Arman Khalulyan v. Merrick Garland, 63 F.4th 1207

Khalulyan pleaded guilty to count one of a 20-count indictment charging conspiracy to possess 15+ unauthorized access devices (skimming credit/debit cards at gas pumps) under 18 U.S.C. § 1029(b)(2).
In his plea he admitted acting as a lookout and participating in installing skimmers; co‑conspirators were later found with hundreds of encoded blank cards and device-making equipment.
The plea agreement included admissions of 10+ victims and a sentencing stipulation applying a 12‑level enhancement for a loss of more than $250,000 under U.S.S.G. § 2B1.1(b)(1)(G).
DHS initiated removal proceedings; the IJ and BIA held the conspiracy conviction was an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i) (fraud/deceit with losses > $10,000) and ordered removal.
Khalulyan argued the government failed to prove he personally caused losses exceeding $10,000 and that the plea/sentencing documents did not tie a >$10,000 loss to his conviction.
The Ninth Circuit held that for a conspiracy conviction the relevant loss is the loss attributable to the conspiratorial scheme and that the plea’s >$250,000 sentencing enhancement sufficed to meet the >$10,000 loss threshold, so Khalulyan is removable.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Proper loss measure for a conspiracy conviction	Khalulyan: government must prove how much loss he personally caused	Government: loss tied to the conspiracy as a whole is the relevant measure	Loss tied to the conspiracy scheme; no need to parcel loss among co‑conspirators
Sufficiency of plea sentencing stipulation to prove loss > $10,000	Khalulyan: stipulation doesn’t necessarily reflect the loss tied to the conviction	Government: the stipulation is admissible and tethered to the conspiracy count	The plea’s >$250,000 enhancement is sufficient evidence that the conviction involved > $10,000
Whether intended or potential losses qualify	Khalulyan: stip may reflect potential, not actual, losses	Government: intended or potential losses may count for conspiracy	Intended or potential losses can satisfy the $10,000 threshold for conspiracy offenses
Whether a restitution order is required to prove loss	Khalulyan: absence of restitution undermines government’s proof	Government: restitution is not required; other admissible evidence suffices	Restitution is not required; other evidence (e.g., plea stipulation) can meet clear and convincing proof

Nijhawan v. Holder, 557 U.S. 29 (U.S. 2009) (establishes circumstance‑specific inquiry for the $10,000 loss element)
Kawashima v. Holder, 565 U.S. 478 (U.S. 2012) (distinguishes categorical approach for elements from circumstance‑specific inquiry)
Doe v. Attorney General of United States, 659 F.3d 266 (3d Cir. 2011) (plea to a scheme permits using stipulated total loss rather than a single transaction)
Pinkerton v. United States, 328 U.S. 640 (U.S. 1946) (co‑conspirator liability for reasonably foreseeable acts in furtherance of a conspiracy)
United States v. Hernandez‑Orellana, 539 F.3d 994 (9th Cir. 2008) (applies Pinkerton liability principles to conspirators)
Orellana v. Mayorkas, 6 F.4th 1034 (9th Cir. 2021) (courts may consider any admissible evidence; loss must be tethered to the conviction)