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


12-6-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1242




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"Thompson v. Atty Gen USA" (2004). 2004 Decisions. Paper 99.
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                                                               NOT PRECEDENTIAL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
$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



                                              2
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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