Arman Khalulyan v. Merrick Garland ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARMAN AKOPOVICH No. 21-70909
KHALULYAN, AKA Armen
Khalulyan, Agency No.
A071-083-833
Petitioner,
v. OPINION
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted January 27, 2023
San Francisco, California
Filed March 30, 2023
Before: Ronald M. Gould, Johnnie B. Rawlinson, and
Daniel A. Bress, Circuit Judges.
Opinion by Judge Bress
2 KHALULYAN V. GARLAND
SUMMARY *
Immigration
Dismissing in part and denying in part Arman
Khalulyan’s petition for review of a decision of the Board
of Immigration Appeals that found him removable for
having been convicted of an aggravated felony under 8
U.S.C. § 1101(a)(43)(M)(i), which describes an offense
that “involves fraud or deceit in which the loss to the victim
or victims exceeds $10,000,” the panel held that: (1) in
evaluating whether the government has satisfied the
“exceed[ing] $10,000” requirement, the relevant loss
amount for a conspiracy conviction is the loss associated
with the conspiracy; and (2) the agreed-upon sentencing
enhancement in Khalulyan’s plea agreement was sufficient
to prove that his offense of conviction involved more than
$10,000 in losses.
Khalulyan and several others were charged in a 20-
count indictment. Count one charged the defendants with
conspiracy to possess fifteen or more unauthorized access
devices (credit and debit cards), in violation of 18 U.S.C. §
1029(b)(2). The indictment alleged that the defendants
installed “skimming devices” on gas pump credit card
readers, enabling the defendants to make off with the credit
card numbers of customers. Khalulyan pleaded guilty to
count one, and the other charges were dismissed. An
Immigration Judge later ordered Khalulyan removed,
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
KHALULYAN V. GARLAND 3
finding that his conspiracy conviction rendered him
removable and that he was not entitled to relief from
removal. The BIA dismissed Khalulyan’s appeal.
Khalulyan did not dispute that his conspiracy
conviction categorically qualified as a crime involving
fraud or deceit under § 1101(a)(43)(M)(i). The
disagreement instead related to the requirement that the
offense be one “in which the loss to the victim or victims
exceeds $10,000.” On this point, courts employ a
“circumstance-specific” approach, under which the court
looks to the particular circumstances in which an offender
committed a fraud or deceit crime on a particular occasion.
Under this approach, courts are generally free to consider
any admissible evidence relevant to the loss amount. The
Supreme Court has instructed, however, that the loss to the
victims must be tethered to the offense of conviction and
cannot be based on acquitted or dismissed counts.
Khalulyan’s principal argument was that the IJ and BIA
never determined how much loss he personally caused.
And he pointed out that there was no record evidence that
the district court in his criminal case made any such
findings, which are also not reflected in his plea
agreement. Khalulyan thus contended that the government
did not meet its burden of proof on the loss threshold. The
panel concluded that the problem with Khalulyan’s
argument was that he was convicted of conspiracy and,
under the basic law of conspiracy, the amount of loss
tethered to a conviction is the loss associated with the
conspiracy itself because all co-conspirators are criminally
liable for reasonably foreseeable overt acts committed by
others in furtherance of the conspiracy they have joined.
4 KHALULYAN V. GARLAND
The panel held that under § 1101(a)(43)(M)(i), the loss
tied to a conspiracy conviction is the loss associated with
the scheme that forms the basis for the conviction. The
panel explained that when an alien has been convicted of a
conspiracy to commit a qualifying crime of “fraud or
deceit,” the government need not ascribe to the alien co-
conspirator some individual portion of the overall
conspiracy-related loss to demonstrate that the loss
threshold has been satisfied.
The panel also concluded that the government had met
its burden of proving that the conspiracy to which
Khalulyan pleaded guilty involved more than $10,000 in
losses. Khalulyan in his plea agreement admitted that he
knew his co-conspirators were stealing credit card numbers
to make fraudulent purchases, and that ten or more victims
were involved. Critically, Khalulyan agreed to a
sentencing enhancement for a loss of more than $250,000.
