criminal
Act (ACCA), a statute that enhances the sentence imposed upon
certain firearm-law offenders who also have three prior convictions
for “a violent felony.” 18 U. S. C. §924(e). See Appendix B,
infra. ACCA defines “violent felony” to include, first,
felonies with elements that involve the use of physical force
against another; second, felonies that amount to “burglary, arson,
or extortion” or that involve the use of explosives; and third,
felonies that “otherwise involv[e] conduct that presents a serious
potential risk of physical injury to another.” §924(e)(2)(B).
In
Taylor and
James we held that ACCA’s language read naturally uses the
word “felony” to refer to a generic crime as
generally
committed.
Chambers,
supra, at ___ (slip op., at
3) (discussing
Taylor, 495 U. S., at 602);
James,
supra, at 201–202. The Court noted that such an
interpretation of the statute avoids “the practical difficulty of
trying to ascertain” in a later proceeding, “perhaps from a paper
record” containing only a citation (say, by number) to a statute
and a guilty plea, “whether the [offender’s] prior crime . . . did
or did not involve,” say, violence.
Chambers,
supra, at ___ (slip op., at 3).
Thus in
James, referring to
Taylor, we made clear that courts must use the
“categorical method” to determine whether a conviction for
“attempted burglary” was a conviction for a crime that, in ACCA’s
language, “involved conduct that presents a serious potential risk
of physical injury to another.” §924(e)(2)(B)(ii). That method
required the court to “examine, not the unsuccessful burglary the
defendant attempted on a particular occasion, but the generic crime
of attempted burglary.”
Chambers,
supra, at (slip
op., at 3) (discussing
James,
supra, at
204–206).
We also noted that the categorical method is
not always easy to apply. That is because sometimes a separately
numbered subsection of a criminal statute will refer to several
different crimes, each described separately. And it can happen that
some of these crimes involve violence while others do not. A single
Massachusetts statute section entitled “Breaking and Entering at
Night,” for example, criminalizes breaking into a “building, ship,
vessel or vehicle.” Mass. Gen. Laws, ch. 266, §16 (West 2006).
In such an instance, we have said, a court must determine whether
an offender’s prior conviction was for the violent, rather than the
nonviolent, break-ins that this single five-word phrase describes
(
e.g., breaking into a building rather than into a
vessel), by examining “the indictment or information and jury
instructions,”
Taylor,
supra, at 602, or, if a
guilty plea is at issue, by examining the plea agreement, plea
colloquy or “some comparable judicial record” of the factual basis
for the plea.
Shepard v.
United States,
544 U. S. 13, 26
(2005).
Petitioner argues that we should interpret the
subsection of the “aggravated felony” statute before us as
requiring use of this same “categorical” approach. He says that the
statute’s language, read naturally as in
Taylor, refers to
a generic kind of crime, not a crime as committed on a particular
occasion. He adds that here, as in
Taylor, such a reading
avoids the practical difficulty of determining the nature of prior
conduct from what may be a brief paper record, perhaps noting only
a statutory section number and a guilty plea; or, if there is a
more extensive record, combing through that record for evidence of
underlying conduct. Also, the categorical approach, since it covers
only criminal statutes with a relevant monetary threshold, not only
provides assurance of a finding on the point, but also assures that
the defendant had an opportunity to present evidence about the
amount of loss.
B
Despite petitioner’s arguments,
we conclude that the “fraud and deceit” provision before us calls
for a “circumstance-specific,” not a “categorical,” interpretation.
The “aggravated felony” statute of which it is a part differs in
general from ACCA, the statute at issue in
Taylor. And the
“fraud and deceit” provision differs specifically from ACCA’s
provisions.
1
Consider, first, ACCA in general.
That statute defines the “violent” felonies it covers to include
“burglary, arson, or extortion” and “crime[s]” that have “as an
element” the use or threatened use of force. 18 U. S. C.
§§924(e)(2) (B)(i)–(ii). This language refers directly to generic
crimes. The statute, however, contains other, more ambiguous
language, covering “crime[s]” that “
involv[e] conduct that
presents a serious potential risk of physical injury to another.”
Ibid. (emphasis added). While this language poses greater
interpretive difficulty, the Court held that it too refers to
crimes as generically defined.
