Sydney Morgan v. Attorney General of the United States

* Honorable Alan D. Lourie, United States Circuit Judge for the Federal Circuit,
sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-5293
SYDNEY MORGAN
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES
Respondent.
On Petition for Review of a Final Order of the Board of Immigration Appeals
(BIA No. A37-771-200)
Immigration Judge: Honorable Walter A. Durling
Submitted Under Third Circuit LAR 34.1(a),
March 15, 2007
Before: FUENTES, GREENBERG and LOURIE,* Circuit Judges
(Filed: April 13, 2007)
_____
OPINION OF THE COURT

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1 Section 1227(a)(2)(A)(iii) provides that “[a]ny alien who is convicted of an
aggravated felony at any time after admission is deportable.” Under 8 U.S.C. § 1229b(a),
an alien who is convicted of an aggravated felony is also ineligible for discretionary relief
from removal.
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FUENTES, Circuit Judge.
Sydney Morgan petitions this Court for review of a final order of removal entered
by the Board of Immigration Appeals (“BIA”). Morgan was ordered removed on grounds
that his conviction for conspiracy to commit mail fraud and wire fraud constitutes an
“aggravated felony” under the immigration laws. Because we agree that Morgan’s
conviction constitutes an aggravated felony, we will deny the petition.
Morgan is a native and citizen of Jamaica who entered the United States in 1983,
and subsequently became a lawful permanent resident. In October of 2002, he pleaded
guilty to one count of conspiracy to commit mail fraud (18 U.S.C. § 1341) and wire fraud
(18 U.S.C. § 1343) in violation of 18 U.S.C. § 371, the general federal conspiracy statute.
The statutory provisions to which Morgan pleaded guilty do not specify an amount of
loss. Morgan stipulated in his plea agreement, however, that the actual and intended
amount of loss was between $250,000 and $300,000. The District Court sentenced
Morgan to twelve months and one day of imprisonment, three years of supervised release,
and $325,000 in restitution.
Based on this conviction, the Department of Homeland Security (“DHS”) served
Morgan with a Notice to Appear, charging him with removability pursuant to 8 U.S.C. §
1227(a)(2)(A)(iii) 1 as an alien convicted of an aggravated felony. The government’s

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aggravated felony charge was based on 8 U.S.C. § 1101(a)(43)(M)(i), which defines as an
“aggravated felony” any offense “that involves fraud and deceit in which the loss to the
victim or victims exceeds $10,000.” Morgan argued that his fraud conviction did not
constitute an aggravated felony because the actual loss was less than $10,000. In an
interlocutory ruling, an Immigration Judge (“IJ”) rejected Morgan’s argument, finding
that Morgan’s plea agreement established that the actual and intended loss to the victim
was in excess of $10,000. Accordingly, the IJ ordered Morgan removed to Jamaica, and
the BIA summarily affirmed.
On appeal, Morgan argues that the plea agreement does not establish by clear and
convincing evidence that he committed an aggravated felony. As stated in his brief on
appeal: “Mr. Morgan never admitted that his conviction involved more than $10,000 of
loss. He only admitted that the Sentencing Guidelines would hold him accountable for
such a loss.” This argument is unpersuasive.
We have jurisdiction over this petition for review pursuant to 8 U.S.C. § 1252(a).
See Bobb v. Attorney General, 458 F.3d 213, 217 (3d Cir. 2006). We exercise de novo
review over the BIA’s determination as to whether a criminal conviction constitutes an
aggravated felony. Id. Where, as here, the BIA adopts the opinion of the IJ, we review
the IJ’s decision. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002).
In determining whether an offense is an aggravated felony, “we presumptively
apply the categorical approach.” Alaka v. Attorney General, 456 F.3d 88, 105 (3d Cir.
2006). “This approach prohibits consideration of evidence other than the statutory

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definition of the offense, thus not taking into account the particular facts underlying a
conviction.” Id. at 105-06. A court may abandon the formal categorical approach,
however, when the terms of the statute on which removal is based requires an inquiry into
the facts of the underlying conviction.” Id. at 106.
We have previously determined that 8 U.S.C. § 1101(a)(43)(M)(i)—the provision
at issue here—requires further inquiry because it categorizes only certain fraud offenses
as aggravated felonies based on the amount of loss involved. Id. In making this
determination, we held that it is appropriate to look to the underlying plea agreement in
order to determine the amount of loss. Id. at 107 (“[B]ecause it is the plea agreement that
establishes the offense for which defendant will be convicted, it is to that agreement . . .
that we look in determining the intended loss.”). Therefore, we agree with the IJ that
Morgan’s plea agreement, in which he stipulated to an amount of loss between $250,000
and $300,000, establishes that he was convicted of an aggravated felony.
Accordingly, we will deny the petition for review.

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