counsel claim let me ask you first question why should we hear that claim in terms of the developer the record in this case obviously we only hear those cases those types of claims if there is a sufficiently developed record there such  obvious ineffective assistance out thank you rely upon the the latter basis i think you're saying this from a sense of being brief it's really about the development of the record so why do you think the record fully developed for us to decide that issue sure that you're on and the record is fully developed and shows that counsel failed to investigate and failed to had years really to get ready for sentencing the indictment in this case is in two thousand and ten in the first sense in hearing was in june of two thousand and thirteen and yet defense counsel did absolutely nothing to get documents and instead mis understood her role and and said that well it's the government's burden i don't need to get anything on my own and the court let's say that it was deficient not to try to come up with anything else by the time the hearing roll around given the evidence that the government had i don't think that you can show prejudice because the losses are the losses so i think the the i a c claim really goes to why the continuance was sucked right and asked that that i see the record as being insufficiently developed because counsel consult it with her client and we don't know what they said right but i could have said well there's there's no more losses seek the continuance our chances can only improve from here we just don't know what was said during that conversation so why is that gap in the record not important because it doesn't matter what the defendant said this is a tactical decision that is within the that the attorney has to make not the client it's not about testifying or whether to go to trial or plead he had already pled guilty and the attorney needs the client properly and to advise a client properly about whether to get seek the continuance eternity has to do an investigation and the supreme court in wigan and strickland has said that for the attorney to act reasonably the defense attorney has to do the proper investigation but let me ask this  question what information do we have about what information was presented to the defendant to help advise his attorney about whether or not to seek the continuance right we don't have a record as to what discovery the finish may have received or received as related to the loans to finesse ability to assess which specific loans may have had credits against him or not why isn't that an important part of the record because for example if you were to say that they were also never sent copies of a loan documents during the plea period or other pre prepared or other period that might be important information but we don't have any of that right do we we don't have that but i think what we need to focus on is what w the defense attorney acting rationally and she was acting the record shows that her decisions were rational the arguments that she made were not supported by the law of whatsoever so everything that she wants to do to try to mitigate the loss amount was the rational and it could only go up and you have on the record the assistant united states attorney saying i only submitted for loans i have twenty six others that i can submit so in light of that it's only going to go up she was wrong about the law she failed to investigate the law she failed to investigate the facts and then the facts prove that it doubled the amount of practically double the amount of loss the counsel what would be the harm in differing this until there's an opportunity for the attorney to give an affidavit when the facts can be explored more completely what's the harm and well a twenty to fifty five can certainly be filed so maybe i should move on to the other argument that if if the court so the other argument is is regarding the two level increased for means of identification and so basically what this two point increase involves is you take you steal or don't have authority to take someone's means of identification and and you turn it into some other means of identification such as a low number of council isn't obtaining consent by half truths no different than stealing you don't have and the statutory interpretation of the guidelines don't support that because it's i mean because the issues author authorized use of the information right how can it be authorized if the person authorizing it doesn't have full information about what the information with their personal data is going to be used for right anderson i think i understand the question and it's really parsing out whether this two to level increase applies is what were they going to use the information to obtain what means of identification were they going to breed or create and here the means of identification that they were going to breed create everyone agrees is a long number that loan number would be the same whether their cosigners or the principal online authorization isn't the same the problem with your argument for me is that if you authorize someone to charge five thousand dollars on your credit card and that person charges fifty thousand dollars on your credit card this exceeded your authority and i look at this similarly if you authorize someone to u got it said we're going to get a lot for five thousand and got a loan for fifty thousand they said we're going to use your identification to get a loan number and use the identification to get a loan number along the river for what for what purpose right for a home and the different says are you a cosigner on that loan with that loan number or are you that the listener is the principal they were told that's the loans were going to be used to help people refinance their property homeowners who were in trouble to refinance the property the names were actually use to buy a home not to help bail out people who were behind on their loans you don't see that as a difference it the history talks about taking it without the person's knowledge well here they knew exactly what was happening they didn't know exactly what was it as far as getting a loan so i mean i thought you know but be alone would be to purchase new homes versus helping out the stressed owners to refinance properties is there any indication in the record that they will not be the individuals were complicit in getting money for new homes  the bottom line really is that the enhancement doesn't apply because the identity holders authorize the defendant to use their identifying information to obtain bank loan numbers and i think if that's ok anything beyond that that they may not have known about doesn't matter that's right that's fraud i meant that fraud but we have to focus on what did they did they created a driver's license did they create a credit card if they create no  that doesn't resonate with i agree and i am being narrow because that's what the law requires for criminal statutes when we are looking at a criminal statute and it's the s n c guideline is a criminal penalty we have to like can you point to that says in terms of authorization that the issue of authorization or not being authorized is so narrowly drawn that if you were told part of the truth even if not the full truth that doesn't constitute unauthorized use i understand your argument is you're trying to draw a very narrow interpretation of that the question is where can we look to session tape protection by this court even other courts