                           NOT FOR PUBLICATION                           FILED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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