The panel explained that there was no basis to treat that
stipulation as reflecting anything other than the loss
associated with the conspiracy count of conviction and that
no further parceling of this amount as between Khalulyan
and his co-defendants was required.
The panel found support for its approach in Doe v.
Attorney General of United States, 659 F.3d 266 (3d Cir.
2011). There, the petitioner pleaded guilty to adding and
abetting wire fraud, but in later removal proceedings
argued that the loss fell short of $10,000 because his plea
agreement identified only a single transaction under that
amount. The Third Circuit rejected that argument,
reasoning that the petitioner pleaded guilty to aiding and
abetting an entire scheme, not merely a single discrete act
identified in his plea agreement. The panel concluded that
similar logic applied to Khalulyan.
KHALULYAN V. GARLAND 5
In a concurrently filed memorandum disposition, the
panel concluded that petitioner was not entitled to relief
from removal.
COUNSEL
Kevin W. Harris (argued), Kevin W. Harris Attorney at
Law, Sacramento, California; Ryan P. Friedman, Friedman
Law Firm Inc., Sacramento, California; for Petitioner.
Ilana J. Snyder (argued) and Joanna L. Watson, Trial
Attorneys; Anthony P. Nicastro, Assistant Director; Brian
Boynton, Principal Deputy Assistant Attorney General;
Office of Immigration Litigation, Civil Division, United
States Department of Justice, Washington, D.C.; for
Respondent.
6 KHALULYAN V. GARLAND
OPINION
BRESS, Circuit Judge:
An alien who is convicted of an offense that “involves
fraud or deceit in which the loss to the victim or victims
exceeds $10,000” may be removed from the United States.
8 U.S.C. §§ 1101(a)(43)(M)(i), 1227(a)(2)(A)(iii). The
question before us is whether petitioner’s qualifying
conspiracy conviction exceeded the $10,000 threshold
when he stipulated in his plea agreement to a sentencing
enhancement for a loss of more than $250,000. We hold
that in evaluating whether the government has satisfied the
“exceed[ing] $10,000” requirement in § 1101(a)(43)(M)(i),
the relevant loss amount for a conspiracy conviction is the
loss associated with the conspiracy. We further hold that
the agreed-upon sentencing enhancement in petitioner’s
plea agreement is sufficient to prove that his offense of
conviction involved more than $10,000 in losses.
Petitioner is therefore subject to removal. 1
I
The petitioner, Arman Khalulyan, was born in the
former Soviet Union in what is now Armenia. He entered
the United States with his family in 1992 at age seven,
becoming a lawful permanent resident in 1994.
In 2015, Khalulyan and several others were charged in
a 20-count indictment in the United States District Court
for the Central District of California. Count one charged
1
In a concurrently filed memorandum disposition, we conclude that
petitioner is not entitled to relief from removal.
KHALULYAN V. GARLAND 7
the defendants with conspiracy to possess fifteen or more
unauthorized access devices (credit and debit cards), in
violation of 18 U.S.C. § 1029(b)(2). The indictment
alleged that the defendants installed “skimming devices” on
gas pump credit card readers throughout Southern
California, enabling the defendants to make off with the
credit card numbers of gas station customers. Count one of
the indictment identified 89 overt acts in support of the
conspiracy and twelve occasions on which the defendants
had installed or attempted to install the skimming devices
or purchased materials for their scheme.
Khalulyan pleaded guilty to count one, and the other
charges were dismissed. In his plea agreement, Khalulyan
admitted that he “entered into an agreement between one or
more other persons to operate a credit card skimming
operation.” He further admitted that on multiple occasions,
he helped his co-conspirators install skimming devices at
gas pumps to steal customers’ credit and debit card
numbers. Khalulyan’s admitted role in the conspiracy was
to distract and block the view of gas station attendants so
they would not notice his co-conspirators installing the
devices. Khalulyan admitted to engaging in this ploy at gas
stations across Southern California, knowing that the stolen
card numbers “would be used by members of the
conspiracy, without authorization, to make fraudulent
purchases.” The plea agreement also recited how
Khalulyan’s co-conspirators were later caught with 494
blank credit cards encoded with stolen numbers, as well as
device-making equipment.
