United States Court of Appeals

Fifth Circuit



## FILED

July 25, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-61014

NYAKUNDI JOHN OMARI,

Petitioner,

versus

ALBERTO R. GONZALES,

U.S. ATTORNEY GENERAL,

Respondent.

Petition for Review of an Order from

the Board of Immigration Appeals

Before GARWOOD, SMITH and CLEMENT, Circuit Judges.

GARWOOD, Circuit Judge:

Nyakundi John Omari (Omari) petitions for review of an order

by the Board of Immigration Appeals (BIA) affirming the Immigration

Judge’s order that Omari be removed from the United States. We

hold that the record does not reflect that the prior conviction on

which the removal order was based was for an aggravated felony, and

we accordingly grant the petition for review, vacate the removal

order, and remand to the BIA.1 Conspiracy under 18 U.S.C. § 371 includes “conspir[ing] either to commit

any offense against the United States, or to defraud the United States, or any

agency thereof in any manner or for any purpose,” where “one or more of” those

so conspiring does “any act to effect the object of the conspiracy.” 18 U.S.C.

§ 371.

2 Facts and Proceedings Below

Omari is a native of Kenya who was admitted to the United

States in March 1990. In May 1998, he was convicted in Minnesota

state court for fi fth degree assault against his wife. In June

2001, he was co nvicted based on his guilty plea in the Eastern

District of Texas for conspiracy to commit interstate

transportation of stolen property, contrary to 18 U.S.C. §§ 371 and

2314. 1 Specifically, Omari pleaded guilty to Count One of a twocount indictment naming him and five other named co-conspirators as

well as “others known and unknown.”

Count One of the indictment includes a description of a scheme

in which one named co-conspirator (Lodhi) (and others known but

unnamed) “would burglarize travel agencies and steal blank airline

tickets,” and another named co-conspira tor (Barney) would create

forged airline tickets using passenger and destination information

provided by several named co-c onspirators, including Omari, and

that those co-conspirators would sell the stolen tickets through

travel agencies that they operated. Among the overt acts alleged

was that in May 1997, Lodhi and other unnamed known persons

“bur glarized Dimension Travel and stole 3,000 blank airline

tickets.” In addition to selling stolen airline tickets, Omari was2 Count two states that Omari and the other five persons named in count one

(and others known and unknown) “did unlawfully transport, transmit and transfer,

and cause to be transported, transmitted, and transferred in inte rstate and

foreign commerce, from Plano, Texas to the places indicated below, goods, wares,

and merchandise, to wit: airline tickets having an aggregate value of $5,000.00

or more, the said defendants then and there well knowing said goods, wares, and

merchandise to have been stolen and converted, all as more particularly set out

below.

. . .” The remainder of the count consists of the table of specific

airline tickets.

3 alleged to have traveled using some of the tickets. Of twenty-two

overt acts in furtherance of the conspiracy alleged in Count One,

four were allegedly committed by Omari, including three trips

allegedly taken using stolen airline tickets and one sale of two

stolen tickets. Count One specifically charges that Omari and five

named others (and “others kno wn and unknown”) “knowingly and

willfully conspired to commit the following crime against the

United States: interstate transportation of stolen, converted and

fraudulently ob tained property, in violation of Title 18, United

States Code, Section 2314.”

Count Two of the indictment charged the substantive offense of

interstate transportation of stolen property contrary to 18 U.S.C.

§ 2314. 2 The count consists in large part of an extensive table of

airline ticket numbers, with corr esponding dollar values, travel

dates, and destinations. Count Two was dismissed as to Omari when

he pleaded guilty to Count One.

As a result of his guilty plea, Omari was sentenced on Count

One to six months’ imprisonment, three ye ars’ probation, and3 It appears from our opinion in United States v. Onyiego

, 286 F.3d 249

(5th Cir. 2002), that three of Omari ’s co-defendants were convicted following

trial of counts one and two o f this same indictment, and we affirmed their

convictions and sentences (except for a minor modification as to the amount of

restitution ordered respecting one defendant). Our opinion there reflects that

the sentence of one of these co-defendants included 115 months ’ imprisonment,

another 24 months, and the third nine months.

4 Since March 2003, the deportation functions of the INS are with the Bureau

of Immigration and Customs Enforcement under the Department of Homeland Security.

5 8 U.S.C. § 1101(a)(43)(M) defines “aggravated fe lony” as including “an

offense that–(i) involves fraud or deceit in which the loss to the victim or

victims exceeds $10,000.” 8 U.S.C. § 1101(a)(43)(U) defines an “aggravated

felony” as including “an attempt or conspiracy to commit an offense described in

this paragraph.” The IJ apparently did not reach the other grounds of removal

alleged (two or more crimes of moral turpitude or a crime of domestic violence).

