                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-22-2004

Karavolos v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1549




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"Karavolos v. Atty Gen USA" (2004). 2004 Decisions. Paper 925.
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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 03-1549


                  KONSTANTINOS KYRIAKOS KARAVOLOS,
                                      Petitioner

                                           v.

                    JOHN ASHCROFT, ATTORNEY GENERAL
                     OF THE UNITED STATES OF AMERICA,
                                          Respondent


                PETITION FOR REVIEW OF AN ORDER OF THE
                    BUREAU OF IMMIGRATION APPEALS
                          Agency No. A43-095-750


                     Submitted Under Third Circuit LAR 34.1(a)
                                February 24, 2004


             Before: RENDELL, BARRY, and ROSENN, Circuit Judges


                           (Opinion Filed: March 22, 2004)


                                      OPINION




BARRY, Circuit Judge

     Because we write only for the parties in this matter, we will dispense with a full
recitation of the facts and limit our discussion only to those facts necessary to reach our

decision. Petitioner Konstantinos Kyriakos Karavolos, a native and citizen of Greece,

pled guilty to conspiracy to use and traffic in counterfeit access devices, in violation of 18

U.S.C. §§ 1029(a)(1) and 1029(c)(2). He was sentenced to home detention, five-years’

probation, and $60,800.00 restitution.1 The Immigration and Naturalization Service

(“INS”) charged him with being removable as an alien convicted of an aggravated felony

that involves fraud or deceit in which the loss to the victim exceeds $10,000, and a

removal hearing was held. The statute under which petitioner was convicted does not

indicate any particular monetary loss.

       The immigration judge (“IJ”) admitted as proof of conviction the criminal

judgment and the presentence investigation report (“PSR”). As relevant here, the

judgment of conviction stated: (1) that petitioner pled guilty to count one of the

indictment; (2) that the amount of restitution ordered was $60,800.00; (3) that “[t]he court

adopts the factual findings and guideline application in the presentence report except . . .

[t]he Court lowers restitution amount to [$60,800.00] . . . .” The PSR indicated that

petitioner pled guilty to Count One of a two count indictment, and that he and others

conspired to traffic in counterfeit access devices, resulting in a monetary loss to three

banking institutions in the total sum of $113,946.03. The IJ determined that petitioner



  1
   He was also convicted in 1985 of criminal possession of a weapon in Criminal Court
for the City of New York and in 2001 of unlawful use of a controlled substance in U.S.
District Court (E.D.N.Y.).

                                              2
had been convicted of an aggravated felony because the factual recitation in the PSR

indicated that the amount of the loss suffered by the victims was greater than $10,000.

       Petitioner appealed to the Board of Immigration Appeals (“BIA”). Although he

conceded that the offense to which he pled guilty involved fraud or deceit, he asserted

that the IJ erroneously used the PSR to find that the loss to the victims exceeded $10,000.

The BIA concluded that the IJ did not err.

       Under 8 U.S.C. § 1252(a)(2)(C), we lack jurisdiction to review a final order of

removal against an alien convicted of an aggravated felony, and we must dismiss the

petition. Drakes v. Zimski, 240 F.3d 246, 247 (3d Cir. 2001). Aggravated felony

includes “an offense that involves fraud or deceit in which the loss to the victim or

victims exceeds $10,000.” 8 U.S.C. § 1101(a)(43)(M)(i). Petitioner does not contest that

his offense involved fraud or deceit. All he argues is that the IJ erred in relying on the

PSR to establish a loss of more than $10,000 and that, therefore, he did not commit an

aggravated felony. We disagree.

       We do not have to reach the question of whether the amount of loss set forth in the

PSR was properly considered because the judgment of conviction, admitted by the IJ,

establishes the requisite loss by ordering that petitioner pay restitution of $60,800.

Indeed, the District Court indicated in the judgment that the $60,800 represented only

partial restitution, and that it “did not credit [petitioner] with the entire amount [of loss]

since he was one of five to six people who robbed the bank.” Because the judgment of



                                               3
conviction, even without the PSR, sufficiently establishes that petitioner’s offense

involved a loss in excess of $10,000 and was an aggravated felony, we will dismiss the

petition for lack of jurisdiction.




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