In his plea agreement, Khalulyan agreed to the
application of a 12-level sentencing enhancement for a
“Loss of More Than $250,000.” See U.S. Sentencing
Guidelines Manual § 2B1.1(b)(1)(G) (U.S. Sentencing
8 KHALULYAN V. GARLAND
Comm’n 2015). Khalulyan also agreed to sentencing
enhancements for offenses involving ten or more victims
and for trafficking in unauthorized access devices.
Khalulyan was sentenced to 18 months’ imprisonment and
three years’ supervised release.
In 2017, the Department of Homeland Security sought
Khalulyan’s removal. An Immigration Judge (IJ) found
that Khalulyan’s conspiracy conviction rendered him
removable and that Khalulyan was not entitled to relief
from removal. The IJ thus ordered that Khalulyan be
removed to Armenia. The Board of Immigration Appeals
(BIA) dismissed Khalulyan’s appeal.
Khalulyan timely petitioned for review in this court.
We have jurisdiction under 8 U.S.C. § 1252. Although 8
U.S.C. § 1252(a)(2)(C) prevents us from reviewing final
orders of removal against aliens who have committed
aggravated felonies, we have “jurisdiction to determine our
own jurisdiction” and therefore to decide whether an alien
committed an aggravated felony that can support removal.
Aguilar-Turcios v. Holder, 740 F.3d 1294, 1299 (9th Cir.
2014). We review this purely legal question de novo.
Fuentes v. Lynch, 788 F.3d 1177, 1180 (9th Cir. 2015) (per
curiam).
II
A
“Any alien who is convicted of an aggravated felony at
any time after admission is deportable.” 8 U.S.C.
§ 1227(a)(2)(A)(iii). Various offenses qualify as
“aggravated felonies” for purposes of this provision. See
id. § 1101(a)(43) (defining “aggravated felony”). Relevant
here, an “aggravated felony” includes an offense that
KHALULYAN V. GARLAND 9
“involves fraud or deceit in which the loss to the victim or
victims exceeds $10,000,” or a “conspiracy to commit”
such an offense. Id. §§ 1101(a)(43)(M)(i), (U). Thus, one
who is convicted of conspiracy to commit an offense
involving fraud or deceit in which the loss to the victims
exceeds $10,000 has committed an “aggravated felony” and
is removable under § 1227(a)(2)(A)(iii). The government
must demonstrate removability by clear and convincing
evidence. Id. § 1229a(c)(3)(A).
To determine whether an offense qualifies as one
involving “fraud or deceit,” we use the categorical
approach. Kawashima v. Holder, 565 U.S. 478, 483
(2012). That requires us to “look[] to the statute defining
the crime of conviction, rather than to the specific facts
underlying the crime.” Id. Khalulyan does not dispute that
his conviction for conspiracy to possess fifteen or more
unauthorized access devices, 18 U.S.C. § 1029(b)(2),
categorically qualifies as a crime involving fraud or deceit
under § 1101(a)(43)(M)(i).
The disagreement in this case instead relates to the
second of § 1101(a)(43)(M)(i)’s principal requirements:
that the fraud offense be one “in which the loss to the
victim or victims exceeds $10,000.” On this aspect of the
analysis, we employ a “circumstance-specific” approach.
Nijhawan v. Holder, 557 U.S. 29, 38 (2009). We are not
limited to the elements of the offense of conviction, as we
are when the categorical approach applies. Instead, in
assessing whether the offense involved more than $10,000
in loss, we look to “the particular circumstances in which
an offender committed a . . . fraud or deceit crime on a
particular occasion.” Id. at 32.
