fox i'm going to begin with the sentencing issues on last your honour's have a different preference obviously the whole point of the guidelines if they still exist after the supreme court ruled on them is that similarly situated defendants should be treated similarly a corollary of that is what underlies the sentencing arguments in this case it's differently situated defendants should be sentenced and treated differently the first sentencing argument is that in fact that's what section to be one point one b ninety gotz that it distinguishes between the categories that finance new credit cards and the category of defendants to get copies of existing credit the second sensing argument is that section two be one point nine three nine speed does not distinguish between those categories of defendants the difference between is one they could justify downward departure that seems well i'm skeptical so maybe you better explain not just getting some new credit line but also getting you know duplicate copies of the world war that the language is a little sparse on that but the comment to it seemed to cover the commentary of the court course referring to the commentary well the commentary actually going right thoughts of there was this new act that was passed by congress which has about the identity theft and prevention act or whatever the exact title was and what congress was concerned about there and what the commentary recognizes that with congress was concerned about and what the sentencing commission's explanation of the amendment recognizes congress was concerned about was this concept of reading credit cards and what reading credit existing credit card you find out about it pretty much right away because it's on your credit card statement for the credit card you already have you call a bank you say this isn't my charges and it doesn't show up on your credit report because it's acknowledged by the bank it's not your charge and whether or not that i think it's pretty clear that that's what congress and the sentencing commission had in mind and the problem with the former is all the sudden you're out there find your home while you're in the middle of escrow and you don't get home on the whole deal falls through as opposed to the latter where you simply have to call your credit card company say this is in mexico get the car you'll see it's not my signature and so on for better i'm still not finding the in my memo the language of that i was thinking of from the commentary individual's name social security number or form or other form of identification to breed new or additional forms of identification or that there are many new or dismantle why i wasn't getting them additional card here well i guess you could read it that way but i figure if you go on to their discussion of the harms that they're concerned about then they talk about exactly the sort of things i'm talking about a damaged credit rating or an inability to obtain a long that doesn't happen if it's on your argument is that that commentary and of course commentary isn't just legislative history it's just as strong as the guidelines unless it's directly contradictory at that cometary tells us that this guideline doesn't apply at all but even if it does because you give some weight to the we're principally and say well pensively doesn't limit it so that swings more broadly that kind of thing then it's a classic example of a situation where you are you can have the parker and there's at least three independent arguments that you can make to that effect you can just use the heartland concept concept of the typical case which is of course a a basic principle of the party of jurisprudence well the commentary in the sentencing commission tell you that the heartland of the typical t the amendment says the defendant and i give the unit in an identity theft case typically has exclusive control over the brad means of identification making it difficult for the individual victim to detect that the identity has been st so we actually have on the record for indicating that if it was up to her she would have given him some jail time but not as much but the sentence he got was a year and a day he's on bond so we don't have a situation where he's already served it should  i don't see any reason for the court to decide it before the supreme court issues his this is a book or an fanfan if that and i certainly ask for an opportunity to do supplemental briefing it seemed appropriate i'm obviously arguing this in the context of if those cases leave the guidelines surviving there or there were major factual arguments made about both this and the last pacific offense characteristic that i think under am line would require reading and because they certainly there were  disputed facts that weren't decided by a jury that made the range that high of both this one and the last there was a dispute about whether the last was over under seventy thousand dollars so there's certainly some am whining playfully slash booker's last fanfan issues out there i see i'm running out of time i try to cover the departure argument the other theories about the parcher and the search using my brief so maybe i'll reserve the rest for a vot it please the court beyond two camphor the united states the sentencing commission could easily have drafted the guideline provision that's just been discussed to be one point one three nine  to cover it in a way that that reflects what the defendant is arguing that it actually says which it does not they could have said instead of the guideline applying to you offenses where means of identification is used to obtain any other means of identification they could have a written that guideline to apply where to read any new means of identification or any other means of identification that didn't exist previously or that was not known to the victim but the sentencing commission did not adopt any of those alternatives instead they adopted the broad guidelines language that they adopted which enhancement should apply whenever one means of identification is used to obtain quote unquote any other means of identification and i don't think there's any dispute in this case that under that pla one provision itself before we even get to the commentary the offense conduct in this case does fall under that guideline provision with respect to the commentary  first of all as the judge will quiet it out there is that some ambiguity in the commentary about whether it does apply to a dish replacement credit cards as well as new credit cards second there's the language that the defense facts of this case themselves illustrate how that line is a very difficult one to draw in it demonstrates why the sentencing commission most likely wrote the guy line in a way that made sense to the sentencing commission account had never been used by mr lerner according to the facts of the affidavit and the defendant was able to proceed to incur or make seventeen fraudulent withdrawals so the government would respectfully submit that this is not court realized and knew that it had discretion to depart hence all of its language throughout his or ruling about whether this conduct fell within or outside of the heartland any such heartland analysis would have been unnecessary if the court really believed that it didn't have any legal discretion to depart i counted at least seven times when in the context of analyzing the appropriateness of this  downward departure the court uses the word heartland and i think that that demonstrates that the court of belief that it had discretion to depart but was refusing to depart because it did not think that a departure was warranted  the reason i didn't believe such a departure was warranted was because it found that the offense conduct in this case fell squarely within the language of the enhanced meant provision in this case that we've been discussing  given how long the case has been with the supreme court and given the fact that i think we are likely to receive a decision from the supreme court shortly ok thank you of you could make the argument that i think i would have the discretion to depart if i felt that although technically within this guideline it wasn't within the sort of heartland meant by  it i don't make that finding i i don't find it's outside the heartland i find it's clearly within that so how can you say that he didn't recognize there are here are other things she said w quote as a matter of law i can't agree with that quote given that legal view walk with me as a matter of law it's not outside of the heartland given that legal view it's hard to see how i could have described then i could depart but it could be would be wrong remember the test under this court's case law is that there is some doubt in the record if there is significant ambiguity there should be remain and i would suggest that there's at the very least that here i think what this district court was saying the prosecutor pointed out that she talked about how this is squarely within departure may be warranted even if a specific guidelines linguistically applies to the defendant's actions and she says more than that she says i can't think this application of the guideline quote is so unusual example of where the court authorized the departure because there was a category of cases clearly expressed need covered by the one which is the guideline that had a lesser harm involved in it than another category of cases that distinguish between exce conclude that the court felt it could not make a heartland analysis the best language your honor that i think shows she was not ruling as a matter of this quite discretion but was finding she couldn't depart and that shows her ruling about what this being quote the heartland that quote was really an interpretation of law is basically the language i quoted of pages six and seven in my reply brief i think i could go through and cite that again but i just see repeating within my bri