James,
supra, at
202.
Now compare the “aggravated
felony” statute before us. 8 U. S. C. §1101(a)(43). We concede
that it resembles ACCA in certain respects. The “aggravated felony”
statute lists several of its “offenses” in language that must refer
to generic crimes. Subparagraph (A), for example, lists “murder,
rape, or sexual abuse of a minor.” See,
e.g.,
Estrada-Espinoza v.
Mukasey, 546 F. 3d 1147,
1152 (CA9 2008) (en banc) (applying the categorical approach to
“sexual abuse”);
Singh v.
Ashcroft, 383
F. 3d 144, 164 (CA3 2004) (same);
Santos v.
Gonzales, 436 F. 3d 323, 324 (CA2 2005)
(per
curiam) (same). Subparagraph (B) lists “illicit trafficking in
a controlled substance.” See
Gousse v.
Ashcroft,
339 F. 3d 91, 95–96 (CA2 2003) (applying categorical
approach);
Fernandez v.
Mukasey, 544 F. 3d
862, 871–872 (CA7 2008) (same);
Steele v.
Blackman, 236 F. 3d 130, 136 (CA3 2001) (same). And
subparagraph (C) lists “illicit trafficking in firearms or
destructive devices.” Other sections refer specifically to an
“offense described in” a particular section of the Federal Criminal
Code. See,
e.g., subparagraphs (E), (H), (I), (J),
(L).
More importantly, however, the “aggravated
felony” statute differs from ACCA in that it lists certain other
“offenses” using language that almost certainly does not refer to
generic crimes but refers to specific circumstances. For example,
subparagraph (P), after referring to “an offense” that amounts to
“falsely making, forging, counterfeiting, mutilating, or altering a
passport,” adds, “
except in the case of a first offense for
which the alien … committed the offense for the purpose of
assisting . . . the alien’s spouse, child, or parent … to violate a
provision of this chapter” (emphasis added). The language
about (for example) “forging … passport[s]” may well refer to a
generic crime, but the italicized exception cannot possibly refer
to a generic crime. That is because there is no such generic crime;
there is no criminal statute that contains any such exception. Thus
if the provision is to have any meaning at all, the exception must
refer to the particular circumstances in which an offender
committed the crime on a particular occasion. See also subparagraph
(N) (similar exception).
The statute has other provisions that contain
qualifying language that certainly seems to call for
circumstance-specific application. Subparagraph (K)(ii), for
example, lists “offense[s] . . . described in section 2421, 2422,
or 2423 of title 18 (relating to transportation for the purpose of
prostitution)
if committed for commercial advantage”
(emphasis added). Of the three specifically listed criminal
statutory sections only one subsection (namely, §2423(d)) says
anything about
commercial advantage. Thus, unless the
“commercial advantage” language calls for circumstance-specific
application, the statute’s explicit references to §§2421 and 2422
would be pointless. But see
Gertsenshteyn v.
United
States Dept. of Justice, 544 F. 3d 137, 144–145 (CA2
2008).
Subparagraph (M)(ii) provides yet another
example. It refers to an offense “described in section 7201 of
title 26 (relating to tax evasion)
in which the revenue loss to
the Government exceeds $10,000” (emphasis added). There is no
offense “described in section 7201 of title 26” that has a specific
loss amount as an element. Again, unless the “revenue loss”
language calls for circumstance-specific application, the
tax-evasion provision would be pointless.
The upshot is that the “aggravated felony”
statute, unlike ACCA, contains some language that refers to generic
crimes and some language that almost certainly refers to the
specific circumstances in which a crime was committed. The question
before us then is to which category subparagraph (M)(i)
belongs.
2
Subparagraph (M)(i) refers to “an
offense that . . . involves fraud or deceit
in which the loss
to the victim or victims exceeds $10,000” (emphasis added).
The language of the provision is consistent with a
circumstance-specific approach. The words “in which” (which modify
“offense”) can refer to the conduct involved “
in” the
commission of the offense of conviction, rather than to the
elements
of the offense. Moreover, subparagraph (M)(i)
appears just prior to subparagraph (M)(ii), the internal revenue
provision we have just discussed, and it is identical in structure
to that provision. Where, as here, Congress uses similar statutory
language and similar statutory structure in two adjoining
provisions, it normally intends similar interpretations.
