NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a0134n.06 No. 09-4577 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

RAMANI

SRI PI L L A, Petitioner,

v. ERI C H. HOL DER, J R., Attorney Gene ral, Respondents. ) ) ) ) ) ) ) ) ) ) ) ON PETI TI ON FOR REVI EW OF AN ORDER OF THE BO ARD OF I MMI GRATI ON APPEAL S

Be fore : BO GGS and KETHL EDGE, Circuit J udg es; and COL L I ER, Chief District J udg e. * KETHL EDGE, Circuit J udg e. Ramani Pill a, a native and citizen of I ndia, petition s for revie w of an order of the Boa rd of I mmigra tion Appea ls finding her remova ble as an alien who has committed an “ag g rava ted felony ,” as define d by 8 U.S.C. § 1227(a) (2)( A)(iii)

. W e deny the petition. I

. Pill a was a leg al perma

nent resident of the United States when she pled g uilty to ly ing to the FB I , in violation of 18 U.S.C. § 1001. The fac ts of the case have been reco u n t ed i n d et ail by the district court in Pill a’s rela ted criminal proce eding s. Suffice it to say t h at P illa, then an assistant profe ssor at C ase W est ern Reserve University , repor ted t o the uni versity and the FB I that she had

The Honora

ble Curtis L

. Colli er, Chief United States District J udg e for the Easter n District * of Tenne ssee, sitting by

desig nation.No. 09-4577

Pilla v. Holder

rec eived four piece s of hate mail in her office

. She later admitted to the FB I that she had written and planted the ha te mail herse lf. Pill a was ultimately char g ed with making fra udulent and false statements in violation of 18 U.S.C. §§ 1001-02. The I nformation ag ainst Pil la stated in re levant par t: COUNT 1

. . . 3. Fr om on or about Dec ember 19, 2006 t o on or about Fe bruar y 28, 2007

. . . Def endant perpe trated a hoax on [C ase Western] and the FB I by knowing ly and willfully making the follo wi ng materia l false statements to ag ents of the Fe dera l Bur eau of I nvestig ation (“F BI ”) alleg ing that, beca use of her et h n i c orig in and her g ender , she had be en the victim of a series of hate c rimes. (1) On or about J anuar

y 23, 2007, Def

endant repor

ted to the FB I that on Aug ust 28, 2006, November 16, 2006, and J anuar y 16, 2007, s h e had rec eived threa tening hate mail in her office at [C ase Western]. When asked by an FB I ag ent who might have sent her the letters, she named three possible suspects, all of whom wer e [C ase Western] employ ee s . S h e further stated that the suspects we re motivated in pa rt by her r ace and g ender

. (2) On or about Fe bruar

y 24, 2007, Def

endant repor

ted to the FB I that ear lier in the day she had discove red a fourth thre atening

hate letter

on the floor of her of fice at [Case Western]. (3) On or about Fe bruar

y 28, 2007, Def

endant, when being interviewe d by an FB I ag ent about the above letters, stated that she believed the sender s of the hate mail descr ibed above wer e reta l i at ing ag ainst her for (1) making a complaint to a [C ase Western] hotline alleg ing discrimination and (2) filing a complaint with the Equal E mploy ment Opportunity Commi ssion ag ainst [C ase Wester

n] alleging discrimination. 4. At the time Def

endant made the statements descr ibed above, she knew they wer e false in that she had prepa red the threa tening hate mail herse lf and had delivere d the letters to her self. The I nformation further stated that the hoax descr ibed above cost the FBI $5,830 and cost Case Western a

pproxi mately

$80,000 to investiga te.

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Pilla v. Holder Pill a did not enter into a writ ten plea ag ree ment. I nstead, she pled g uilty to an orally modified version of Count 1 that substitut ed “Feb ru ar y 24, 2007” for “De cembe r 19, 2006” in Parag raph 3 and omitted Parag raph 3, Subparag raph (1). Thus, althoug h Pill a did not object to the g overnme nt’s fac tual basis for the plea—whic h contained detailed informa tion relating to all four letters—she pled g uilty only to the char g es rela ting to the fourth letter. The district court sentenc ed Pill a to six months’ incar cer ation and order ed restituti o n o f ab o u t $66,000. I n her sentenc ing memorandum, P illa conce ded that her actions cause d more than $10,000 bu t l es s t h an $30,000 in losses. I n September 2008, Pill a was char g ed with being remova ble as an ag g rava ted felon under 8 U.S.C. § 1227(a) (2)( A)(iii). That subsection provi des that “[a]ny alien who is convicted of an ag g rava ted felony at any time afte r admission is deporta ble.” I n her immigra tion proce eding s, Pill a arg ued that her offe nse did not constitute an ag g rava ted felony

. The immigra

tion judge reje cted the arg ument beca

use P illa’s conviction “involve[ d] fra ud o r d ec eit in which the loss to the vi ctim or victims exceed[ed] $10,000,” as require d for an ag g rava ted fe l o ny . See 8 U.S.C. § 1101(a) (43)( M)(i). The immigra tion judg e there fore order ed Pill a remove d to I ndia. The Boa rd of I mmigra tion Appea ls ag ree d an d d i smissed Pill a’s appea l. Pill a then petitioned this court for revie w. She has since been r emoved to I ndia. I I

. Pill a arg ues t h at h er co nduct did not constitute an ag g rava ted felony for immigra tion purposes. We revie w this question of law de novo. See P atel v. Ashcroft , 401 F.3d 400, 407 (6th Cir. 2005). -3-No. 09-4577

