cards or things along those lines but the most important fact in this case is that each gift card is stored in limited value and should have been readily determined for a loss in this case the value of the vast majority of the car argument is under the commentary itself we should not have this five hundred dollars presumption because most of the gift cards are twenty five  fifty dollars so it's what i would to call a statutory interpretation argument a classic an argument about what the statute or what the driving to the commentary means and then the other argument is that hey this argument that if it means what the government says it it was important was when they were talking about what a defendant can do under this situation and i think that quote pretty clear that in addressing the argue about presumption the five hundred dollars is sta you have the opportunity to rebut such a perception and that burden fell upon the defendant in this situation your arms when you look at the sentencing transcript the court made one finding of fact this was accessed devices and based on that one finding in fact it was straight to the god i am patient note and decided to take each card in terms of five hundred dollars it did not address and this is where i think it process thing i'm confused so i maybe i'm not following and maybe i didn't see this in your brief but are you making is this a procedural reason why this argument now is that there was no you weren't allowed to put evidence on the record about the  my understanding is that for about half of the gift cards there was an actual amount and they used the actual amount for the rest of the gift cards there was the five hundred dollars amount from the commentary  apply are you saying that you weren't allowed to put in evidence of the actual value for the cards to which the presumption applied the facts are a little different it was about the vast majority of those so my argument is basically this we had those uncontroverted facts in the record where this is one of those situations and i know that a lot of the cases say you know it doesn't matter if this was impossible or against economic reality but what difference here is it's very distinct is that ok impossible think such as a sting operation or insurance claim or somebody who's making a one million dollars claims only five hundred thousand dollars that's not the situation th situation here had the stored value cards and they were either twenty five dollars or fifty dollars and it was the last time anybody ever got a five one hundred dollars gift card and the court in that make that distinction the court knew those facts knew that these you cannot like i understand the commission splitting the baby in this application note here i can understand i think it's arbitrary where they pick that number and i don't know where they get the five hundred but in this situation here we do those ba it's very important the defendant must have intended those losses whether they could get him or not in this situation it's a crime but what she intended was to get those gift cards and get those cash i'm having a we generally speaking interpret the shout to be a mandatory command so i get your point that it's against the economic reality for most of these gift cards because they were twenty five dollars and fifty dollars but if we're just following the plain text of the commentary our hands bound by that shout and so i think that perhaps the better argument is that the commentary is somehow invalid rather than that the commentary simply doesn't apply here well i'm  is basically this whenever you have a predicate fact that is found and the consequences of that you don't need to make any further findings facts but when you have a situation a defendant or due process under a preponderance of the evidence in this situation preponderance of the evidence showed the value cards and it wasn't one of the sayings where she had a credit card and get you to a line of credit more money wasn't a debit card it takes you to an account it was any of those things this was a store ballon d card and what this note did if we shall follow that note in laidley to lead to an absurd situation here where essentially  times intents and loss was attributed to mr carty when you do that if you care to argument and it seems to me that there are at least would be an argument for a variance downward  because the five hundred dollars doesn't reflect the actual culpability in this case was there a downward variance argument made on that particular ground i think there was a variance argument terms of we we know that some of these cards have a value and they might have had a value on their face whatever it was was the argument made to the judge that you should use  these numbers as the actual loss and not use the presumption you're saying that he didn't there was some due process argument that you weren't allowed to rebut the presumption were you not allowed to put the evidence in the record he evidence was already in the record and i guess what i'm saying is that are due process the should have been a finding of some reason about judge as to why this guideline over the reality of the situation and the independent facts of this case you should multiply her intended loss by ten times but about what about the argument that the commentary they put they put in the five hundred dollars because often times lost is going to be difficult to calculate  so we're going to have a rule rather case by case d to enter and the amount of the gift cards in this case father's twenty five and fifty there's a whole host of other evidence that we don't actually know about we don't know how many cards she actually stall we know that there five hundred cards in her in her room at the time but that also doesn't include the value of the actual greeting cards or other things that