IBP,
Inc. v.
Alvarez,
546 U. S. 21, 34
(2005).
Moreover, to apply a categorical
approach here would leave subparagraph (M)(i) with little, if any,
meaningful application. We have found no widely applicable federal
fraud statute that contains a relevant monetary loss threshold.
See,
e.g., 18 U. S. C. §§1341 (mail fraud), 1343
(wire fraud), 1344 (bank fraud), 371 (conspiracy to defraud the
United States), 666 (theft in federally funded programs), 1028
(fraud in connection with identification documents), 1029 (fraud in
connection with access devices), 1030 (fraud in connection with
computers), 1347 (health care fraud), and 1348 (securities fraud).
Petitioner has found only three federal fraud statutes that do so,
and those three contain thresholds not of $10,000, but of $100,000
or $1 million, §§668 (theft by fraud of an artwork worth $100,000
or more), 1031(a) (contract fraud against the United States where
the contract is worth at least $1 million), and 1039(d) (providing
enhanced penalties for fraud in obtaining telephone records, where
the scheme involves more than $100,000). Why would Congress intend
subparagraph (M)(i) to apply to only these three federal statutes,
and then choose a monetary threshold that, on its face, would apply
to other, nonexistent statutes as well?
We recognize, as petitioner argues, that
Congress might have intended subparagraph (M)(i) to apply almost
exclusively to those who violate certain state fraud and deceit
statutes. So we have examined state law. See Appendix C,
infra. We have found, however, that in 1996, when Congress
added the $10,000 threshold in subparagraph (M)(i), see Illegal
Immigration Reform and Immigrant Responsibility Act §321(a)(7), 110
Stat. 3009–628, 29 States had no major fraud or deceit statute with
any relevant monetary threshold. In 13 of the remaining 21 States,
fraud and deceit statutes contain relevant monetary thresholds but
with amounts significantly higher than $10,000, leaving only 8
States with statutes in respect to which subparagraph (M)(i)’s
$10,000 threshold, as categorically interpreted, would have full
effect. We do not believe Congress would have intended (M)(i) to
apply in so limited and so haphazard a manner. Cf.
United
States v.
Hayes, 555 U. S. ___, ___ (2009) (slip op.,
at 10–11) (reaching similar conclusion for similar reason in
respect to a statute referring to crimes involving “domestic
violence”).
Petitioner next points to 8 U. S. C.
§1326, which criminalizes illegal entry after removal and imposes a
higher maximum sentence when an alien’s removal was “subsequent to
a conviction for commission of an aggravated felony.” §1326(b)(2).
Petitioner says that a circumstance-specific approach to
subparagraph (M)(i) could create potential constitutional problems
in a subsequent criminal prosecution under that statute, because
loss amount would not have been found beyond a reasonable doubt in
the prior criminal proceeding. The Government, however, stated in
its brief and at oral argument that the later jury, during the
illegal reentry trial, would have to find loss amount beyond a
reasonable doubt, Brief for Respondent 49–50; Tr. of Oral Arg.
39–40, eliminating any constitutional concern. Cf.
Hayes,
supra, at ___ (slip op., at 10).
We conclude that Congress did not intend
subparagraph (M)(i)’s monetary threshold to be applied
categorically,
i.e., to only those fraud and deceit crimes
generically defined to include that threshold. Rather, the monetary
threshold applies to the specific circumstances surrounding an
offender’s commission of a fraud and deceit crime on a specific
occasion.
III
Petitioner, as an alternative
argument, says that we should nonetheless borrow from
Taylor what that case called a “modified categorical
approach.” He says that, for reasons of fairness, we should insist
that a jury verdict, or a judge-approved equivalent, embody a
determination that the loss involved in a prior fraud or deceit
conviction amounted to at least $10,000. To determine whether that
is so, petitioner says, the subsequent immigration court applying
subparagraph (M)(i) should examine only charging documents, jury
instructions, and any special jury finding (if one has been
requested). If there was a trial but no jury, the subsequent court
should examine the equivalent judge-made findings. If there was a
guilty plea (and no trial), the subsequent court should examine the
written plea documents or the plea colloquy. To authorize any
broader examination of the prior proceedings, petitioner says,
would impose an unreasonable administrative burden on immigration
judges and would unfairly permit him to be deported on the basis of
circumstances that were not before
judicially determined
to have been present and which he may not have had an opportunity,
prior to conviction, to dispute.
