they please the court mr you are clay seventy two month sentence for a single count a bank fraud to which he pleaded guilty which exceeds by thirty one months the low end of the guideline range found to appl out counsel apart from that the blurred language has this court ever recognized that miscalculation guidelines range could be a basis for a handsome and the court has allowed something like that to go on but we would submit that under the porter case and the geese or on the fact that a district court says that an error is harmless that mean anything well i certainly think that that can be taken into account but it's a more than passing strange to me that it could work and say i would have done the same thing regardless if it had in fact found that the courts concerned me because there's a guidelines calculation and then there's the ability that that can presumably get you to a certain sentence and then there's the ability of the district court judge to and fifty three a factors an exercise their discretion and go very up above what the guidelines would have allowed so it's not necessarily that it's harmless he says look i've calculated the guidelines this is what it is and even if the guidelines didn't say this i would exercise my discretion under three thousand five hundred and fifty three and reach the same result i mean that's that is permissible and that's been upheld in cases in the circuit you understand that honor but i think when you have some kind of dramatic error such as you had here it's a little death a call for a district judge to project into the future or into the past what they might have done otherwise this all get sort of circular though because you reserve the right to raise we never even get to this if you if you've waive if there's a if the  as effective and under your logic there could always be a procedural problem with the guideline calculations so every time you reserve the right to challenge substantive reaves reasonable ness you would also be reserving the right to challenge procedural reasonableness but if they work together as they do we submit in this case and  with respect to the ten or more victims enhanced not your honor the government replied to it on the merits in addition to its other procedural arguments and it's clear in this case that the only true victims were the  it's an intangible loss and the government certainly pointed out that in two thousand and nine this particular provision of the guidelines that we're discussing was amended to expand the category of victims in a fraud case to those who suffer  losses formerly it was just monetary losses but we would submit that that two thousand and nine amendment is unconstitutional and like the trio of cases from the u s supreme court starting with skilling versus us and  monetary and nature to be used to increase a sentence because the defendants in those cases were allowed to escape at least in part criminal liability all together for fraud cases in which there was just an respect to actual criminal liability it certainly shouldn't be able to get it done with respect to a senate seat that handsome and so we think our chips are they mixing apples and oranges that is the charges in those cases very much are different from the charges we have here and you're talking about burdens of proof that would be required to prove these charges versus sentencing apples and oranges what  i don't think it's apples and oranges because i think it's certainly somebody can escape criminal liability altogether is these well feel defendants did in those three cases certainly by the logic used by the supreme court in those cases you can  with respect to that one means of identification to produce another means of identification just very briefly on that there is no way that a caterpillar chegg by itself is a means of not constitute an access device because there was another step required in that trying to complete the transaction it couldn't just be completed based on a paper check and the same is true here if i go to a bank can present a counterfeit check with no further form of my day i'm not going to get the check cashed if a policeman stops me for stating that i say well i don't have a driver's license i don't have a state id card i don't have anything else but here i've got this ch with my name on it that does not serve as a means of identification the government says that this means of identification language is a term of art a term of art well if it's a term of art it wrenches ordinary identification that produces another means of identification but the bottom line here just in the next thirty seconds or so we sincerely believe that mr york place and it's with substantively and raised about because everything the district court said and support it's increasing the sentence above and beyond the guideline range was already taken into account fully in the guidelines the court said that it increased the senate's above the range primarily old parent county charge where nobody was actually hurt or any of these other charges so mr york likes mr your place criminal history is not unusual or out of the ordinary another thing the district based on the arguments that we made here today in our opening break and in the reply operate and unless there are other questions at this time with lot to reserve the remainder of my time i did have one more yes your honor if you're if you're  challenging the validity of a plea agreement that is that you did not wait procedural substantive notice have you thought to withdraw  right here from the government and please the court my name is will carrier here in the united states district court sentenced mr york latest seventy two months in prison for committing the offense of bank fraud this court should burned that sent mr york way waived his right to raise procedural issues on appeal when he entered into a plea agreement and any error in calculating the guidelines was harmless in this case  mr your claim argues here that the court can entertain his procedural arguments as part of the substantive reasonable this decision  first of all we disagree mr york waived his right to raise procedural challenges and to challenge the manner in which the guidelines are jack layton that was a clear and voluntarily waiver set forth in the plea agreement and has been  of that language has been routinely enforced by this court mr barclay received a lot in return for waiving those rights he received the united states agreement to dismiss challenge of aggravated identity theft in violation of title eighteen of the united states code sections in twenty eight dollars which have been would have been a mandatory two year addition