she stole so the commission thought a five hundred dollars minimum presumption per card was reasonable because of the difficulties involved and kept him austin a lot of cases why wouldn't that be a reasonable response reasonable response reason why you would create a presumption like th which i don't think the commission can do that's a judge's role and even sets the reason it was far presumption for the appellate courts this goes way too far or an application no now is in the guidelines and went through congress went through public note you know comment notice it may be a different story but it does way too much it has a clear independent fact and what happened with this lady and it's one of those real world situations were ok ok mr reagan your your  states the district court in this case correctly calculated the loss amount in this case by applying the five one hundred dollars minimum provide per access resort can i ask you a quick question i know there's another  issue is coming up in another case is that right correct this afternoon your honor as applied to credit cards that were stolen through skimming devices ok so it's not a gift card case it's a credit card case don't know how those cuts but it seemed like in the defendant was making a subset the reasonableness argument that you shouldn't apply the guideline or apply the five hundred hours in in his particular his or her i can't remember particular case it didn't make sense or didn't really adequately reflect culpability i don't think that argument is being made here and if it were it would be subject to the oh it waivers that right i read agree that any challenge to substantive whether as a blanket matter the guideline of the commentary is invalid as applied in a in a say in a gift card case where you know the actual hundred dollars number when we know that it's not correct for a lot of the a lot of the cards that challenge would be she could make that challenge right whether it's a good one or not we you know we supped us but that one is not subject to the waiver isn't only as it postal service in this case i didn't and i guess i didn't read maybe i missed it in the sense i'm trying to but there was a request for a downward variance but i'm not sure whether i saw that it that it was based at all on this idea that the five hundred didn't adequately or overstated her her culpability it was that argument may go oh no your honor that specifically was an i guess a ties into the opponent's argument that somehow she wasn't permitted to rebut this presumption about the five hundred dollars minimum she had every opportunity to argue at that point in the case that it over represented her conduct she could have said oh well i only intended this deal you know gift card set had a twenty five dollars value or fifty value of course that would have been factually inaccurate and the government sentencing memorandum  attached a receipt for a purge purchase that occurred in july where there was a starting balance for a visa gift card of two hundred and fifty two dollars and had a remaining balance of one hundred and ninety eight dollars of zero dollars forty cents that i mean i take it there was there was evidence of what these amounts or at least some of the cards we know the actual amounts why isn't why isn't the case that the government shouldn't have to to prove or go with what the i or the court should go with what the actual number is mean isn't culpability in a theft case tied to the amount that you actually stole well the problem of the accounts argument is that she ignoring that the general rules for determining last time she doesn't challenge the general rule under application no three which instructs that loss is the greater of actual loss or intended loss  both to see which one is higher and what this does this implication note gives district courts a reasonable starting point in these difficult to determine cases and it is a reasonable but what was difficult to determine i mean the actual loss is we if you know the amount on the gift card that's the actual loss if you know the amount of the gift card that's also the intended loss right i mean you can't you can intend to take more than what you actually took if i take one hundred dollars bill that's the actual end intended loss isn't it i mean i don't hear we have an actual os we haven't intended laws neither one of which it gets to the five hundred  amount at all the five hundred dollars minimum is a necessary starting point as a proxy for determining the seriousness of the fraud scheme and in this case it was a yearlong scheme and so when you're looking at just the one hundred one hundred cards that she possessed that's the day that law enforcement intercepted her but she had been stuffing pieces of mail in her lunch bag for over a year in just the day that she was intercepted she was seen taking a one hundred  of mail so that's only a snapshot of what she had that day she had forty two thousand dollars in cash that wasn't converted last she had made numerous purchases and we attached some of the receipts for these purchases with gift cards and some of those gift cards were definitely over twenty five dollars or fifty dollars and i can i ask you just don't use the strongest argument i see  commentary consistent with the plain language and i'm struggling with lost may be ambiguous in the abstract could it include d emotional loss it could only be financial loss but i'm struggling with see how loss can be interpreted to mean a five thousand five hundred dollars automatic the board if i go to any dictionary that you could think of you would never see that mandate a requirement for sentencing that should be actually in the guy bill and not in the commentary so i guess i wonder what's the best argument for why loss can be interpreted to mean five hundred dollars respect to four being one two