We agree with petitioner that the
statute foresees the use of fundamentally fair procedures,
including procedures that give an alien a fair opportunity to
dispute a Government claim that a prior conviction involved a fraud
with the relevant loss to victims. But we do not agree that
fairness requires the evidentiary limitations he proposes.
For one thing, we have found nothing in prior
law that so limits the immigration court.
Taylor,
James, and
Shepard, the cases that developed the
evidentiary list to which petitioner points, developed that list
for a very different purpose, namely that of determining which
statutory phrase (contained within a statutory provision that
covers several different generic crimes) covered a prior
conviction. See
supra, at 5;
Taylor, 495 U. S.,
at 602;
Shepard, 544 U. S., at 26. For another,
petitioner’s proposal itself can prove impractical insofar as it
requires obtaining from a jury a special verdict on a fact that
(given our Part II determination) is not an element of the
offense.
Further, a deportation proceeding is a civil
proceeding in which the Government does not have to prove its claim
“beyond a reasonable doubt.” At the same time the evidence that the
Government offers must meet a “clear and convincing” standard. 8 U.
S. C. §1229a(c)(3)(A). And, as the Government points out, the
“loss” must “be tied to the specific counts covered by the
conviction.” Brief for Respondent 44; see,
e.g.,
Alaka v.
Attorney General of United States, 456
F. 3d 88, 107 (CA3 2006) (loss amount must be tethered to
offense of conviction; amount cannot be based on acquitted or
dismissed counts or general conduct);
Knutsen v.
Gonzales, 429 F. 3d 733, 739–740 (CA7 2005) (same).
And the Government adds that the “sole purpose” of the “aggravated
felony” inquiry “is to ascertain the nature of a prior conviction;
it is not an invitation to relitigate the conviction itself.” Brief
for Respondent 44 (internal quotation marks omitted). Finally, the
Board of Immigration Appeals, too, has recognized that immigration
judges must assess findings made at sentencing “with an eye to what
losses are covered and to the burden of proof employed.”
In re Babaisakov, 24 I. & N. Dec. 306,
319 (2007).
These considerations, taken together, mean
that petitioner and those in similar circumstances have at least
one and possibly two opportunities to contest the amount of loss,
the first at the earlier sentencing and the second at the
deportation hearing itself. They also mean that, since the
Government must show the amount of loss by clear and convincing
evidence, uncertainties caused by the passage of time are likely to
count in the alien’s favor.
We can find nothing unfair about the
immigration judge’s having here relied upon earlier
sentencing-related material. The defendant’s own stipulation,
produced for sentencing purposes, shows that the conviction
involved losses considerably greater than $10,000. The court’s
restitution order shows the same. In the absence of any conflicting
evidence (and petitioner mentions none), this evidence is clear and
convincing.
The Court of Appeals concluded that
petitioner’s prior federal conviction consequently falls within the
scope of subparagraph (M)(i). And we affirm its judgment.
It is so ordered.
APPENDIXES
A
Section 101(a)(43) of the
Immigration and Nationality Act, as set forth in 8 U. S. C.
