court was single count of credit card fraud by way of background this stem from the use of unlawfully detained credit card information which was obtained in two different matters mr diallo obtained it from from a third party some of the account numbers and other see obtained through the use of a skimming device through which credit cards were run through to store the information once these account numbers were received mr diallo use them to purchase gift greater and in this case the court went with the attended loss the actual loss here was only approximately one hundred sixty thousand dollars in any evidence you're not hearing as to what the intended loss was and our position is that insufficient court to determine that mr diallo would try to take everything that he could because there was absolutely there wasn't a shred of evidence presented that that was his actual intent what the secret or so it was a lot easier for the for the court to evaluate when and who was was but in your case very different but that's correct order in that case he actually wrote a check or seventy five thousand dollars and in terms of that check that was the intended loss our our position at this point is that in order for the united states to meet its burden and proven and have that last they have to put on some evidence other than just saying these are the aggregate credit card limits and that's or going to go well well that's position you might not agree with it i may or may not or what are you going to do on remand when they come up with that with that scenario if i may just the first part of your question here and i don't believe that that would be sufficient for you to make from other circuits you know facts such as some of the credit cards used words ofsted or that they were used both times in this case the united states bill the put on any evidence that the cards supercars were used multiple times and that they were being used over and over again they didn't put on any evidence that any of the cards that were three hundred twenty seven total that any of them were actually exhausted and they didn't put on any evidence from from witnesses indicating that the intent court simply accepted the testimony that was taking the sentencing hearing and used the aggregate credit limits and this is one of the problems i think in this case is that first and foremost the court didn't provide any reasoning for its calculation intended loss other than to say we agree to the credit card limit so that's the intended law so that's really the thing they like they say we're dealing with a thief a thief will take what you can and this is what this is what the improper but there are methods as as shown through the other circuit cases to prove that i was showing that credit cards that he used that he exhausted and that wasn't done here to show that cards were used multiple times to show that he was trying to use the poem out of the cards that wasn't  one explain why it's our position that because the intended loss doesn't require some proof of a man's right that it's not sufficient to just say it's a credit card scheme so we aggregate the rest to be something each credit card how much what other evidence could the government have you in terms of calculating intended law so in this case i'd not sure that they had really you know anything to go on in this case but in the past they have coconspirators and and credit card records to show how we see using the card so they did have that here so your position is that there could be no loss beyond the actual loss in this case i believe it would be impossible to determine the intended thank you your honor may it please the court even serving on behalf of the united states of america on the sole remaining issue in this case obviously the united states feels that there was an adequate basis for the district court holding that there find that a criminal has the intent to steal as much as possible and then when trying to come up with the kind of reasonable idea of what the intended loss might be that using aggregated credit limits is acceptable but what right evidence that you have in this case of the three hundred plus accounts that had been compromised but that is another fact we have over three hundred credit card account accounts that have been compromised we have his involvement in a scheme where he has a skimming device he has the  necessary to to make this a wide ranging very very lucrative scheme we have the fact that when he's caught he has taken one hundred sixty thousand dollars worth of gift cards this is not a petty thief who finds one card and makes a quick charge on it and he continues to hold on to these numbers and continues to have access to these numbers so it's not a convenience check situation where he's only got two checks he writes and they're out of the out of the picture the problem is it's very  to others for one point six billion dollars over fifty financial institutions were thank you by his actions so obviously it's a very serious offense that's the end of the analysis so i mean it seems to me that he equated intended loss  be deep and now you agree or disagree well i would agree that in a perfect world the record would have been a little bit more expansive than than what we have to deal with here but the fact is in the giver's case which i understand you may not think is as positive for the government does as maybe i thought it was if it does talk about how the court can draw reasonable inferences from the nature of the crime and so yes it doesn't it doesn't this is the courts but doesn't specifically a very serious crime i don't think he just simply you can i would concede that you can read it to indicate that but i think you can also read it to indicate that after having heard the arguments from counsel on this very issue and then not being presented with any evidence by mr and self once we made our prima facia case that the inference that he was making that we have the nature of the crime we have the fact that this was a wide ranging scheme we had the fact that mr diallo even after agreeing to this plea agreement is arrested with another hundred compromise credit card accounts that this is a guy who's going out there and he wants to get as much money or gift cards whether wegmans or someplace else is possible and the only thing the question here is not that he's such a great person and that he would take whatever you can but the question is did you make a promise they should case all you made was a case showing the limits of the credit cards there's no evidence that he had that intent and so why can't we say  that the credit line of every single credit card and you should by looking at the evidence that i've listed regarding the extent of the crime the interesting continuing and ongoing the crime in making the crime ongoing the efforts to move from state state throughout the mid atlantic region buying things at different locations to make it more difficult to track this gives rise to the possibility of a reasonable inference