10 KHALULYAN V. GARLAND
Because our assessment of the $10,000 loss threshold is
“circumstance-specific,” we are also “not limited to only
those documents which a court applying the modified
categorical approach may review.” Kawashima v. Holder,
615 F.3d 1043, 1056 (9th Cir. 2010). The list of materials
we may consult includes “charging documents, jury
instructions,” “special jury finding[s],” “judge-made
findings,” “written plea documents,” “the plea colloquy,”
“sentencing-related material,” and a “defendant’s own
stipulation[s].” Nijhawan, 557 U.S. at 41–42. But nor are
we limited to sentencing-related materials or the record in
the underlying criminal case. Orellana v. Mayorkas, 6
F.4th 1034, 1036, 1040–41 (9th Cir. 2021). Instead, courts
(and the BIA) “are generally free to consider any
admissible evidence relevant” to whether the offense
involved more than $10,000 in loss. Id. at 1041.
The Supreme Court has instructed, however, that “the
loss must be tied to the specific counts covered by the
conviction.” Nijhawan, 557 U.S. at 42 (quotation omitted).
Thus, “[f]or purposes of 8 U.S.C. § 1101(a)(43)(M)(i), the
loss to the victim must be ‘tethered to [the] offense of
conviction’ and ‘cannot be based on acquitted or dismissed
counts.’” Orellana, 6 F.4th at 1043 (quoting Nijhawan,
557 U.S. at 42) (second alteration in original).
Khalulyan’s principal argument is that the IJ and BIA
never determined how much loss Khalulyan personally
caused through his participation in the “skimming device”
scheme. And he points out that there is no evidence in the
record that the district court in his underlying criminal case
made any such findings, which are also not reflected in his
plea agreement. Khalulyan thus contends that the
government has not met its burden of proof on the $10,000
loss threshold. Khalulyan further maintains that his role in
KHALULYAN V. GARLAND 11
the criminal scheme was minor, asserting before the IJ that
he was paid $100 to $200 per day and made a “[c]ouple
thousand” dollars total for his efforts to distract gas station
employees.
The problem with Khalulyan’s argument is that he was
convicted of conspiracy. Under the basic law of
conspiracy, the amount of loss “tethered to” a conspiracy
conviction, Nijhawan, 557 U.S. at 42, is the loss associated
with the conspiracy itself. That is because “all co-
conspirators [are] criminally liable for reasonably
foreseeable overt acts committed by others in furtherance
of the conspiracy they have joined, whether they were
aware of them or not.” United States v. Hernandez-
Orellana, 539 F.3d 994, 1007 (9th Cir. 2008) (citing
Pinkerton v. United States, 328 U.S. 640, 647 (1946)); see
also United States v. Long, 301 F.3d 1095, 1103 (9th Cir.
2002) (per curiam) (explaining that under Pinkerton, “a
conspirator [is] criminally liable for the substantive
offenses committed by a co-conspirator when they are
reasonably foreseeable and committed in furtherance of the
conspiracy”).
In pleading guilty to count one, Khalulyan necessarily
acknowledged his conspiratorial liability associated with
the device-skimming scheme. And the loss associated with
that scheme, and thus Khalulyan’s conviction, is the loss
tied to the conspiracy as a whole. We hold that under
§ 1101(a)(43)(M)(i), the loss tied to a conspiracy
conviction, see Nijhawan, 557 U.S. at 42, is the loss
associated with the conspiratorial scheme that forms the
basis for the conspiracy conviction. When an alien has
been convicted of a conspiracy to commit a qualifying
crime of “fraud or deceit,” the government need not ascribe
to the alien co-conspirator some individual portion of the
12 KHALULYAN V. GARLAND
overall conspiracy-related loss to demonstrate that the
$10,000 loss threshold in § 1101(a)(43)(M)(i) has been
satisfied.
There remains the question of whether the government
has proven that the conspiracy to which Khalulyan pleaded
guilty involved more than $10,000 in losses to the victims.
We easily conclude that the government has met its burden.
