"California law provides that a restitution order in favor of a government agency shall be calculated based on the actual loss to the agency." In considering a California welfare fraud conviction, the Ninth Circuit cited California Penal Code 1202.4(f) (providing that a victim of crime shall receive restitution directly from a defendant "in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court") and People v. Crow, 6 Cal.4th 952, 954-55, 26 Cal.Rptr.2d 1, 864 P.2d 80 (1993) for the proposition that under California law, a restitution order must equal the loss to the victim. Ferreira v Ashcroft, 390 F.3d 1091, 1099-1100 (9th Cir. 2004).      To be sure of avoiding an aggravated felony conviction, counsel should get a Chang v. I.N.S., 307 F.3d 1185 (9th Cir. 2002)-style written plea agreement to plead guilty to a count (say, one month of welfare) in which the loss to the victim is set at $10,000 or less. This distinguishes Ferreira so it is not completely on point, but leaves open the possibility that immigration or federal court would feel the second distinguishing feature identified by Ferreira - the assertion that under California law restitution equals loss to the victim -- would be sufficient to distinguish Changs result and find that the conviction is an aggravated felony. The following are initial suggestions.      (1) If a plea can be put off until the person pays back enough of the money so that the plea agreement can reflect a loss to the victim and restitution payment of under $10,000, the court would not order restitution in excess of $10,000, and the record of conviction would not establish the conviction as a fraud aggravated felony.      (2) Sometimes judges order restitution "in an amount as determined by probation." See California Penal Code 1202.4(f) ("If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court." See also People v. Lunsford, 67 Cal.App.4th 901 (1998) (restitution order directing agency to determine amount of restitution was enforceable, where proper amount of restitution could not be ascertained at time of sentencing.)  Defense counsel can insist that in return for a plea, the amount of restitution shall be determined by the probation officer. It is at least arguable that the subsequent determination by the probation officer would not be part of the "record of conviction" and not be reviewable in a subsequent immigration or federal proceeding.      (3) Except for a specific statute covering a specific type of fraud, many crimes involving fraud or deceit might possibly also be considered theft offenses in that someone is deprived of property. A plea to the first clause of California Penal Code 484 "... who shall feloniously steal, take, carry, lead, or drive away the personal property of another" does not have fraud or deceit as an element. If restitution was ordered in an amount exceeding $10,000, for a conviction based on the first clause of Penal Code 484, there would be no fraud aggravated felony, provided no sentence of one year or more was imposed.      (4) To avoid an aggravated felony for crimes of theft with a sentence imposed of one year or more, a defendant can plead to Penal Code 484 "in the exact language of the statute" or simply add a new count to the complaint to state merely "violation of Penal Code 484" without any other verbiage. Under United States v. Corona-Sanchez, 291 F.3d 1201, 1207-08 (9th Cir. 2002) (en banc), this would not be an aggravated felony even with a sentence imposed of one year or more because it is overbroad. To the extent that the charge to which a plea is entered alleges the separate clauses in the statute in the disjunctive, a defendant could even be ordered to pay restitution of $10,000 or more, and this would not be an aggravated felony.       (5) If a civil suit had been brought, a restitution order in a criminal case could provide that restitution would be paid according to the civil suit settlement.      Thanks to Kathy Brady and Michael Mehr for this analysis.