NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 17-3790 _____________ JAMES OGUNYEMI FRIDAY, AKA Friday James, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent ____________ On Petition for Review of an Order of the Board of Immigration Appeals (A078-510-752) Submitted Pursuant to Third Circuit L.A.R. 34.1(a) September 25, 2018 Before: AMBRO, CHAGARES, and GREENAWAY, JR., Circuit Judges. (Filed: September 28, 2018) ____________ OPINION ∗ ____________ ∗ This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. CHAGARES, Circuit Judge. Petitioner James Ogunyemi Friday challenges the decision of the Board of Immigration Appeals (“BIA”) concluding that, as a result of his tax fraud conviction, he is removable as an aggravated felon. As explained below, we conclude that Friday’s stipulation at sentencing that a restitution order of $145,156 would be appropriate was a concession that the actual loss tied to his counts of conviction was in excess of $10,000, qualifying his 26 U.S.C. § 7206(2) conviction as an aggravated felony and rendering him removable under 8 U.S.C. § 1227(a)(2)(A)(iii). Because the BIA did not err in determining that Friday had committed an aggravated felony, we have no jurisdiction to review the BIA’s final order of removal, so we will deny Friday’s petition for review. I. We write for the parties and so recount only the facts necessary to our decision. Friday is a citizen of Liberia who has been a lawful permanent resident of the United States since 2009. In 2013, he was convicted of 26 counts of aiding and assisting in the preparation and filing of materially false tax returns, in violation of 26 U.S.C. § 7206(2). The parties and the District Court agreed with the Presentencing Report (“PSR”) that the loss calculation for the purposes of determining Friday’s sentence — which, per the Sentencing Guidelines, includes intended loss stemming from the entire “course of conduct,” whether or not charged, see United States Sentencing Guidelines (“U.S.S.G.”) § 2T1.1(c)(1) & cmt. n.2, 2T1.4 cmt. n.1 — was $1,215,562. Based on the resulting total offense level of 24, the Guidelines recommended a sentence of between 51 and 63 2 months of imprisonment, but the District Court departed downward and sentenced Friday to 36 months of imprisonment. Furthermore, citing Friday’s inability to pay and the difficulty involved in the calculation, the District Court ordered no restitution, thereby rejecting the parties’ agreement that a restitution order of $145,156 — which the Government explained was “the actual fraud loss that can be traced to the counts of conviction” — would be appropriate. Administrative Record (“AR”) 143. The Department of Homeland Security thereafter sought to have Friday removed under the Immigration and Nationality Act (“INA”) as an alien convicted of an “aggravated felony,” 8 U.S.C. § 1227(a)(2)(A)(iii), which in turn is defined to include an offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000,” id. § 1101(a)(43)(M)(i). Friday contended that his conviction did ...
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