that he wanted to steal as much as possible doing a lot better than not have known that amount however if if we get past the problem that obviously we're been having today and say ok the court found that he was going to take whatever it is that he wanted then what he might have thought was available or what he might have been aware was available or not aware goes to his expectations as to how much he's going to be able to pull down from news accounts it doesn't go to his intention to take as much as possible whatever that might be and givers makes it very clear just as you can't automatically equate possible losses with intended losses you can also not automatically equate the expectation for what losses are going to be able to be pulled down from these accounts to the intended losses you have to look at a evidence of that point that is brought up by mr deol to really kind of get the area of where the intent of intent of the losses were and if he's going to make some sort of argument that oh i only wanted to take about two thousand from every one of these accounts each and that's all i was going to do but he didn't offer anything the only evidence that was offered to offer anything either you just offered the credit limit of each part you know freddie attendance part except when you know already done and from the already done how do you extrapolate that he would have gotten the credit every single card that again all i can say is from the manner in which he had undertaken his fraud up until that point as wide raising ranging as it was with his traveling to different districts which take it with taking as much money as he was in there being no indication at all anywhere that he was ready to stop there is no indication at all that he had any intention to steal less than whatever he could get his hands on it's it's basically when you get a case like this you just you figure out what's the worst case scenario that's the guideline from that uses and what's the worst case scenario maximum that you could charge a credit cards but that doesn't seem to me to be the correct analysis well the worst case scenario with nothing more would be problematic i think that's what yours has to say and if the court finds that there is nothing more that has been offered other than the worst case scenario then obviously it with regard to the second issue with regards to the first issue well with regard to the workers you desired pose booker jurisprudence require court to explain in greater detail how the one point six million dollar figure to two to add to four points in the guideline  calculation there obviously has to be some level of explanation i think however that most of the cases that i'm running through my head like crazy right now say that it doesn't have to be tremendously specific it doesn't have to address every single particular element  t argue no because i think that there can be the inference based again on the fact that we had this discussion back and forth during the sentencing on this very issue and that it can be inferred that the district court took that into consideration  being made aware of the cases that were raised by mr diallo as counsel and having before it the facts that we've discussed here this morning which gave her says you can draw from those types of facts the nature of the crime a reasonable you come to the third circuit with a decision you have not the decision you want and you're saying we haven't said specifically that it need be spelled out for each and every case off the top of my head i'm not coming up with a that that you're honest that pelleas argument rests on the assertion that because mr diallo engaged in criminal activity that that he's a criminal and therefore we should infer that he he wanted to steal as much as he possibly could however the problem with that argument as you're on are noted is that it probably concedes that mr diallo had absolutely no knowledge as to what the credit limits of these cards were and you know a person in his position you have to have a specific intent to steal the certain amount of money any lesser men's men's right is insufficient and as your honor noted it is possible that's for the offense itself that's not for the guideline  that there was barely any analysis here so i'm kind of lost but i think that that it would have been difficult for the district court to do here because the united states be able to put on when it really any evidence for him to consider  they just put the officer on the stand to testify that this is the agora credit card limits and didn't offer any other facts and as your honor noted you know it's possible that he may have wanted to just go out and keep using these cards over and over again and if that were the case it would have been easy for them well to make its case if they went into the credit card records and show that he had used the multiple times or that he had exhausted just one of the credit cards the united states relies on the fact that it was a wide ranging scheme that included under over three hundred compromised credit cards in support of the fact that the intended losses was basically the worst case scenario but they didn't provide any evidence that a single one of those over three hundred cards was either exhausted which would go to go to their prime official cases or that mr diallo had used any of them multiple times because the united states failed to put out any further evidence other than just saying well we aggregated the limits you know i think it would have been difficult for the court to go into a deeper analysis because it's our position that they did make a pri of fisher case there the only other thing that i would know that you know you say that they didn't make a promise they should case the government maintains throughout the sentencing process the burden of persuasion ok but didn't the burden of production shift to your client once they put the figure forward that the credit card limits to one point six million isn't that where you  by not meeting your burden of production i don't believe that the burden did sheff because that number was not based on any articulable facts that would have caused the burd to was it was it was your it is part of the government that they had some of those cars were drawn down so that the maximum could not possibly have been one point three million that was yes but some of those cars were drawn down so that that much money was not available the one point six was not available that's correct your honor as the the officer made it on the stand at the sentencing hearing the united states had no idea how much credit was already used up on the cards and how much was left so if you had one card with a twenty thousand dollar limit there could have been one thousand dollars used when he got the car that was actually taken no your honor i do i do understand and accept the fact that the intended loss can be much greater than the actual loss and if it is then that's the proper number for the the court to sentence on however