Abiodun O. Thompson v. JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES On Petition for Review from the…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-1242
ABIODUN O. THOMPSON,
Petitioner
v.
JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES
On Petition for Review from the Board of Immigration Appeals
Agency No. A43-355-871
Submitted Under Third Circuit LAR 34.1(a): November 19, 2004
Before: SCIRICA, Chief Judge, and McKEE and CHERTOFF, Circuit Judges.
(Filed December 6, 2004)
OPINION
Chertoff, Circuit Judge.
Appellant Abiodun O. Thompson was ordered removed to Nigeria because he was
convicted of an aggravated felony, namely theft of government funds in an amount over

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$10,000, in violation of 18 U.S.C. § 641. See 8 U.S.C. § 1227(a)(2)(A). The Board of
Immigration Appeals affirmed the removal. Our jurisdiction to review that decision is
limited to the legal question whether the crime of which Thompson was convicted is an
aggravated felony under the statute. See Drakes v. Zimski, 240 F.3d 246, 247 (3d Cir.
2001).
The aggravated felony which was applied to Thompson was 8 U.S.C. §
1101(a)(43)(M), covering an “offense that . . . involves fraud or deceit in which the loss
to the victim or victims exceeds $ 10,000.” On this appeal, Thompson concedes that he
violated 18 U.S.C. § 641, and that § 641 is an offense involving fraud or deceit. He also
acknowledges that he was ordered to pay restitution of $ 17,547 as part of his sentence,
which exceeds the required $ 10,000 loss of the victim under subsection (43)(M). But
Thompson argues that he was charged in an indictment which alleged two offenses, 18
U.S.C. § 641 and § 642, and that since he only pled guilty to § 641, it is impossible to
determine whether the restitution amount applied to § 641 or § 642.
This argument rests entirely on a false premise. Thompson was not charged with
violating 18 U.S.C. § 641 and § 642. He was charged with violating 18 U.S.C. § 641 and
§ 2 – the latter, of course, being not a separate offense but merely the statute that allows
aiders and abettors to be punished as if they were principals. The charging information,
plea, and judgment are completely consistent that Thompson was accused of, and pled
guilty to a single offense: violation of 18 U.S.C. § 641. The restitution amount applied to

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that single count. The decision of the Immigration Judge and the Board are completely
correct and consistent on this point. Petitioner’s claim that there is some ambiguity in the
criminal proceedings is entirely the product of his own confusion.
Since Petitioner was convicted of an aggravated felony, we lack jurisdiction to
conduct any further review, and we will dismiss the petition.

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