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Maria Arce Fuentes v. Lynch

Maria Arce Fuentes v. Lynch held that the "circumstance-specific" approach applies to the money laundering aggravated felony definition at 8 USC 1101(a)(43)(D). That definition requires the amount of funds laundered to exceed $10,000, and the circumstance-specific approach allows a court to determine the amount of funds involved by looking to evidence outside the elements of the conviction. The Ninth Circuit held that evidence could include a pre-sentence report (PSR), but not alleged overt acts that were not necessary for the offense of conviction.

In this case, Maria Arce Fuentes was allegedly involved in a conspiracy in Puerto Rico to launder drug trafficking proceeds. She and other codefendants were indicted for conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h) and 74 substantive counts of money laundering in violation of 18 U.S.C. § 1956(a). Ms. Arce Fuentes pleaded guilty to conspiracy and the substantive counts were dismissed. The PSR indicated that the prosecution and defense agreed that an eight-level increase to the offense level was appropriate because Ms. Arce Fuentes laundered more than $70,000.

The Ninth Circuit first confirmed that the circumstance-specific approach does apply when determining the amount of funds laundered for the aggravated felony definition at 8 USC 1101(a)(43)(D). The panel found this result compelled by the Supreme Court's decision regarding the similar aggravated felony definition at 8 U.S.C. § 1101(a)(43)(M)(i), which concerns a fraud or deceit offense where the loss to the victim exceeded $10,000. Thus, the agency did not err by looking to evidence beyond the elements of Ms. Arce Fuentes's conviction.

The Ninth Circuit held, however, that this did not extend to consideration of dismissed counts that were not incorporated into the offense of conviction. The immigration judge had found the conviction involved the laundering of funds in excess of $10,000 based on the indictment and the judgment. The conspiracy count that Ms. Arce Fuente was convicted of did not itself allege a loss amount in excess of $10,000, but cited other dismissed counts involving amounts exceeding $10,000. The conspiracy count cited these dismissed counts as overt acts, but this was apparently due to an error in the indictment. In Whitfield v. United States, 543 U.S. 209, 214 (2005), the Supreme Court held that money laundering conspiracy under 18 U.S.C. § 1956(h) does not require an overt act. So, alleging the overt acts was not necessary to the indictment. Since the acts were not necessary for the conviction, the Ninth held that a guilty plea to the conspiracy count did not incorporate them and they could not prove the amount of the funds involved.

Despite this error, the Ninth Circuit upheld the aggravated felony finding because the Board of Immigration Appeals also relied on the PSR. The PSR indicated the parties agreed that the amount of funds exceeded $70,000. No evidence contradicted the PSR, so the Ninth Circuit held it provided clear and convincing evidence to sustain the aggravated felony charge.

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