4 restitution of $16,366.48, for which he was jointly and severally

liable with two codefendants. 3

In October 2001, the Immi gration and Naturalization Service

(INS) 4 initiated deportation proceedings against Omari, alleging

that he was subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii)

as an alien convicted of an aggrava ted felony, under 8 U.S.C. §

1227(a)(2)(A)(ii) as an alien convicted of two or more crimes

involving moral turpitude, and under 8 U.S.C. § 1227(a)(2)(E)(i) as

an alien convicted of a crime of domestic violence. In March 2003,

the immigration ju dge (IJ) determined that Omari was subject to

removal as an ali en convicted of an aggravated felony, the

aggravated fe lony being a fraud offense as defined by 8 U.S.C. §

1101(a)(43)(M) and a conspiracy as defined by 8 U.S.C. §

1101(a)(43)(U). 5 The IJ also denied Omari’s application for

cancellation of removal under 8 U.S.C. § 1229b(a), determining that

Omari was statutorily ineligible for consideration for such relief6 Section 1229b(a) provides:

“(a) Cancellation of removal for certain permanent residents

The Attorney General may cancel removal in the case of an

alien who is in admissible or deportable from the United States if

the alien –

(1) has been an alien lawfully admitted for permanent

residence for not less than 5 years,

(2) has resided in the United States continuously for 7

years after having been admitted in any status, and

(3) has not been convicted of any aggravated felony.”

7 8 U.S.C. § 1252(a)(2)(C) provides in relevant part that “no court shall

have jurisdiction to review any final order of removal against an alien who is

removable by reason of having committed a criminal offense covered in section

. . . 1227(a)(2)(A)(iii) . . . of this title,” and 8 U.S.C. § 1227(a)(2)(A)(iii)

provides that “[a]ny alien who is convicted of an aggravated felony at any time

after admission is deportable.”

5 because of his aggravated felony conviction. 6 The IJ o rdered that

Omari be deported to Kenya. Omari appealed the decision to the

BIA, contending that his prior conviction was not for an aggravated

felony. The BIA affirmed without opinion.

Discussion

I. Jurisdiction and Standard of Review

Under 8 U.S.C. § 1252(a) (2)(C) this court does not have

jurisdiction to review the removal decision if Omari’s prior

conviction was an aggravated felony. 7 However, we do have

jurisdiction to determine our own jurisdiction, i.e.

, to determine

whether the conviction qualifies as an aggravated felony. LopezElia s v. Reno , 209 F.3d 788, 791 & n.3 (5th Cir. 2000). With

respect to determining whether a prior conviction falls within a

provision of the Immigration and Nationality Act (INA), we “accord

substantial deference to the BIA’s interpretation of the INA”

itself and definitions of phrases within it. S malley v. Ashcroft

,8 18 U.S.C. § 2314 provides in relevant part:

“Whoeve r transports, transmits, or transfers in interstate or

foreign commerce any goods, wares, merchandise, securities or money, of

the value of $ 5,000 or more, knowing the same to have been stolen,

converted or taken by fraud; or

Whoever, having devised or intending to devise any scheme or

artifice to defraud, or for obtaining money or property by means of false

or fraudulent pretenses, representations, or promises, transports or

causes to be transported, or induces any person or persons to travel in,

or to be transported in interstate or foreign commerce in the execution or

concealment of a sch eme or artifice to defraud that person or those

persons of money or property having a value of $5,000 or more; or

. . . . Shall be fined under this title or imprisoned not more than ten

years, or both.

. . . .”

6 354 F.3d 332, 335–36 (5th Cir. 2003) (internal quotation omitted).

We then review de novo whether the particular statute that the

prior conviction is under falls within the relevant INA definition.

Smalley , 254 F.3d at 336; Omagah v. Ashcroft , 288 F.3d 254, 258

(5th Cir. 2002).

II. Involving Fraud or Deceit

For Omari to have been convicted of an aggravated felony under

relevant provisions of 8 U.S.C. § 1101(a)(43)(M) and (U), his

conviction must be for an offense “involv[ing] fraud or deceit in

which the loss to the victim or victims exceeds $10,000," or for an

attempt or conspiracy to commit such an offense. 8 U.S.C. §§

1101(a)(43)(M), (U). The IJ’s opinion indicates that the

indictment and judgment for Omari’s conspiracy conviction made it

clear that Omari was convicted of conspiring to violate the second

paragraph of 18 U.S.C. § 2314, which the IJ found to be an offense

involving fraud or deceit. 8 Omari argues that the conspiracy

alleged in count one was to commit the offense denounced by the7

first paragraph of 18 U.S.C. § 2314, which does not necessarily

i nvolve fraud or deceit, and that he did not plead guilty to a

conspiracy to violate the second paragraph of section 2314.