1101(a)(43), provides:
“The term ‘aggravated felony’ means—
“(A) murder, rape, or sexual abuse of a
minor;
“(B) illicit trafficking in a controlled
substance (as defined in section 802 of title 21), including a drug
trafficking crime (as defined in section 924(c) of title
18);
“(C) illicit trafficking in firearms or
destructive devices (as defined in section 921 of title 18) or in
explosive materials (as defined in section 841(c) of that
title);
“(D) an offense described in section 1956
of title 18 (relating to laundering of monetary instruments) or
section 1957 of that title (relating to engaging in monetary
transactions in property derived from specific unlawful activity)
if the amount of the funds exceeded $10,000;
“(E) an offense described in—
“(i) section 842(h) or
(i) of title 18, or section 844(d), (e), (f), (g), (h), or (i) of
that title (relating to explosive materials offenses);
“(ii) section 922(g)(1),
(2), (3), (4), or (5), (j), (n), (o), (p), or (r) or 924(b) or
(h) of title 18 (relating to firearms offenses); or
“(iii) section 5861 of title
26 (relating to firearms offenses);
“(F) a crime of violence (as defined in
section 16 of title 18, but not including a purely political
offense) for which the term of imprisonment at least one year;
“(G) a theft offense (including receipt of
stolen property) or burglary offense for which the term of
imprisonment at least one year;
“(H) an offense described in section 875, 876,
877, or 1202 of title 18 (relating to the demand for or receipt of
ransom);
“(I) an offense described in section 2251,
2251A, or 2252 of title 18 (relating to child pornography);
“(J) an offense described in section 1962 of
title 18 (relating to racketeer influenced corrupt organizations),
or an offense described in section 1084 (if it is a second or
subsequent offense) or 1955 of that title (relating to gambling
offenses), for which a sentence of one year imprisonment or more
may be imposed;
“(K) an offense that—
“(i) relates to the owning,
controlling, managing, or supervising of a prostitution
business;
“(ii) is described in
section 2421, 2422, or 2423 of title 18 (relating to transportation
for the purpose of prostitution) if committed for commercial
advantage; or
“(iii) is described in any
of sections 1581–1585 or 1588–1591 of title 18 (relating to
peonage, slavery, involuntary servitude, and trafficking in
persons);
“(L) an offense described in—
“(i) section 793 (relating
to gathering or transmitting national defense information), 798
(relating to disclosure of classified information), 2153 (relating
to sabotage) or 2381 or 2382 (relating to treason) of title 18;
“(ii) section 421 of title
50 (relating to protecting the identity of undercover intelligence
agents); or
“(iii) section 421 of title
50 (relating to protecting the identity of undercover agents);
“(M) an offense that—
“(i) involves fraud or
deceit in which the loss to the victim or victims exceeds $10,000;
or
“(ii) is described in
section 7201 of title 26 (relating to tax evasion) in which the
revenue loss to the Government exceeds $10,000;
“(N) an offense described in paragraph (1)(A)
or (2) of section 1324(a) of this title (relating to alien
smuggling), except in the case of a first offense for which the
alien has affirmatively shown that the alien committed the offense
for the purpose of assisting, abetting, or aiding only the alien's
spouse, child, or parent (and no other individual) to violate a
provision of this chapter
“(O) an offense described in section 1325(a)
or 1326 of this title committed by an alien who was previously
deported on the basis of a conviction for an offense described in
another subparagraph of this paragraph;
“(P) an offense (i) which either is falsely
making, forging, counterfeiting, mutilating, or altering a passport
or instrument in violation of section 1543 of title 18 or is
described in section 1546(a) of such title (relating to document
fraud) and (ii) for which the term of imprisonment is at least 12
months, except in the case of a first offense for which the alien
has affirmatively shown that the alien committed the offense for
the purpose of assisting, abetting, or aiding only the alien's
spouse, child, or parent (and no other individual) to violate a
provision of this chapter;
“(Q) an offense relating to a failure to
appear by a defendant for service of sentence if the underlying
offense is punishable by imprisonment for a term of 5 years or
more;
“(R) an offense relating to commercial
bribery, counterfeiting, forgery, or trafficking in vehicles the
identification numbers of which have been altered for which the
term of imprisonment is at least one year;
“(S) an offense relating to obstruction of
justice, perjury or subornation of perjury, or bribery of a
witness, for which the term of imprisonment is at least one
year;
“(T) an offense relating to a failure to
appear before a court pursuant to a court order to answer to or
dispose of a charge of a felony for which a sentence of 2 years’
imprisonment or more may be imposed; and
“(U) an attempt or conspiracy to commit an
offense described in this paragraph.
“The term applies to an offense described in this paragraph
whether in violation of Federal or State law and applies to such an
offense in violation of the law of a foreign country for which the
term of imprisonment was completed within the previous 15 years.
Notwithstanding any other provision of law (including any effective
date), the term applies regardless of whether the conviction was
entered before, on, or after September 30, 1996.” (Footnotes
omitted.)
B
Armed Career Criminal Act, 18 U.
