well i think the question is you have you cite cases that might go the other way and so the question is is this the correct way to look at it in terms of it will all end up in the same place growth history showcase that was my second possibility well that seems pretty on point because the question is in the crew's case it was sort of a no harm no foul situation because you had the same criminal history category in the end i know you think that there is a possibility the judge might have even gone lower but i'm trying to find some authority for that i will confess that my research following the court's order has not turned up a case on point on this is all right so all i can tell you is the defense had made an argument that it should be two and it should be lowered out to say well there's no way he would he would lower down to one i think it's possible he he may say yes he may say no but i don't think in the partial that we have a as a judge that i am calculating a three but then i'm going down to two because the thing that's overstated i frankly things that one of the court was doing was a variance even though the court had used a language that sounds like a departure was in the guidelines but i believe there is a case in the circuit that encourages judges to use incorrect in starting out at category three before even making that discretionary departure down to two i think if it was a court concludes that it's in there it should go down for that reason as well and to give an opportunity to decide whether he would go down to one or not it's a relief we asked for and if the ninety eight deal i ages out all he has is one u i for which he completed probation so there is a i would say a reasonable argument that he could be treated as somebody who has criminal history category one and i think judge should have an opportunity to consider that a show over that's a different argument now why is why is the white  treated as category history one well because if if the court was incorrect and assigning a category three right that would make it too it would mean to you and all that you would be well i mean i think what i'm trying to get at perhaps on in artfully is that the judge went from three to two because he saw the ski he's got his history was overstated i'm saying that he would have made the same conclusion if he was a two trying to get down to you're right you're right i did and that's and that's the way that the judge made the judge the sentence so what's the problem the problem is that he only got there by concluding that the history is overstated right that to me seems like the variance down not a guideline calculation well it there may have there may have been there may have been a mistake there but but he got to the right category so where's where's the book where's the where's the error if you made that if you gave your client a sentence based on the correct category even if he sort of got there for the wrong reason well i think he should have been one we argue that should be a one based on their points at the time he got but you've admitted that he's not legally obligated to write a category not he's not legal it's an absolute i open a prayer that if it goes back the judge would say well let's go even further that's really your are great right that that that is exactly what are you have what i would use the words hope and prayer but something even stronger well why don't you proceed then with whatever other issue you want to address i wanted to talk about them out of last year's show which really has two components a one is a sort of a smaller issue that was found in the m and t account now those two arguments work in pan them in the sense that the only the only way that the guy lang calculation would briefing and all i'm arguing is this should not be a waiver number one because counsel that object i know he was late he admitted let's listen let's assume that it wasn't waiver that it's forfeiture and therefore the plane it would be plane air or ground it because if we look at the offer of proof that that the prosecutor made at the last sentencing hearing she said that there is evidence that a swiper was found in my client's house and the prosecutor also alluded in sort of a gentle way to the l a one victim impact statement which is a different laws and all the swiper or even some of the trial document of the government has cited all that establishes is there is a business relationship between my client and then there's what there is i believe no evidence often even if we assume that the offer of proof is true is that when there was a victim of the same type of fraud that let's say this case and i don't see any evidence of that here so you know there's also no evidence substantiating the amount but i think that's more of a secondary issue i think a more fundamental problem here is that there is no evidence that they were victims of the same type of fraud that my client was convicted a separate question as to count twenty one they are generally fraud ok out what practical difference would it make if we were to reverse the conviction on count twenty one probably not frankly because i think it might make a difference is there are thirty five fifty three of the judges look at how many cows he was convicted off so that might you know it's a discretionary factor it might make a difference if he is he stands convict the one count not  then there's something that makes enough difference that i should pay some attention to it can you give me any argument in a judge can considered this question and among other things you say as well the use of the identity from the driver's license was really continuous throughout because it formed the premise for their time for cation and then the continuation so how do you respond to that i mean judge answered several things but that's the last thing you said how do you respond right first of all i could find no support for the propositions that  identity theft is a continuing offense that's i guess that's one response number two is i believe the statute requires the identity theft to be contemporaneous with temporally with the ma right the government has argued that well you know it continued the idea was continued to be used when he applied for chase payment that swiper top ten account was in my response to that would be there is no evidence that it made any difference for them whether he had a virtual office or not because if you look at the application he lists his name telephone number and contact office address in san francisco so he's not trying to hide himself or what  then if there is another variation on the theme that we wouldn't call continuous identity but where the identity is in fact invoked at the time of a transaction i mean it might have just been in the file