Although neither the IJ nor the BIA defined “fraud or deceit,”

the BIA has argued in othe r cases that “fraud” and “fraud and

deceit” as appearing in 8 U.S.C. § 1101(a)(43)(M) should be used in

t heir commonly understood legal sense. S ee, e.g.

, Valansi v.

Ashcroft

, 278 F.3d 203, 209 (3d Cir. 2002). Black’s Law Dictionary

defines “fraud” as “a knowing misrepresentation of the truth or

concealment of a material fact to induce another to act to his or

her detriment,” and “deceit” as “the act of intentionally giving a

false impression.” B LACK ’ S L AW D ICTIONARY 413, 670 (7th ed. 1999).

In determining whether a prior conviction qualifies as an

aggravated felony (or meets other similar criteria for immigration

or sentence enhancement purposes), we employ a categorical approach

in which we look at the statute under which the alien was convicted

rather than at the particular underlying facts. Lopez-Elias , 209

F.3d at 791. When the aggravated felony provision uses “involves”

language, we inquire whether violation of the statute necessarily

entails the “involved” behavior. S ee United States v. Montgomery

,

402 F.3d 48 2, 486–88 (5th Cir. 2005) (for a prior conviction to

involve a serious potential risk of physical injury, violation of

the statute convicted under must necessarily entail a serious

p otential risk of physical injury). In the case of 8 U.S.C. §8

1101(a)(43)(M), we therefore consider whether violation of 18

U.S.C. § 2314 necessarily entails fraud or deceit.

The first five paragraphs of 18 U.S.C. § 2314 set out five

alternative ways that the statute can be violated. The first

paragraph describes violation by “whoever transports, transmits, or

transfers in interstate or foreign commerce any goods, wares,

merchandise, securities or money, of the value of $5,000 or more,

knowing the same to have been stolen, converted or taken by fraud.”

18 U.S.C. § 2314. Violation of this paragraph does not necessarily

entail fraud or deceit, since the paragraph can be violated by

transporting or transferring goods known to be stolen. For

example, the goods could be transferred to someone who knew they

were stolen, so that there would be no misrepresentation or deceit.

A conviction under 18 U.S.C. § 2314 is therefore not necessarily a

conviction for an offense involving fraud or deceit.

We recognize an exception to the categorical approach when a

statute is divisible into discrete subsections, violation of one or

more of which would in itself meet the criterion at issue. S ee

Smalley

, 354 F.3d at 336; Omagah

, 288 F.3d at 260; Hamdan v. United

States

, 98 F.3d 183, 187 (5th Cir. 1996) (all noting this exception

for the purpose of determining whether a conviction was for a crime

involving moral turpitude). If the statute is divisible, we look

to the record of conviction to determine whether the conviction was

necessarily for a particular subsection of the statute that meets9 The presentence report ordered by the district court indicates that there

was a written plea agreement, and Omari’s counsel stated at oral argument that

there was also a plea colloquy transcript, but neither the plea agreement nor any

of the plea colloquy transcript were in the record before the IJ or the BIA (nor

are they otherwise before us).

9 the criterion (here, that of involving fraud or deceit). In the

case of guilty plea convictions, the Supreme Court has held that

examination of the record of conviction for this purpose may

include consideration of the “charging doc u ment, written plea

agreement, transcript of plea colloquy, and any explicit factual

finding by the trial judge to which the defendant assented.”

Shepard v. United States , 125 S.Ct. 1254, 1257 (2005) (concerning

the assessment of a prior burglary conviction as a “violent felony”

for sentence enhancem ent purposes). Documents not of that kind,

including police reports and complaint applications, may not be

considered. Id.

In the instant appeal, there is no plea agreement or plea

colloquy transcript in the record of the immigration proceedings. 9

We therefore have only the indictment and the district court’s

j udgment to consider in determining whether Omari necessarily

pleaded guilty to a subsection of the statute involving fraud or

deceit. The judgment declared Omari guilty of violating 18 U.S.C.

§ 371 through “Conspi racy to Commit Interstate Transportation of

Stolen Property” as set out in Count One of the indictment. The

judgment therefore does not in itself indi cate that Omari was

necessarily found guilty of an offense involving fraud or deceit.10 Reference in the indictment to “stolen, converted and fraudulently

obtained propert y ,” as opposed to “stolen, converted or taken by fraud” as

recited in the statute, does not mean that Om a ri was necessarily convicted of

transferring fraudul ently obtained property. Indictments often allege

conjunctively elements that are disjunctive in the corresp onding statute, and

this does not require eith e r that the government prove all of the statutorily

disjunctive elements or that a defendant admit to all of the m when pleading

guilty. S ee Valansi

, 278 F.3d at 216 n.10 ; United States v. McCann , 465 F.2d

147, 162 (5th Cir. 1972).