S. C. 924(e), provides:
“(1) In the case of a person who
violates section 922(g) of this title and has three previous
convictions by any court referred to in section 922(g)(1) of this
title for a violent felony or a serious drug offense, or both,
committed on occasions different from one another, such person
shall be fined under this title and imprisoned not less than
fifteen years, and, notwithstanding any other provision of law, the
court shall not suspend the sentence of, or grant a probationary
sentence to, such person with respect to the conviction under
section 922(g).
“(2) As used in this subsection—
“(A) the term ‘serious drug
offense’ means—
“(i) an
offense under the Controlled Substances Act (21 U. S. C. 801
et seq.), the Controlled Substances Import and Export Act (21 U.
S. C. 951 et seq.), or chapter 705 of title 46, for which a
maximum term of imprisonment of ten years or more is prescribed by
law; or
“(ii) an
offense under State law, involving manufacturing, distributing, or
possessing with intent to manufacture or distribute, a controlled
substance (as defined in section 102 of the Controlled Substances
Act (21 U. S. C. 802)), for which a maximum term of
imprisonment of ten years or more is prescribed by law;
“(B) the term ‘violent
felony’ means any crime punishable by imprisonment for a term
exceeding one year, or any act of juvenile delinquency involving
the use or carrying of a firearm, knife, or destructive device that
would be punishable by imprisonment for such term if committed by
an adult, that—
“(i) has
as an element the use, attempted use, or threatened use of physical
force against the person of another; or
“(ii) is
burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk
of physical injury to another; and
“(C) the term ‘conviction’ includes a finding
that a person has committed an act of juvenile delinquency
involving a violent felony.”
C
We examined state statutes
involving fraud or deceit in effect in 1996, when Congress added
the $10,000 threshold in subparagraph (M)(i). See Illegal
Immigration Reform and Immigrant Responsibility Act of 1996,
§321(a)(7), 110 Stat. 3009–628. While perhaps questions could be
raised about whether certain of the statutes listed below involve
“fraud or deceit” as required by subparagraph (M)(i), we give
petitioner the benefit of any doubt and treat the statute as
relevant.
1
In 29 States plus the District of
Columbia, the main statutes in effect in 1996 involving fraud and
deceit either did not have any monetary threshold or set a
threshold lower than $10,000 even for the most serious grade of the
offense.
Alabama: see,
e.g., Ala. Code §§13A–8–2,
13A–8–3, 13A–9–14, 13A–9–14.1, 13A–9–46, 13A–9–47, 13A–9–73 (1996).
Arkansas: see,
e.g., Ark. Code Ann. §§5–36–103,
5–37–203, 5–37–204, 5–37–207, 5–37–211 (1996).
California:
see,
e.g., Cal. Penal Code Ann. §§484, 487, 502.7 (West
1996).
District of Columbia: see,
e.g.,
D. C. Code §§22–3821, 22–3823 (1996).
Georgia: see,
e.g., Ga. Code Ann. §§16–8–3, 16–8–12, 16–9–33 (1996).
Idaho: see,
e.g., Idaho Code §§18–2403, 18–2407
(Lexis 1996).
Kentucky: see,
e.g., Ky. Rev. Stat.
Ann. §514.040 (West 1996).
Louisiana: see,
e.g.,
La. Stat. Ann. §§14:67, 14:67.11, 14:70.1, 14:70.4, 14:71, 14:71.1
(West 1996).
Maryland: see,
e.g., Md. Ann. Code,
Art. 27, §§340, 342, 145, 230A, 230C, 230D (Lexis 1996).
Massachusetts: see,
e.g., Mass. Gen. Laws, ch.
266, §§30, 37C (West 1996).
Michigan: see,
e.g.,
Mich. Comp. Laws §§750.218, 750.271, 750.280, 750.219a, 750.356c
(West 1996).
Mississippi: see,
e.g., Miss. Code
Ann. §§97–19–21, 97–19–35, 97–19–39, 97–19–71, 97–19–83 (1996).
Missouri: see,
e.g., Mo. Rev. Stat. §§570.030,
570.120, 570.130, 570.180 (1996).
Montana: Mont. Code Ann.
§§45–6–301, 45–6–313, 45–6–315, 45–6–317 (1996).