but you need in effect absent that identity you couldn't invoke it and have a transaction well and that's kind of what happened here it's i'm wondering if bad actually is contemporaneous because absent that information in the file you wouldn't be able to proceed with this transaction well i don't i don't think there is any testimony from the chase payment tech people that this made any difference to them at all as to was or not the virtual office s or not or what kind of business he is but the the actual the actual act of a fraud was using his then girlfriend now then later wife no ex wife's driver's license to set up response of governments are when i can find it so as far as i can read the record once the account was set up i can see no connection between i think there is evidence that the application is kept on file however correct right i think i think they said that they keep it in order to have a contact information if somebody doesn't pay their bill right but it's sort of a one time give us the life right make a photocopy and stick it in file right i don't think there was any evidence that he had they had to re redo it on the green do it or be right provide another copy or an updated drivers as far as i could read the record now so your view is it just sitting in the file is not enough because it doesn't make it contemporaneous right and i go back to what i said i don't think identity theft is a continuous offense it's more of a poor pair act type of a deal where you would you know you used to try and service x or you did it to take out the money why so it's not charged it continues course of conduct charge on the good afternoon it please the court my name is mary jeanne chan and i represent the united states in this appeal this court should affirm the conviction at issue as well as the sentence first of all there was sufficient evidence to uphold count twenty one ten twenty eight a simply requires that the identity theft be during and relation to a felony when that felony is wire fraud part of what wire fraud is and what constitutes the felony is the scheme to defraud and so here there is no way he ended up using this completely fraudulent and it is that well that that just that just feels that just feels completely circular well it is evidence there is any hard evidence at the time he said a j m a he knew that at some point in the future perhaps several years which is what it turned out to be sure that he would engage in a wire fraud and that's why he needed the j m a yes well the evidence is that he didn't use any actual he didn't use his own name in setting up g m a yeah that's the that's the i identity fraud right but that's part of it which is that it was part it was the foundation for the scheme and this was the charge see well if i found it certainly if this were just in relation to you wouldn't you would have in this discussion of california driver's license in two thousand and eight occurred during that period of time then it was clearly during that school to defrost i don't know what happened in two thousand and seven and two thousand and seven mr murray started to go daddy domain for from four to begin with us so so during the scheme we have we have the entire seems to the question of whether what did what what wire fraud actions occurred in two thousand and seven in two thousand and seven it was the scheme to defraud that began so the question is a tell me what he did with respect to a wire fraud in two thousand and seven somewhere every other felony i believe the question is if the wire fraud is complete just based upon the transmission or if it also requires a scheme to defraud an element of wire fraud is the scheme to defraud so you don't have a wire fraud unless you also have the scheme to defraud you simply have a wire transmission and so to really narrowly defined do in two thousand and seven to begin the wire fraud i believe it is just j m it is now coming up it's all right all you have is the circular argument i don't believe that it is circular i think it is good evidence of what this scheme to defraud was so i do believe that it is part of it and i think the question here is if we're talking about wire fraud does wire fraud as defined for purposes of ten twenty eight a is that limited to the few seconds on january twenty seventh two thousand eleven or february first for which the wire transmission is made or does that include i sleep on it for i'm confident counselor that you could tell me things that he did before that why are transmission that would that intricately related to the wire fraud and that would be quite independent of j m a well a lot of it is based upon that was the foundation that was the pyramid of this because that was the sheen of legitimacy so for example payment tech the terminal that was applied and this goes to sort of the secondary argument that judge chen actually made his rule twenty nine denial based upon was that if you look at the application for payment tech to get the terminal for which the credit card was fortunately swiped that uses the address that was allocated by virtual process payments so the wire fraud counts one through four are premised upon this lie which is that in order to get the virtual office they had to have an account and they had to use it they had to what  page sixty four through sixty eight he explained that brandywine required a government photo id to help us track down clients that don't pay their bill this is not a one time thing it's not just when you start and open up the virtual office then you need the id you need it throughout the period of time in fact it actually doesn't make sense to not have this because people stop paying bills and they become delinquent throughout the maintenance of an account not necessarily at the very beginning so there is evidence and it was evidence that was sufficient under the very lenient and deferential standard of sufficiency of evidence to sustain judge since finding that even any errors if you with respect to the jury instruction was it anything more than the recitation of the statute on this segment no it wasn't anything more and i think that's a very important point to your honor which is that murray didn't ask for another definition he didn't ask for a definition of during that would limit it simply to the wire transmission as opposed to the scheme and this was actually debated in closing argument the government made an argument in closing argument that during the entirety of the scheme which is part of wire fraud it is an essential element you cannot find wire fraud without finding a scheme to defraud as charged here it was span two thousand and seven through two thousand and fourteen what murray argued was that no during isn't satisfied unless it's during the wire transmission