11 If the tickets had been fraudulently obtained, Omari’s conviction for

knowingly transporting or transferring them might well have been a conviction for

an offense involving fraud or deceit. Whether an offense “involves” fraud is a

broader questi on than whether it c onstitutes fraud. C f. United States v.

Winbush

, 407 F.3d 703, 707–08 (5th Cir. 2005) (attempted possession of controlled

substance with intent to distribute is offense “involving . . . manufacturing,

distributing, or possessing with intent to manufacture or distribute, a

controlled substance,” and therefore a “serious drug offense”); R ichards v.

Ashcroft , 400 F.3d 125, 129–30 (2d Cir. 2005) (possession of forged instrument

with intent to defraud or deceive is offense “relating to” forgery, though not

actual forgery).

10 The specific crime charged in Count One of the indictment is

conspiracy “to commit

. . . interstate tr ansportation of stolen,

converted and fraudulently obtained property in violation of Title

18, United States Code, Section 2314.” This closely tracks the

language of the first paragraph of 18 U.S.C. § 2314, which does not

necessarily involve fraud or deceit, as noted above. 10 The scheme

as laid out in the indictment refers to stolen airline tickets, not

fraudulently obtained ones, so that nothing in the indictment

indicates that Omari pleaded guilty to transporting fraudulently

obtained goods. 11

The IJ concluded that Omari had been convicted of violating

the second pa ragraph of 18 U.S.C. § 2314, which does describe an

offense involving fraud (see note 8 supra ). The indictment does

not support this conclusion, however. The second paragraph of12 Although some, but not all

, of the “overt acts” alleged in the indictment

do involve fraud, Omari could be guilty of conspiracy whether or not such fraud

involving overt acts were committed, since under 18 U.S.C. § 371 there needs be

only one overt act by one of the conspirators. Omari’s guilty plea to Count One

therefore does not necessarily constitute an admission to any particular one or

more of the alleged overt acts.

11 section 2314 refers to transport of persons rather than goods.

See, e.g.

, United States v. Quintanilla

, 2 F.3d 1469, 1475 n.6 (7th

Cir. 1993) (noting that the second paragraph “applies only to the

interstate transportation of people, not property”); United States

v. Kelly

, 569 F.2d 928, 933 (5th Cir. 197 8); United States v.

Thomas

, 377 F.3d 232, 236 (2d Cir. 2004). Violation of the second

paragraph “requires the devising of a scheme to defraud any person

of money by false representations and causing or inducing that

person to travel in interstate commerce in furtherance of that

scheme.” Kelly

, 569 F.2d at 933. Although Omari’s selling of

airline tickets as alleged in the indictment could be construed as

an inducement of the ticket buyers to trave l in interstate

commerce, the description of the criminal scheme in the indictment

does not indicate that the scheme was intended to defraud or

deceive the ticket buyers (as opposed to the airlines), or that the

ticket buyers were deceived as to the nature of the tickets. For

the second paragraph of section 2314 to apply, the person being

induced to travel must be the person being defrauded.

Because 18 U.S.C. § 2314 does not necessarily involve fraud or

deceit, the judgment and indictment do not indicate that Omari was

necessarily convicted of an offense involving fraud or deceit, 12 and13 Section 1101(a)(43)(G) is not met because Omari’s term of imprisonment

for his conviction was less than one year.

12 the plea agreement and colloquy are not a part of the record, we

must conclude that the record does not suffice to establish that

Omari was convicted of an aggravated felony under 8 U.S.C. §

1101(a)(43)(M) or (U).

Conclusion

Based on the record before us, we find that Omari’s conviction

was not shown to be an offense (or a conspiracy to commit the same)

involving fraud or deceit, and we therefore do not consider whether

Omari’s conviction was shown to be an offense in which the loss to

the victims exceeded $10,000. For the same reason, we do not reach

Omari’s additional argument, based on Nugent v. Ashcroft

, 367 F.3d

162 (3d Cir. 2004), that his offense is a hybrid fraud/theft

offense which must satisfy the requirements of both 8 U.S.C. §

1101(a)(43)(M ) and 8 U.S.C. § 1101(a)(43)(G). 1 3 Because Omari’s

conviction was not shown to be one for an aggravated felony, we do

have jurisdiction over his petition for review.

The petition is GRANTED, the removal order is VACATED, and the

case is REMANDED to the BIA for any further appropriate proceedings

consistent with this opinion.