Khalulyan in his plea agreement admitted that he knew his
co-conspirators were stealing credit card numbers to make
fraudulent purchases, and that ten or more victims were
involved. Critically, Khalulyan further agreed to a 12-level
sentencing enhancement for a “Loss of More Than
$250,000.” We may consider this stipulated amount under
the circumstance-specific approach. See Nijhawan, 557
U.S. at 42–43 (“The defendant’s own stipulation, produced
for sentencing purposes, show[ed] that the conviction
involved losses considerably greater than $10,000.”).
There is no basis to treat the $250,000 loss enhancement
stipulation in Khalulyan’s plea agreement as reflecting
anything other than the loss associated with the conspiracy
count of conviction. For purposes of § 1101(a)(43)(M)(i),
no further parceling of this amount as between Khalulyan
and his co-defendants is required.
We find support for our approach in the Third Circuit’s
decision in Doe v. Attorney General of United States, 659
F.3d 266 (3d Cir. 2011). There, the petitioner, Rodov,
pleaded guilty to aiding and abetting wire fraud and
stipulated in his plea agreement that the losses exceeded
$120,000. Id. at 268. When the government tried to
remove him, Rodov argued that the loss fell short of
$10,000 because “the plea agreement specifically
identifie[d] as the basis for his conviction only a single
KHALULYAN V. GARLAND 13
specific transaction”—accepting a fraudulent check—“in
the amount of $6,447.” Id. at 275.
The Third Circuit rejected this argument. It reasoned
that the petitioner pleaded guilty to “aiding and abetting the
entire scheme,” not merely a “single discrete act of
accepting a $6,447 transfer.” Id. at 276. Because Rodov
pleaded guilty “to aiding and abetting the whole of a large-
scale criminal endeavor,” the § 1101(a)(43)(M)(i) loss
calculation could account for all $120,000 of Rodov’s loss
stipulation in his plea agreement. Id.; see also Khalayleh v.
INS, 287 F.3d 978, 980 (10th Cir. 2002) (holding that the
$10,000 threshold was met because “[t]he ‘offense’ of
conviction was the entire scheme charged in Count Two of
the indictment” and “the ‘loss’ to be measured is the loss
resulting from that scheme”).
Similar logic applies to Khalulyan’s conspiracy
conviction. Khalulyan did not merely plead guilty to his
individual conduct of blocking the view of gas station
attendants; he pleaded guilty to entering the unlawful
agreement that was the basis of the conspiracy. See Doe,
659 F.3d at 276. Properly understood, the agreed-upon
sentencing enhancement reflects losses attributable to the
“skimming device” scheme’s co-conspirators acting in
tandem—all of whom were charged in the same indictment
based on the same facts for the same conspiracy. As the
government points out, although Khalulyan was charged as
part of a 20-count indictment and pleaded guilty only to
count one, the remaining counts do not contain any
additional facts beyond what is set forth for the conspiracy
charge. Because Khalulyan’s plea agreement admitted all
the relevant facts contained in the indictment, the BIA
correctly concluded that the § 1101(a)(43)(M)(i) loss
calculation should account for the losses tied to the
14 KHALULYAN V. GARLAND
conspiracy that formed the count of conviction. See
Nijhawan, 557 U.S. at 42.
B
Khalulyan makes three other arguments, but they are
not persuasive. First, Khalulyan claims that his case is
more analogous to Alaka v. Attorney General of United
States, 456 F.3d 88 (3d Cir. 2006), Obasohan v. United
States Attorney General, 479 F.3d 785 (11th Cir. 2007),
and Rampersaud v. Barr, 972 F.3d 55 (2d Cir. 2020). But
Alaka and Rampersaud involved fact-specific inquiries into
whether particular loss amounts were sufficiently tethered
to the offenses of conviction. Neither case involved
conspiracy convictions. These cases are thus inapposite.
