NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 22 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50052
Plaintiff-Appellee,
D.C. No.
v. 2:12-cr-00446-BRO-1
VAGAN DOBADZHYAN,
MEMORANDUM *
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Beverly Reid O’Connell, District Judge, Presiding
Argued and Submitted February 8, 2017
Pasadena, California
Before: SCHROEDER, DAVIS,** and MURGUIA, Circuit Judges.
Vagan Dobadzhyan appeals the district court’s sentence of 48 months in
connection with his guilty plea for conspiring to commit bank fraud, in violation of
18 U.S.C. §§ 1344 and 1349. We have jurisdiction pursuant to 18 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Andre M. Davis, United States Circuit Judge for the
U.S. Court of Appeals for the Fourth Circuit, sitting by designation.
§ 3742(a) and 28 U.S.C. § 1291. We affirm.
1. Dobadzhyan first argues that the district court erred in its loss
calculations. “A calculation of the amount of loss is a factual finding reviewed for
clear error.” United States v. Garro, 517 F.3d 1163, 1167 (9th Cir. 2008). In
cases, such as this one, involving altered or counterfeit instruments, U.S.S.G. §
2B1.1(b)(1) sets increases in criminal offense levels based on the amount of loss.
A district court must “make a reasonable estimate of the loss.” U.S.S.G. § 2B1.1,
cmt. n.3(C); see also United States v. Torlai, 728 F.3d 932, 938 (9th Cir. 2013). A
court may impose a charge of $500 per counterfeit access device number.
U.S.S.G. § 2B1.1, cmt. n.3(F)(i); see also U.S. v. Yellowe, 24 F.3d 1110, 1113 (9th
Cir. 1994). To apply the $500-per access device enhancement, “the Government
ha[s] to prove the usability of the expired credit card numbers by a preponderance
of the evidence.” United States v. Onyesoh, 674 F.3d 1157, 1159–60 (9th Cir.
2012). Dobadzhyan also argues that the government must prove that Dobadzhyan
intended to use the numbers.
We conclude that district court did not err by adding $643,500 to the total
amount of loss based on the 1,287 access device numbers found on the computer
recovered from Dobadzhyan’s home. The government’s expert testimony
adequately explained that even expired credit card numbers are usable. See id. at
1160; see also United States v. Onyesoh, 549 Fed. Appx. 700, 701–02 (9th Cir.
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Dec. 13, 2013), cert. denied, 134 S.Ct. 1913 (2014). And circumstantial evidence
demonstrated that Dobadzhyan owned the computer at the time the access device
numbers were copied onto the computer and that Dobadzhyan had access to the
numbers. Therefore, we conclude that the district court did not clearly err by
finding that Dobadzhyan intended to use the usable access device numbers.
2. Dobadzhyan also argues that the government waived its ability to seek a
breach of the plea agreement and was estopped from seeking a breach of the plea
agreement because the government demanded Dobadzhyan’s forfeiture payments
even after it knew that Dobadzhyan had already breached his plea agreement.
There simply is no authority for the notion that the government is required to
declare a plea agreement’s breach immediately or within a certain amount of time.
A “party asserting equitable estoppel against the government must [] establish that
(1) the government engaged in affirmative misconduct going beyond mere
negligence; (2) the government's wrongful acts will cause a serious injustice; and
(3) the public’s interest will not suffer undue damage by imposition of estoppel.”
Baccei v. United States, 632 F.3d 1140, 1147 (9th Cir. 2011). The government did
not engage in affirmative misconduct or cause serious injustice. The district court
therefore did not err by rejecting Dobadzhyan’s waiver and estoppel arguments.
3. Lastly, Dobadzhyan argues that the district court erred in its application
of the three-level enhancement made pursuant to 18 U.S.C. § 3147 and U.S.S.G. §
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3C1.3. The panel lacks jurisdiction over this claim because it is a challenge to the
sentence imposed for a different offense, and Dobadzhyan voluntarily dismissed
his appeal of that sentence. United States v. Arevalo, 408 F.3d 1233, 1236 (9th
Cir. 2005) (“[O]nce an appeal is voluntarily dismissed, appellate courts no longer
have jurisdiction over the merits of the appeal.”). In any event, the district court
clearly intended to impose a total sentence of 72 months for the two offenses at
issue. Therefore, even assuming the district court committed an error that we can
review, the error was harmless. See United States v. Booker, 543 U.S. 220, 268
(2005) (stating that the harmless error doctrine applies to sentencing issues);
United States v. Cantrell, 433 F.3d 1269, 1280 (9th Cir. 2006) (concluding that an
incorrect application of the Sentencing Guidelines combined with a showing that
the error was not harmless will merit remand).
AFFIRMED.
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