is the this is an aggravated felony charge based upon fraud or deceit the statute is that arrest tool to a five point four six three using the personal identifying information of another problem is that if we use the dealer categorical approach there is no match in the elements between the states that shoot and the generic offensive broader just seen as this court  point four six three and that statute in the state statute only requires that you use the personal used the personal identifying information other to either for unlawful purpose or to harm or injure and none of that requires that the person identifying information be acquired by fraud he acquired by deceit or that the mechanism by which that identifying information is used is fraudulent or deceitful it can somebody use personal identifying information to harm someone else without fraud or deceit absolutely can you give me an example well perfect example is what's charged here i don't authorize transaction that's the substance of the charge but person was only authorized to transfer certain sums of money as an employee of the business she went beyond the authorization this actually requires more than that and if it's harm or injury it doesn't say that it moving beyond that to a modified categorical approach however given what she pled to given what she stated at her i don't filter people who we know a little bit more than just of the statute might provide i can understand theoretically under the statute  point but given that this was in fact a plea to an unauthorized transfer from one account i'm struggling to see how that is not and necessarily a fraudulent act he has she was authorized to make transactions he says she didn't obtain that authorisation by fraud trickery or deceit it was all she made a transaction for all transactions that were not permitted by the employer and and the point has to be made very poignantly here because if there if you really think about it what you're talking about is that this person was a fraud or that there was a lost that they lost some benefit but  statute does not require that in fact that's the point i make if if this fact you did require ten thousand dollars lost in money it would have to be pled and proven and then i would agree with you that there are some there's some mechanism by which she obtained this money that was profitable and or deceitful in fact if you read the amended in from an amended indictment it doesn't say she receives the money it doesn't say that they lost it's not a requirement in our statute it's mere lack of authorization and the statute doesn't define for us where that money has to go into my client's pocket person or somebody else's pocket household let me let me read to you count  out of the nevada ain't and did you said they didn't find information to harm said person or for any lawful purpose including the obtaining of credit goods services or anything of value with the name of that person in the following manner to wit by using the identifying information to make numerous and authorize transfers in the total of one hundred seventy nine thousand dollars belonging to and then the name of the company well why do you think that does not answer the saying that if i say to you exactly why don't you take ten thousand dollars from my account you could because you're not much in there but let's just say hypothetically that there was i say you take ten thousand dollars from my account and you take a hundred thousand dollars from my account you suggesting that that's not fraudulent even though i gave you permission to take ten thousand dollars from my account i would say it would be if you lost identification or your identifying information ask me to invest in a certain stock or fun and i did something different and invested in a different stock or that would be a violation of the statute but that's disagree that our staff required that much because it doesn't require so yeah it's a harmful thing and it may have been done somewhat by the state and that probably every criminal offense is somewhat the seat full but if we if we you can't narrow a crime that isn't doesn't have the same elements in it that the generic definition and paint by sea up by going behind it looking at all the presents investigation report by looking at the amended  everything else you don't even get to that point you don't even start analyzing until a jury could find all the elements in the generic definition by a violation of the state statute all the elements if you're not one of the crime by a violation of state statute and i'll just say one thing that one of the primary requirements is there has to be required to be planted in proven in the state statute lost to the victim we don't have a last requirement here and that's one of all the cases that i i cited in my letter we'll have mr house his presentation good morning your honor smith please the court my name is alan housman i mean attorney with the office immigration litigation justice department washington representing the respondent turny general and i believe in this particular case which is a review based upon a conviction for an aggravated felony crime posy council's argument seems to confuse the difference between a conviction under the nevada state action with the status in the building and of the immigration nationality act congress has provided point to the can to the record of conviction and specifically your honor pages four forty six fourth and we set a record of conviction what do you mean ok by that i mean the allocution a transcript ok so you're talking about the colloquy between the judge and that one of the proper documents here is the transcript of the guilty plea and in the transcript was made in pled guilty and then the judge went through a series of questions and as they said his questions were somewhat broader than the elements of the nevada statute itself and she admitted more then was necessary to make out to convict him specifically based upon that page mismanage admitted the following things she admitted that she was employed by the kar she actually used those funds or those funds came into her possession well i we have any evidence of that anywhere else that would be admissible or be considered by this court under the modified categorical approach yes your honor i think i would submit that he decision information of the chain from the pre sentencing report and the pre sentencing report then goes on in a narrative fashion are is the court authorized to use the pre sentencing report in making th acted properly in considering the content of the pre sentencing report and why is that one is the reason that the board clearly states it says it's a waiver argument it's a waiver explanation the board said that in the record of conviction the petitioner expressly waived expressly indicated that the pre sentencing report could be utilized and relied upon and so you are you do you have any case law cites rights and i will speak to that but but just as to your honor phrase the question i would make comment on that itself and that's your honor expressed the view that if the petitioner does not object and i think what the board cited in this case was not a that i think that there are two places prior criminal history you know things i think they're there to get to places in the in the record in the documents associated with the conviction where the p s r is mentioned one is at page four thirty four that's the transcript in which counsel which the judge asked if we can if we can use the pre sentence report and sentence today you know what happened was the past and you say  use it is that what was said yes and you just read that portion of it so question was asked in his instruction and then gets to the point if we can use if we can just use the pre sentence report and sentenced today is that right that is the misuse of presently going to find information and pre sentencing report was prepared at the time of the entry of the theft offense a guilty plea and none was prepared at the time of the guilty plea to the personal use and so the court was saying may we use the existing pre sentencing report that had previously been prepared for the guilty plea on the theft they said if if we use it and i'm that's why i'm interested to hear what the council correct your honor and miss sara go so the prosecutor said that's correct your honor i believe the one from this case was dated february twenty fourth two thousand and four so that's correct so what the judge said if we can use  it didn't say he would he would accept a guilty plea and go forward to the sentencing if they could use the pre sentence report that the court already had that had been you have to invent it's a rather ambiguous a well we where it's not ambiguous narrowly can find in other words it's ambiguous for them meaning you're trying to get an order see a story about what they're saying yes do we have to make up brand new increased sentence report because we're having a new police and they say no you don't have to make and but i don't know that that gets us anywhere in the modified categorical approach it's not a consent for that use in addition is managed if something else with respect to the pre sentence report at page three zero seven of the administrative record for the r two thousand and three the defendant ways and effect in pleading agrees to pay full restitution the state has agreed to retain the right three argue at sentencing and both parties agree to use the pre sentence investigation report dated for  twenty fourth two thousand and four those of the two references to the pre sentence report now the board looked at this record and it reached the conclusion that the petitioner had agreed to the use of the that's three zero seven or third one hundred eighty five and for the proposition that under the circumstances of this case specifically page level ninety one under the circumstances of this case and that is how the pre sentence report was used the ninth circuit allows the board to consider the pre sentencing report writing a decision on basically we appreciate your presentation will give this gonzales one minute to re found anywhere in nevada presents investigation report as in most states i'm a criminal attorney so i know this by statute there has to be a present investigation for port report prepared prior to any sentencing all they did was look remodify in the conviction the pre sentence investigation report is going to be used simply for sentencing purposes remember the analysis here is conviction based not fact based that's the principle of law that doesn't allow us to use prince presents investigation report we don't care about the fact we're not involved in a fact based analysis we're involved in a conviction based analysis all that should be very clear  hate this i hate this stuff you hate stuff you but more of the pre sentence report he says i did there was never any loss to the victim thanks for getting that it just ok i think we appreciate your presentation of the case of manning versus