The Eleventh Circuit’s decision in Obasohan is also
distinguishable. In that case, Obasohan pleaded guilty to
one count of conspiracy to produce, use, and traffic in
counterfeit access devices. 479 F.3d at 786. But the
indictment alleged that the conspiracy involved only one
unauthorized transfer of a credit card, which the
government acknowledged had led to no financial loss. Id.Nevertheless, the district court later ordered $37,000 in
restitution based on Obasohan’s fraudulent use of other
credit cards. Id. at 786–87. The BIA then found that this
amount satisfied the $10,000 loss threshold in
§ 1101(a)(43)(M)(i). Id. at 787.
The Eleventh Circuit disagreed. It did so in part on the
ground that the elements of the conspiracy with which
Obasohan was charged did not require any loss amount to
be shown. Id. at 789. This part of Obasohan is no longer
good law after the Supreme Court’s decision in Nijhawan,
which for the $10,000 threshold element rejected the
categorical approach and held that the “circumstance-
KHALULYAN V. GARLAND 15
specific” approach applies. See Nijhawan, 557 U.S. at 33(specifically identifying Obasohan as the among the circuit
court decisions that had applied the categorical approach to
the loss amount element).
Obasohan also went on to explain that the $37,000
restitution order did not satisfy § 1101(a)(43)(M)(i)
because “[t]he restitution was not based on the conspiracy
charge to which Obasohan pled guilty, nor on the overt acts
to which Obasohan admitted by pleading guilty.” 479 F.3d
at 789 (footnotes omitted). Instead, the restitution order
“was based on additional conduct” that was not “tethered
to convicted conduct.” Id. at 789–90; see also id. 790(explaining that there was “no basis” to conclude that “the
restitution order was based on convicted or admitted
conduct”). That is not what we have here. There is no
reason to believe that Khalulyan’s $250,000 loss
enhancement stipulation was based on anything other than
the conspiracy to which he pleaded guilty.
Second, Khalulyan argues that the BIA erred in relying
on the loss stipulation in his plea agreement because the
stipulation could encompass “potential” losses in addition
to “actual” ones. But we have previously held that
“[p]otential or intended losses can satisfy” the $10,000
threshold for conspiracy offenses. Li v. Ashcroft, 389 F.3d
892, 896 n.8 (9th Cir. 2004), overruled on other grounds by
Nijhawan, 557 U.S. at 33; see also, e.g., Rad v. Att’y Gen.
U.S., 983 F.3d 651, 670 (3d Cir. 2020) (“Today, we join the
Second Circuit, Ninth Circuit, and Board in recognizing
that a conspiracy or attempt to commit fraud or deceit
involving over $10,000 in intended losses qualifies as an
aggravated felony.”); Ljutica v. Holder, 588 F.3d 119, 126
(2d Cir. 2009); In re S-I-K-, 24 I. & N. Dec. 324, 327
(B.I.A. 2007).
16 KHALULYAN V. GARLAND
Third, Khalulyan maintains that the government did not
meet its burden to show loss exceeding $10,000 because
there is no indication that the district court in Khalulyan’s
criminal case has ordered him to pay restitution. This
argument is beside the point. Although a restitution order
can be sufficient evidence of a loss exceeding $10,000, see,
e.g., Nijhawan, 557 U.S. at 43, we have never held that a
restitution order is required before an alien can be removed
consistent with § 1101(a)(43)(M)(i). Nor has Khalulyan
identified any authority supporting that position.
The statute requires the alien to have been convicted of
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). It does not require a court order
requiring an alien to pay that amount. The amount of
“loss” can instead be proven in other ways, as it was here
through Khalulyan’s stipulation to a sentencing
enhancement for loss of more than $250,000. “In the
absence of any conflicting evidence (and petitioner
mentions none), this evidence is clear and convincing.”
Nijhawan, 557 U.S. at 43.
* * *
We hold that the government carried its burden of
showing that Khalulyan’s offense of conviction involved
losses exceeding $10,000. Because Khalulyan’s conviction
is an aggravated felony under §§ 1101(a)(43)(M)(i), (U), he
is removable under § 1227(a)(2)(A)(iii). For these reasons
and those set forth in our accompanying memorandum
disposition, the petition for review is
DISMISSED IN PART AND DENIED IN PART.