Theft, Fraud and the Loss Amount Threshold

Most entries in the aggravated felony list describe a kind of conduct. Two of the most frequently charged describe a number instead. A theft or burglary offense qualifies only where the sentence reaches a year, and a fraud offense only where the loss passes ten thousand dollars. Those two numbers are established in completely different ways, and confusing the methods produces wrong answers in both directions.

The one-year sentence

The theft entry covers a theft offense, including receipt of stolen property, or a burglary offense, for which the term of imprisonment is at least one year. The offense itself is tested against a generic federal definition using the ordinary elements comparison described in the categorical approach. The sentence is then read off the judgment.

The counting rule is the trap. The statute provides that a reference to a term of imprisonment includes the period of incarceration ordered by a court regardless of any suspension of imposition or execution, in whole or in part. A sentence of three hundred sixty-five days, entirely suspended, with no time served, is a one-year sentence.

The difference between three hundred sixty-four days and three hundred sixty-five days is therefore the difference between a conviction with severe consequences and one without. That single day is the most consequential number in this part of the law, and it is fixed at sentencing rather than at any later stage.

The ten thousand dollar loss

The fraud entry covers an offense that involves fraud or deceit in which the loss to the victim or victims exceeds ten thousand dollars. Parallel entries cover tax evasion where the revenue loss to the government exceeds the same figure, and money laundering where the funds exceeded it.

The Supreme Court has held that this figure is not an element of the offense. It is a circumstance-specific fact about the particular case, which means the ordinary elements comparison does not apply to it. A state fraud statute with no monetary threshold at all can still produce a qualifying conviction if the loss in that case exceeded the figure.

Because it is a fact rather than an element, it is proved rather than compared, and the government must establish it by clear and convincing evidence where removability is contested. The proof must also be tethered: the loss counted is the loss tied to the counts of conviction, not to charges that were dismissed or to conduct that was never prosecuted.

What the generic definitions require

Before either number matters, the offense has to fit the federal category. Generic theft is usually described as the taking of property, or the exercise of control over property, without consent and with the intent to deprive the owner of the rights and benefits of ownership. Statutes that reach takings with the owner's consent obtained by deceit, or that require no intent to deprive at all, may fall outside it.

Courts have divided over whether a statute reaching a merely temporary deprivation matches the generic definition, and the answer can depend on the circuit in which the case is heard. Where a state theft statute is written as a list of alternatives, the first question is whether that list creates separate offenses, which controls whether any document from the criminal file can be consulted at all, as set out in divisible statutes and the documents a judge may read.

The fraud entry has a different shape. Because it speaks of an offense involving fraud or deceit rather than naming a generic crime, it has been read to cover a range of offenses whose elements include a fraudulent or deceitful component, which is why the argument in fraud cases is usually about the number rather than about the category.

Documents that decide the number

For the sentence threshold, one document governs: the judgment and sentence, in certified form, showing exactly what was imposed and what was suspended. Docket entries summarizing a sentence are frequently imprecise about suspension, and a summary saying twelve months probation may sit on top of an underlying suspended term that decides the case.

For the loss threshold the file is larger. The plea agreement often contains a stipulated loss figure, and where it does that figure usually controls unless it can be shown to cover conduct outside the counts of conviction. The plea colloquy transcript may record what the person actually admitted. Restitution worksheets, victim statements and any sentencing memorandum show how a total was assembled.

The order of work is to obtain everything first and argue afterward. A figure conceded in general terms at a hearing, before the documents arrive, cannot easily be walked back once the worksheets show it was built from dismissed counts.

Where the argument actually happens

Three arguments recur. The first is that the sentence was under a year, which is settled by the judgment and is either available or not. The second is that the loss tied to the counts of conviction was at or below the threshold, which is fought on the plea agreement, the restitution documentation and the transcript. The third is that the offense itself falls outside the generic definition on its elements.

The stakes justify the work, because an aggravated felony conviction bars cancellation of removal for a permanent resident outright, as described in cancellation for a green card holder, and closes off most other relief. Where none of the three arguments is available, attention usually turns to whether the judgment or the sentence can be disturbed in the criminal court, which is the subject of vacating a conviction for immigration purposes. Assembling the plea agreement, the restitution record and the transcript, and matching each figure to a specific count, is the work an aggravated felony defense counsel does before deciding which of the three arguments the case will run on.