Alien's Conviction for Aiding & Abetting Bank Fraud Qualifies as Aggravated Felony

James v. Gonzales, No. 04-60445 (5th Cir. Sept. 5, 2006)

James travels one of the less familiar backroads of the aggravated felony definition, namely 8 U.S.C. § 1101(a)(43)(M)(i). That provision includes as an aggravated felony "an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000[.]" James argued that his conviction for aiding and abetting bank fraud (18 U.S.C. §§ 2, 1344) did not qualify as an aggravated felony under (a)(43)(M)(i), for two reasons.

First, James argued that because § 1101(a)(43)(U) specifically includes attempts or conspiracies to commit offenses listed elsewhere in the aggravated felony definition, but not aiding and abetting, his conviction for aiding and abetting bank fraud was not an aggravated felony. The court rejected that specific contention, noting that "the aiding and abetting statute . . . does not define a separate crime, but rather provides another means of convicting someone of the underlying offense." Slip op. at 8 (internal quotation marks and citation omitted). More generally, the court held that "involves" in (a)(43)(M)(i) is sufficiently broad enough to encompass aiding and abetting bank fraud.

Second, James argued that his bank fraud conviction did not involve a loss in excess of $10,000, because the count to which he pled guilty alleged only a $9,500 wire transfer. The court rejected this argument, as well. The court's reasoning on this point is difficult to follow, but it appears to be this: 1) James' indictment alleged a scheme to defraud, so the loss amount is not limited to the amount alleged in the single count to which he pled guilty, and 2) the restitution order, which was based on a PSR that calculated intended losses somewhat conservatively, only included actual losses suffered by the victims and that amount far exceeded $10,000.