Nebraska:
see,
e.g., Neb. Rev. Stat. Ann. §§28–512, 28–518, 28–631
(1996).
Nevada: see,
e.g., Nev. Rev. Stat.
§§205.0832, 205.0835, 205.370, 205.380 (1996).
New
Hampshire: see,
e.g., N. H. Rev. Stat. Ann.
§§637:4, 637:11, 638:5, 638:20 (1996).
North Carolina:
see,
e.g., N. C. Gen. Stat. Ann. §§14–100, 14–106,
14–113.13 (1996).
Oklahoma: see,
e.g., Okla.
Stat., Tit. 21, §§1451, 1462, 1541.1, 1541.2, 1541.3, 1541.4,
1550.2, 1662, 1663 (West 1996).
Pennsylvania: see,
e.g., 18 Pa. Cons. Stat. §§3903, 3922, 4110, 4111, 4117
(1996); but see §4105 (bad check statute amended 1996 to introduce
$75,000 threshold).
Rhode Island: see,
e.g.,
R. I. Gen. Laws §§11–18–6, 11–18–7, 11–18–8, 11–18–9, 11–41–4,
11–41–5, 11–41–29, 11–41–30 (1996).
South Carolina: see,
e.g., S. C. Code Ann. §16–13–240 (1996).
South
Dakota: see,
e.g., S. D. Codified Laws
§§22–30A–3, 22–30A–10, 22–30A–17 (1996).
Utah: see,
e.g., Utah Code Ann. §§76–6–405, 76–6–412, 76–6–521,
76–10–1801 (Lexis 1996).
Vermont: see,
e.g., Vt.
Stat. Ann., Tit. 13, §§2001, 2002, 2024, 2531, 2582 (1996).
Virginia: see,
e.g., Va. Code Ann. §§18.2–178,
18.2–95, 18.2–195 (Lexis 1996).
Washington: see,
e.g., Wash. Rev. Code §§9A.56.020, 9A.56.030 (1996).
West Virginia: see,
e.g., W. Va. Code Ann.
§61–3–24 (Lexis 1996).
Wisconsin: see,
e.g., Wis.
Stat. §§943.20, 943.395, 943.41 (1996).
Wyoming: see,
e.g., Wyo. Stat. Ann. §§6–3–407, 6–3–607, 6–3–802
(1996).
2
In 13 States, conviction under
the main fraud and deceit statutes in effect in 1996 could
categorically qualify under subparagraph (M)(i). But the relevant
monetary thresholds for these offenses—that is, the thresholds such
that conviction categorically would satisfy the monetary
requirement of subparagraph (M)(i)—were significantly higher than
$10,000. Additionally, a number of these States had statutes
targeted at particular kinds of fraud without any relevant monetary
threshold.
Alaska: see,
e.g., Alaska Stat.
§§11.46.120, 11.46.180 (1996) ($25,000); but see,
e.g.,
§11.46.285 (fraudulent use of a credit card, no relevant monetary
threshold).
Arizona: see,
e.g., Ariz. Rev. Stat.
Ann. §§13–1802 (West 1989), 13–2109 (West 2000) ($25,000); but see,
e.g., §§13–2103 (receipt of anything of value by
fraudulent use of a credit card), 13–2204 (defrauding secured
creditors), 13–2205 (defrauding judgment creditors), 13–2206 (West
1989) (fraud in insolvency), all with no relevant monetary
threshold.
Colorado: see,
e.g., Colo. Rev. Stat.
Ann. §18–4–401 (Supp. 1996) ($15,000), but see,
e.g.,
§§18–5–205 (fraud by check), 18–5–207 (1986) (purchase on credit to
defraud), both with no relevant monetary threshold.
Delaware: see,
e.g., Del. Code Ann., Tit. 11,
§§841, 843 (1995) ($50,000); but see,
e.g., §§903
(unlawful use of credit card), 913 (insurance fraud), 916 (home
improvement fraud), all with no relevant monetary threshold.
Hawaii: see,
e.g., Haw. Rev. Stat. §§708–830,
708–830.5 (Lexis 1994) ($20,000); but see,
e.g., §§708–873
(defrauding secured creditors), 708–8100 (fraudulent use of a
credit card), 708–8100.5 (fraudulent encoding of a credit card),
708–8103 (credit card fraud by a provider of goods or services),
all with no relevant monetary threshold.