so how can you have something that was used in two thousand and eight be during something that happened in two thousand and eleven so this was something that was are used in closing arguments but murray never asked never asked for a jury instruction on this and he's trying to sort of wedge it in into the rule twenty nine sufficiency question i suppose you could logically extend that argument to say if you open the account the week before it might be in relation to but it's not during because it's not on the same day that you made the wire transfer right exactly your honor so they're asking for a very very narrow definition of ten twenty eight that would essentially require you to actually use the identity let's say through submitting the form in the wire and i don't think that there's any suggestion that congress intended such a narrow definition of of the crime and then you transmit by wire that's part of the crime wasn't part of the crime is when you get both you have the completed crime correct and your argument is well if it's part of the crime and that how that earlier part of the crime happens supports this because it found that thirteen twenty six is a continuing offense just like wire fraud is it starts when you illegally re enter the country but it doesn't include until you have been found to be in the united states just like fraud it starts with the scheme to defraud it doesn't necessarily include or complete until there's actually a wire transmission and in that case this court found that even though the defendant had committed a crime prior to being found in the united states since it was subsequent to his illegal entry to the united states that was considered to be during his offense of thirteen twenty six so similarly this court should find that in the context of wire fraud that because the defendant used the the identification subsequent to beginning the scheme to defraud even that was prior to the wire transmission although we think that there is evidence that it was during the wired transmission as well that that would be during the wire fraud in satisfaction two hundred twenty eight so we think that there are two bases for this court to affirm the district court's finding on sufficiency if i can move on to loss the loss i'm handsome an under to be one point one was appropriate that my opponent didn't really talk about the one point eight million offset and we would submit that the one point eight million should not have been offset and it could not have been upset under application no three of the guidelines section two to be one point one which says that you can only credit money that's been returned to the victim before the offense was detected in this case the victims lost that one point eight million dollars because murray never returned that money to them so from the perspective of the victims they lost it and for calculation of loss that should not be offset once that is not in play then the narrative aleutians last really is just even if it were a problem it's harmless and we would argue that it was not plain error by the district court to find us first of all the standard is proponents of evidence so the court merely had to find by a preponderance of the evidence that so lucian's loss should be included here we have that we have something that was very close in time to the payment tech we have some situation that was almost identical to the payment tag which is that murray applied under j m a which is a completely are solutions for a credit card terminal and then use those credit card terminal to make charges and then also have charge backs so we have the and we also if you look at the supplemental excerpts of record that were submitted by the government at seven seventy nine for example you have checks that show that in their us was used in this way so there was no no problem i believe on that aspect going important just to clarify that mr murray had four points criminal justice points if you look at the p s are at paragraph sixty eight you see that he didn't have he had one point for each dui so that's two points and then he had an additional two points for committing the instant offense while under a criminal justice sentence for one of the duis so he had four points even if you discounted both of the duis taking away both of his criminal history points you would still have two points that leaves you at criminal history category two so even if the district court completely discounted his entire criminal history except for in terms of the points and only looked at the fact that he had committed the instant crime while on sentence from the second most recent dui conviction which is not at issue here you'd still have him in category two there's nothing in the record that suggests that judge chen went down to category two from category three for any other basis than the fact that duis are while serious crimes not such a significant crime compared to some other crimes that might be considered qualifying for category three counsel on with respect to the count twenty one i understood counsel maybe i misunderstood him to say that but he wasn't sure that even if we vacated on count twenty one that would make any difference it wouldn't make any difference except on the thirty five fifty three a factor which is that the district consider that ok so i think that's right there were a number of other issues that were raised by the defendant in his briefing  if the court has any questions on those i'm happy to address them otherwise i ask this court for an affirmative thank you thank you but it's a minute back used up all your time but i will give you some additional time one minute that congress knew that and they deliberately chose to say during and in relation to as you said before if all the congress wanted was to to make sure that it's in relation to  point in response to i believe because concern about well agreeing with us on the interpretation of ten twenty eight would mean that there is a very narrow window under which our go better than any separate apply my response would be to that would be that there is an aggregate as there is an identity theft statute on the books which does not require matching the underlying felony and then is that the that crime is there on the books i think congress was trying to address a very specific to show so it's quite possible that they wanted to address it in this very in their own way and there is nothing in the law or in the legislative history that would lead to a contra conclusion so i don't think that should be a problem and  there were other questions thank you thank you both for coming and for your argument the case just argued of us the murray is now submitted we also submitting stevens versus jiffy lube and conclude for the afternoon th