to his term of imprisonment on top of the term of imprisonment or his underlying bank fraud or any or conviction of the any of the number of counts that the united states was raising in the superseding indictment so why why wouldn't an error in imposing substitute reasonableness why why should this court be prevented that from taking that into account well so here st of all this court should be prevented from taking into account because the defendant waived the right to make those challenges to how the court calculated the guidelines and received something in response to that nd of all so  corrected barnes has this language about blurring the lines between procedural and substantive research will notice the barn's case was dealing specifically with the whether the district court are waived his right to challenge that furthermore here in this case which i think makes this case not a good case to address your honor question is that the district court made clear that the particular application of these guidelines to these particular facts did not have a bearing on the ultimate sentence that the court rendered at the core explain affect the ultimate sentence and the district court did not just simply say even if i cited the other way i give the same since the district court went at lincoln addressed the specific objections that he found would not affect the sentence th so there may be a case where a court bases its decision on some guideline determination in which it might be a good vehicle for determining whether there's there's some procedural error that affected the the reasonableness of it but this is not that  case mr york way in addressing his objection to the multiple victims guideline enhancement raises a constitutional bigness challenge  this was not raised at the district court though i agree it was raised in the opening brief with the citation to kelly and so this was not court held that sentencing guidelines are not amenable to vagueness challenges primarily because they merely guide the district court's discretion and that that site is available at one  other case that i would mention so that the it appears the district courts have recognized the bigness challenges are not amenable the guidelines are not a minimal the vagueness challenges and then this court discussion from the th circuit regarding what is and is not a means of identification there is an extensive discussion about ford's signature on the check being a means of identification in that case so a check is a means of identification and because it has bank account number routing number names on it and signatures on it so there's there should be no question that a check is the means of identification well i is more required i was thinking here that this theory would be supported because you have to think have the driver's license add a check with that same name on it  together i was thinking that's a means of identification you are wrong on that not more is not required they are both means of identification certainly the statute states that a means of cation is actually the name and it's actually the numbers and so you see courts talking about a chip being a means of identification but that's because it has names and numbers on it the only thing that's more is there is  required in the definition in the guidelines is that the name or number along to a real not fictitious person right and that's where the driver's license came i thought well that's correct but additionally so the guidelines is applying so there's no question that these are means of identification it's a more interesting question whether mr york light was using a means of identification to produce another means of iden ication and so when he took us stolen mail a stolen driver's license and took the numbers and put them on shack and forced a signature on th which we cited in our brief which addresses the application of that particular guideline but let me ask you a question i mean even if you just use that check he still used the means of identification me because he took a check and took the information off of it which seems to be specifically outlined in the statute things unique electronic identification number address or routing code took that put it on a new check that he made  it doesn't have to just i mean sort of digging into it just briscoe was asking you mean did he have to have a driver's license to or is the check by itself enough the check by itself is enough that's our position yes and it gets more interesting because the guidelines have an example where simply forging a signature on a stolen check is not the production of an additional means of identification according to the examples in the guidelines but when we've had other circuits addressed the back pattern when a defendant actually produces a whole new check and  put the page on the ship and the driver's license were certainly presented when mr york i went to the bank store i was looking at the driver's license at the wrong end of the transaction you already have the account for check and then you have prepared to say whatever you want to say and then you go to cash and use the driver's license with that point that what happened here  decision are more eloquent than anything i could say about them here today but he found that seventy two months was the bare minimum needed to reflect the seriousness of mr yar play defense primarily because of the need to reflect the seriousness of the crime and from the president of liberty national bank who testified about the threat that mr york lee made and from special agent just an ink to summarize the investigation so the district court was primed addition to judge d the need for this sentence and provided more than adequate support explaining his decision so could i just ask you to address the palettes argument that the s for diagnosed mental illnesses the variance in pinson was well above the variance that we have in this case and the defendant intense and had pointed to some diagnosed mental some mental illness therefore the court is not allowed to hold him responsible for his anti social behavior he did not raise this specific objection this accusation that the district court was punishing him for his mental there at the district court specifically paying the length of the stems based on the need for mental treatment and said something about you know if you have a short sentence you'll never have any ability distinction from this case your honor thank you thank you brady we did as mr ferrier said cite kelly vs united states page twenty three we also cited mcdonnell vs united states age twenty three the only case among those three that we mentioned an argument that