Indiana: see,
e.g., Ind. Code §§35–43–4–1 (West 1993), 35–43–4–2
($100,000), 35–43–5–7.1 (West Supp. 1996) ($50,000); but see,
e.g., §§35–43–5–3 (deception), 35–43–5–4 (West 1993)
(insurance and credit card fraud), 35–43–5–7 (welfare fraud),
35–43–5–8 (fraud on financial institutions), all with no relevant
monetary threshold.
Kansas: see,
e.g., Kan. Stat.
Ann. §§21–3701 (1995), 21–3707 (Supp. 1996), 21–3729 (1995),
21–3846 (Supp. 1996) ($25,000).
Minnesota: see,
e.g., Minn. Stat. §609.52 (1996) ($35,000).
New
Jersey: see,
e.g., N. J. Stat. Ann. §§2C:20–2,
2C:20–4, 2C:21–13, 2C:21–17 (West 1995) ($75,000); but see,
e.g., §§2C:21–6 (credit cards), 2C:21–12 (defrauding
secured creditors), both without a relevant monetary threshold.
New Mexico: see,
e.g., N. M. Stat. Ann.
§§30–16–6, 30–33–13, 30–44–7, 30–50–4 (1996) ($20,000); but see,
e.g., §30–16–33 (credit card fraud, no relevant monetary
threshold).
New York: see,
e.g., N. Y. Penal
Law Ann. §§155.05 (West 1988), 155.40, 158.20 (West Supp. 1998),
176.25 ($50,000); but see,
e.g., §§190.65 (scheme to
defraud), 185.00 (fraud in insolvency), 185.05 (fraud involving
security interest), all with no relevant monetary threshold.
Ohio: see,
e.g., Ohio Rev. Code Ann. §§2913.02,
2913.11, 2913.21, 2913.40, 2913.45, 2913.47, 2913.48 (Lexis 1996)
($100,000).
Texas: see,
e.g., Tex. Penal Code
Ann. §§31.02 (West 1994), 31.03, 35.02 (West Supp. 2003) ($20,000);
but see,
e.g., §32.31 (credit card or debit card abuse, no
relevant monetary threshold).
3
In eight States, the main fraud
and deceit statutes in effect in 1996 had relevant monetary
thresholds of $10,000. However, a number of these States also had
statutes targeted at particular kinds of fraud without any relevant
monetary threshold.
Connecticut: see,
e.g., Conn.
Gen. Stat. §§53a–119, 53a–122 (1996); but see,
e.g.,
§§53a–128c, 53a–128i (credit card crimes, no relevant monetary
threshold).
Florida: see,
e.g., Fla. Stat.
§§812.012, 812.014 (1996); but see,
e.g., §§817.234
(insurance fraud), 817.61 (fraudulent use of credit cards) (1996),
both without a relevant monetary threshold.
Illinois: see,
e.g., Ill. Comp. Stat., ch. 720, §5/16–1 (West 1996); but
see,
e.g., §§5/17–6 (state benefits fraud), 5/17–9 (public
aid wire fraud), 5/17–10 (public aid mail fraud), 5/17–13
(fraudulent land sales), all without a relevant monetary threshold.
Iowa: see,
e.g., Iowa Code §§714.1, 714.2, 714.8,
714.9 (1996).
Maine: see,
e.g., Me. Rev. Stat.
Ann., Tit. 17A, §§354, 362 (1996); but see,
e.g., §§902
(defrauding a creditor), 908 (home repair fraud), both without
relevant monetary thresholds.
North Dakota: see,
e.g., N. D. Cent. Code Ann. §§12.1–23–02, 12.1–23–05
(1996).
Oregon: see,
e.g., Ore. Rev. Stat.
§§164.085, 164.057; but see,
e.g., §§165.055 (fraudulent
use of a credit card), 165.692, 165.990 (false claims for health
care payments), both without a relevant monetary threshold.
Tennessee: see,
e.g., Tenn. Code Ann. §39–14–101,
39–14–105, 39–14–118, 39–14–133 (1996).
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