she's in the she's serving now there's still time to remedy all right thank you we had requested actually bail pending this appeal in hopes that we could get the sentence squared away before she started discussion of whether or not she had factually committed some of the acts that the government ultimately would try to attribute to her for purposes of the calculation most importantly there were nineteen cards that were seized she had gone to a hotel in las vegas a casino  with some confederates she had made a small purchase i believe sixteen dollars i think we know all the facts but you've got a number of mysteries that i'd like to just sort of jump into i'm i'm confident the judges are all familiar with the facts here but on the intended last part of it i sensed a lot of people in my day but i have been sentenced under something like this now you have to sixteen dollar try and then you've got the twenty eight dollars cash advance and about right there although we've got a number of other credit cards and we've got fake i d s and of which i think that you're your client there's pictures with her right a so and it's intended lost it's not actually lost so i guess we could say we don't have a pattern maybe because we only have they only got to try one card but and then you  have their parameters in terms of the five hundred dollar you can call five hundred dollars each card once you can establish the intended to use them so let's assume that because they have all these cards because they have all these i d s that the intended to use them and we do have one transaction why isn't the fact that they did twenty eight hundred dollars the first time as good a guess as five hundred well you were you know i mean i don't know what you know what can we present here when someone gets nipped in the bud you apply the standard that was established by alice and especially after the point in time where the guidelines were changed so that alice and became the law which is to say you have to have a real realistic economic approach if it's important not just all of them i would respect the fact that they hand himself said it was sheer speculation and the government asked for a continuance in order to bring witnesses to establish a realistic economic approach which is what this court as mandated and then they come to the second continued sentencing without anybody with them to support their position and they had filed the night before a memo which attempted to reflect what they believe the potential use for some of the cards were that's not the realistic economic approach that alison was talking about and most respectfully there were two ways to do this you could either say five hundred a card or you could take the average of twenty eight hundred sixteen dollars and you could add them together and divide it by two and come up with a number which i did which comes to twenty seven thousand eight hundred forty two dollars and reached a realistic economic approach to this averaging sixteen in twenty eight hundred in your view would be ok better than say well not better it would be would you concede that that's what that would that would pass muster here if i could be presumptuous enough to say that if i were a sentencing judge yes that's the formula that i would use or i would use the five hundred dollars but i certainly wouldn't pick two thousand dollars out of the air especially after i've already conceded a prior sentencing date that it's sheer speculation to do that ok so i they didn't call anyone like that so in all conspiracies you're not going to have someone in that will come and do that so you're saying we need more of a pattern or we need it we need an average yes or we could follow the commentary which just got five hundred dollars a car but there's got to be some stand or the defendant knows to defend him or herself at the time of sentencing in this case it was this arbitrary figure after the government has specifically said we're going to bring witnesses then moving on to the other reasons why all of the traditional credit card fraud operations that you discussed are already promptly contemplated by the guidelines in calculating the number of victims the loss there was nothing sophisticated in the sense that there was my i'm sorry no i have your own reason in these cases nineteen cars and i know it's not i mean in the fact the government in an effort to try to make it more sophisticated started talking about conspiracies that were never admitted to never played to and not part of the indictment in this case so it's not sophisticated as defined by judged ashima for this court and it's because it's not different i mean she's basically if you're now a judge she's like a mule in a drug case which was one of the cases that talked about sophistication nothing special about how this was done in fact all she does is go to a casino which most people in these circumstances do when trying to use the card there's nothing to suggest that there was anything special about this particular operation and then finally around as with respect to the question of whether or not this was a the use or possession of a device making equipment that on its face earlier there is no way that this is any kind of device making equipment it's false id and it wasn't false id that was used to make more fake cards or licenses it was what it was and then to suggest that somehow she transported one of the fact the government admitted at the time of sentencing that somebody else transported it so it flies in the face of the definition under the guidelines of what's happened here is they try to basically double penalize her for her actions by interposing definitions that do not apply by our calculations your honor she'd be at a level ten we would say that would be four points for the amount of controversy which started as six she'd get two for channel more victims bring it to an eight four for the amount of money and that's a twelve minus two for acceptance and she'd be a ten and potentially judge maint could let her stay at home at this point in time so i would respectfully request your honor that you take our arguments to heart and remand this to judge ma'am with instructions that it's not supplying them to the law when they will take them to heart i can't i can't fancying on standards then handsomeness right that would be my argument your honor and i was going to cite to the court another case and just briefly that would be united states versus west coast along with him he treating company the victim for clear error and so i believe it's a clear error standard that we would apply to these various factual determination is there an issue here with that then let me turn to the first  cards and it's not so much the numbers i'm focusing on but the additional steps that are taken because not only do you have that transportation not only do you have then the manufacturer of the cards these are id cards that match the credit cards that is you'll have the picture one of the conspirators but the name of the person on the credit card that it itself is fairly sophisticated from from the government's perspective but then you go forward from that there's not just  there's nothing in the record on that here not in this case ok and would have been more reasonable to use the max limit on each car as opposed to the way the district judge did it that would've been a much higher number  well what i was saying when he was saying average that you know he's talking about the same card it's not different cards rather you're taking one card you're taking twenty eight hundred dollars and you're having the sixteen dollar test it was done on that card and to say we're going to average that among the card that doesn't make sense because now you're averaging transactions in one individual car and if you if you take that to be more accurate way to do that would be to look at that twenty eight hundred dollars figure add in the sixteen dollars figure that went on top of that and then there's nothing to distinguish one credit card from the other when you're looking at them there's nothing in the record that suggest the defendants had any intention different with this card than the next card of the next part of the next part of the sequence so i believe given the evidence we have that this was a reasonable approach she's not the individual that brought the car the crossed state line but again she is a member of the conspiracy in which that was done in fact that's the way we located her and that's that's a that's made clear through some of the discussions with the court but what you have here i'll deal with both trafficking and the device making equipment if you look at the changes please and i think it matter if you're talking about guilt as opposed to punishment i mean the theory of conspiracy i would received identification cards were manufactured to do that i mean manufactured to to conform or correspond with the credit cards and under these circumstances if i were to go out and ask somebody it's making the doesn't count a driver's license to go with my credit cards and i come into court and say well i don't actually have the employment i'm not the one who made the cards i think that would both defy the concept of conspiracy  honor mentioned for not just apply the max to the problem we have your honor is the government's reciprocally asked for a continuance to address the question of how to reach this reasonable economic conclusion they produce no evidence whatsoever and then supply a chart something for something that you did you cannot have an enhancement under our guidelines for the acts of other people when the government specifically acknowledges to your honor's and the judge may hand that she didn't manufacture an access device and that she didn't transport anything she took responsibility for her actions she got punished accordingly she got all the points she's supposed to get for the number of cards the number of victims and the amount of money if if we recalculate it and the reason you most respectfully there may not be any cases on this is because i don't think anybody's ever tried to give somebody this particular enhancement when they didn't do it thank you thank you right the courts just going to recess for about five minutes and then i hear the last matter on calend