concerning the controlled substance of the offense definition and application note adding a brand new offense that wasn't in the text will definition we don't have a conflict in this case because it was intentionally l falls within the scope of the ambiguity of the meaning of the word lost its i mean this case proves the point that under no interpretation would you say a twenty five dollars gift card has a loss of five hundred dollars i just i'm struggling to see the connection there and so i think i'm sorry i think the focus when you're looking at the twenty five dollars gift card that's after the fact but the point of what her intended loss was is when she's stealing these pieces of mantle she has no idea what the involve the credit card and the court the court was cleary of the five hundred dollars four in that case with credit cards but a credit card is certainly different from a gift card as the court pointed out that credit cards may have other illegal uses and this can be and they can be used to create call today on a days which obviously concerned the mission  when it changed the minimum you can't use a gift card for example to steal somebody's identity there's no way it has any other use except to take it in the subway and get a five foot whatever for ten dollars i mean isn't it isn't this way out of that realm no your honor this is not a situation where the calculation is so high that it's not rooted in reality when you're applying it to the facts of this case and it is a yearlong scheme this is not something where there is no chance of success this scheme was actually very successful we happened to only get a snapshot of what was going on with respect to the dollars your honor i would agree with you that there are varying amounts but that same concern applies with respect to stealing credit cards when it be steals credit cards and the people have no idea of what the maximum spending amount is many of these credit cards have short spending wipes because of how sophisticated the credit card company's product section has become their cancel button up but the point scuse me the point guidelines would prevent it's only supposed to be sufficient but not greater than necessary to comply with the purposes of punishment set out in the statute some fear radical action that she's been taking or would take or will continue to take or whatever so i mean i can do with a gift card is sell it for face that you or use it or sell to for the amount on the card thats it correct your honor and i see my time is almost up five i would conclude by saying that the court had the obligation to determine the intended loss that applying this guideline was a reasonable application of the guideline in this case in this factual context and it did not lead to a plainly or erroneous result defendant had the opportunity to ask for a downward variance which is the appropriate remedy and that was permitted by the a plea agreement and the district court disagreed with her request for a downward variance given the extraordinary harm that her crimes it cost to the postal service special rule does not further define actual or intended loss because much further than that it tells you what it is and that is for a judge to decide and for the government to prove and one of the reasons why some of these notes can also deserve no binding or no deference is a by like the constitution and that is what this this does and when i say it because it doesn't provide doesn't make the group burden of proof of loss the government just has to go in and count the numbers instead like you see in the argument here we start saying theoretical stuff has been doing this year long well that's something that needs to be proven to sentencing here is not something that can be just presumed based on an application note that never went to the gauntlet of congress and one thing to about this is to there's a big disconnect between this rule and the overarching purpose of sentencing there has to be a causal connection between w the defendant did or intended and the punishment or sentence imposed and this does not provide that causal connection at all i do want to mention a little bit about the moon you know there is a cursory mention of gift cards  but when i looked at that case i think the main issue really well as appeal whatever but the court did go into that substantive thing there was a different issue you know moot argument was these are one use of all they were cancelled but the court rejected that and basically said you know  sure if companies are quick to shut this down you know the statute on this says we've got to be inclusive enough to include stolen cancel cards but that's not what point i'm making here my point is based on the nature of what was stolen the intent commission did something on cloning telephones and offside and they just picked this five hundred dollars number of blue house an arbitrary this court no other courts can determine what research and data they used to come up with but instead that rule is there without going through congress and it seems like that it's a shallow will but be honest with you there should be room for presumption this is just one of those cases where this rule under an avocation has gone way too far retain deserves no deference that's what this rule does it actually fits all of those parameters you might not say it adds but when you have a loss guideline it says this is a loss and just gives you a list of numbers to go up then you have four pages of commentary interpreted ok thank you counted could i have scanned make that i asked one question yeah did you find any gift card cases i looked at looked your honor and the closest one i saw a mention the gift card was moon even though that wasn't the issue and the issue was his credit cards but no yeah why didn't you call no so in that respect we could be