Pilla v. Holder Pill a pled g uilty to violating 18 U.S.C. § 1001, which prohibits, in rele vant part, “knowing ly and willfully

. . . mak[ing] any materia lly false, fictitious, or fra udulent statement or repr esenta tion” in m att ers within the jurisdiction of the fede ral g overnme nt. See id. § 1001(a) (2). To satisfy the rele vant definition of “ag g rava ted felony ,” Pill a’s conviction under § 1001 must be “an offe nse that

. . . involves fra

ud or dec eit in which the loss to the victim or victims e x cee ds $10,000.” 8 U.S.C. § 1101(a) (43)( M)(i). Pill a arg ues that her conviction does not meet this definition beca use her misstatements did not i nvolve fra ud and beca

use she did not cause her victims a loss of more than $10,000. We addre ss eac h of her arg uments in turn. First, Pill a contends that she was convicted of making false, not fra udulent, statements to the FB I

. But the definition of “ag g rava ted felony ” in cl u d es offe nses involving “fr aud or dece it .” Id. (empha sis ad d ed ). “D eceit” is not define d in the I mmigra tion and Nationality Act, so circ uit
courts apply the term’s common meaning when i nterpre ting § 1101(a) (43)( M)(i): “the act of intentionally g iving a false impression.” See Valansi v. Ashcroft , 278 F.3d 203, 209 (3d Cir. 2002) (quoting Bla ck’s L aw Dictionary 413 (7th ed. 1999)); see also Patel v. Mukase y , 526 F.3d 800, 802 (5th C i r. 2008). Knowing ly and willfully making a false statement to the FB I under 18 U.S.C. § 1001(a) (2) e asily

falls within this definition, s o Pill a’s a rg ument fails. Next, Pilla a

rg ues that the “only

possible victim” of her c rime wa s the FB I , so the rele vant loss is that experience d by the FB I —$5,830. But “victim” likewise is not define d in § 1001; and the

common definitions of the term are much broade r than Pill a admits. I n tort law, for example, any one fore seea bly harme d by neg lige nt c onduct is g ener ally considere d a victim. See generally Palsgraf v. Long Island R.R. Co. , 162 N.E. 99 (N.Y . 1928). And in cr iminal law, defe ndants may be liable -4-No. 09-4577

Pilla v. Holder for deaths that occur during the commission of inhere ntly dang e r o u s felonies—r eg ardle ss of whether the victims wer e intended or anticipated—unde r the doctrine of felony murder. See generally Tison v. Arizona , 481 U.S. 137 (1987). We need not compre hensively define “victim” t o d ecide this case . For the term surely includes situations wher e the defe ndant actua lly intends to harm a person or entity

. Her e, Pill a intended to harm Case Western, and moreove r it was fore seea ble that an investiga tion of her dece it would cost Case Western substantial time and money

. Cf. United States v. Hildebrandt , 961 F.2d 116, 119 (8th Cir. 1992) (holding that third parties wer e victims for sentenc ing purposes wher e the defe ndant made false statements about the parties’ income to the I RS, trig g ering an investiga tion). Case Western wa s a victim of Pilla’s dece it in any leg al or mora l sense of the term. Since the FB I and Case Western are both victims, we may consider their combined losses in deter mining whether Pill a’s offe nse cause d a loss of more than $10,000. We evalua te “loss” under § 1101(a) (43)( M)(i) by looking to “the specific circ u ms ta n c e s s u r r o u n d in g a n o f f e n d e r ’s commission of a fra ud and dece it crime on a specific occa sion,” including “sente ncing -re lated materia l” such as restitution order s and sentenc ing stipul a tions. Nijhaw an v. Holder , 129 S. Ct. 2294, 2302-03 (2009). Her e, the sentenc ing- rela ted materia l includes a restitu t i o n order of more than $66,000 and a sentenc ing mem o ra n d um in which Pill a admitted that “an appropr iate estimate of the total loss

cause d by the crime to which [she] has enter ed her g uilty plea exceeds $10, 000, but is less than $30,000.” These docume nts establish by clea r and convincing evidenc e that Pill a’s victims lost

more than $10,000. See id. at 2303 (f in d in g d e f e n dant’s stipulation and sentenc ing court’s restitution order established loss by

clea r and c onvincing evidenc e).

-5-No. 09-4577

Pilla v. Holder Pill a contends, howeve r, that we cannot consider Case Western’s losses beca use they wer e not sufficie ntly rela ted to the convicted offe nse of ly ing to the FB I

. The amount of loss “must be tied
to the specific counts co vere d by the conviction.” Id. I n the absenc e of a written plea ag ree ment specify ing losses, the Supreme Court has sug g ested that a restitution order and sentenc ing stipu la tion

are adequa tely tied to the o ff en s e o f conviction and sufficie nt to establish losses if there is no conflicting evidenc e. Id. We have su ch an o rder and st ipulation here , and P illa does not prese nt conflicting evidenc e. I nstead, she reiter ates her belief that the FB I is the only victim of her c rime,

so only FB I losses are adequately tied to the convicti o n . As discussed above, this arg ument is meritless. Pill a also arg

ues that h er t ri al counsel was ineffe ctive for admitting that rele vant losses exceede d $10,000. She did not prese nt this arg ument to the Boa rd, howeve r, so we lack jurisdiction to reviewit. See Lin v. Holde r , 565 F.3d 971, 978 ( 6th Cir. 2009). The pe tition for reviewis denied.

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