United States Court of Appeals For the First Circuit Nos. 17-1800 18-1126 UNITED STATES OF AMERICA, Appellee, v. NIMON NAPHAENG, Defendant, Appellant. APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. William E. Smith, U.S. District Judge] Before Howard, Chief Judge, Selya and Thompson, Circuit Judges. John T. Ouderkirk, Jr., for appellant. Donald C. Lockhart, Assistant United States Attorney, with whom Stephen G. Dambruch, United States Attorney, was on brief, for appellee. October 12, 2018 SELYA, Circuit Judge. In these sentencing appeals, defendant-appellant Nimon Naphaeng, a convicted fraudster, challenges a restitution order entered pursuant to the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A, in the amount of $581,880. After pausing to smooth out two jurisdictional wrinkles, we reach the merits and conclude that the appellant's challenge is futile. Accordingly, we affirm. I. BACKGROUND We briefly rehearse the relevant facts and travel of the case. The appellant concocted a fraudulent scheme to obtain work permits for Thai nationals living in the United States. Specifically, he advertised through flyers and the internet that he could obtain employment-authorization documents (EADs) in exchange for fees ranging from $1,500 to $2,500 per person. He was, in fact, able to obtain EADs for the applicants — but he did so by filing asylum petitions on the applicants' behalf. These petitions, filed without the applicants' knowledge, were apocryphal. As the appellant admitted to the district court, concealing the asylum applications from his clientele was "at the heart" of the scheme. The appellant perpetrated his fraud over a period of sixteen months — but the chickens eventually came home to roost. In January of 2015, an immigration officer noticed that around sixty-four Thai asylum applications were filed from two Rhode - 2 - Island addresses. This spike in filings was extraordinary; typically, an average of twenty Thai asylum applications were filed each year. Nor were common addresses the only feature shared by these suspicious applications: they also contained exactly the same typographical errors, identical explanations for seeking asylum, matching supplemental forms, and the same coterie of supporting documents. In due season, a federal grand jury sitting in the District of Rhode Island returned a twenty-six count indictment against the appellant. In addition, the government "froze" hundreds of thousands of dollars that had been accumulated by the appellant. After some preliminary skirmishing (not relevant here), the appellant pleaded guilty to seven counts of mail fraud, see 18 U.S.C. § 1341, and two counts of visa fraud, see id. § 1546(a).1 As part of the plea agreement, the parties agreed that the per- application fee charged by the appellant ranged from $1,500 to $2,500. Although the change-of-plea colloquy specifically identified only ten victims, the parties did not purport to make a definitive head count. Instead, identification of those victims who might be owed restitution was deferred to the sentencing phase. 1 As provided in the plea agreement, the remaining counts were dismissed at the time of sentencing. - 3 - On May 3, ...
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