that find narrow definition of unauthorized well it you start with the text and the text says the unauthorized transfer or you stop there on authorized escort that's where i think you're losing me because you're going right past saying is when looking at the text and the context when what is the word are not very mean in this context authorized means that you're going to use the information so if i give you my cell security number and you go get a credit card when i said i'm giving so security card so you can so security number so you can get a loan but then you get a credit card instead that's a completely different transaction and you've opened a credit card in my name i never authorized that that's not the right but there are lots of ways to engage in an authorized behavior so that's just one that doesn't necessarily mean that the universe have an authorized correct here that the two words have to be read together authorized  authorized and means of identification here the means of identification is only one thing a low number that is the means of identification so when reading those two things together low number and an authorized that's that's how we w good morning your honor may it please the court al who was well conquer the united states so beginning with the ineffective assistance claim in addition to the fact that the record is not sufficiently developed to permit review at this claim i want to suggest to the court that there is at least one tactical reason why defense counsel may have thought the continuance that she did and so i think it's important to kind of discuss how this issue of downstream lenders came into play so after the defendant filed his sentencing position the government filed its sentencing position where it represented that it was prepared to prove loss for the purposes of the guidelines but it was not prepared to prove loss for the purposes of restitution and obviously lost  guidelines is a more simplistic calculation simply the difference between the remaining principal on the loan and the proceeds of the foreclosure sale whereas for restitution particularly under this court's decision in young which governed before it was partially which governed at the time of the sentencing hearing before it was partially abrogated by the supreme court it's a much more complicated calculation where the government needs information about whether the loans were sold downstream how much was paid for the loans by the downstream lenders and even the fair market value of the collateral at the time and the downstream lenders obtained the loan so defense counsel could have thought that to the extent that the government has already agreed that it's not prepared for restitution and needs to put off the restitution hearing and to the extent that the government would be unable to actually prove restitution actual loss defense counsel could then make the argument under the thirty five fifty three a factors that defendant's conduct didn't cause any actual harm and so even if there was a technical loss under the guidelines it's not as the defendant's conduct you know threatened the collapse of the financial how would that help you are you saying that that argument with that help defense counsel argue for a downward variance yes either a downward variance or under the unusual when the government hands up and say hey i've got a lot more loss to then ask for a continuance so that the government can prove up a lot more lost that i'm not sure that you know each that issue on the record that we've got because there may be strategic reasons that counsel discussed with her client but that's a pretty unusual situation correct and the government agree with that but i guess even if the government was able to you know ultimately submit additional loan information i think it's notable in this case that there was no restitution ordered so the government represented that it was too complex and so but why would the masses counsel however that justify the failure to even investigate and thirteen months any issue with respect to what the actual loss amounts are how is it effective having that look that investigated issues to request a continuous when the government is telling you you of likely to receive a higher sentence right and even the record may not be fully developed the the the defense lawyer statements or misstatements about the law and what happened below are pretty straightforward what justifies not doing any investigation at all i don't think the record shows that she didn't do any investigation at all she filed for sentencing position and hundreds of pages of exhibits the record shows that she had an investigator appointed to locate and interview potential witnesses she attaches you know many pages of checks that she argued would demonstrate that the principal payments were actually paid and so it doesn't reflect that she did no investigation i think the narrow issue is should she have done more investigation into this downstream lender i mean at the point at which she requests the continuance we have no information that she had any reason to believe that there would be a lower loss amount or the government couldn't prove their higher loss amount other than her misstatements about what the law would be at that given point in time she had reason to believe that the government wouldn't be able to prove restitution and so i think she could have argued that if this is a case that doesn't involve actual loss and actual harm to any individual bank then perhaps the district court will view it as a mitigating circumstances even if under the guidelines he would still get high guidelines exposure also i would just note for the court that the only record before the court is that the information about downstream loans was very limited and very difficult as the government explained an accent unseen position its initial financing position and government records of record one thirty eight to one thirty nine and then again represented to the court at the hearing and that's the government's excerpts of record three twenty seven three twenty nine and three forty this was a very difficult issue and it was difficult to obtain information because many of the lenders had gone out of business and the loans had been bundled and ultimately securitize and so i also don't think that the record that we have reflects that there's anything defense counsel could have done to obtain information about the specific narrow seem right well i guess i would just put the caviar that the government at this point the government has already agreed that the restitution hearings have to be put off and the government's already representing that it's going to seek out this additional information for purposes of restitution so i think defense counsel could reasonably believe that to the extent that the government is already going to be locating this information to the extent that it could demonstrate that her client's conduct didn't cause actual loss it may have did so he did turn over records that were obtained from financial plus the companies that you know defendant was the vice president of and those records had status reports of all these different loans that i think led to the thirty fraudulent loan statement in the factual basis of the plea agreement whether he had obtained records from the specific lenders and again some of the lenders had gone out of business i do not know but the company's own records reflected information about those loans and those are those are the doctors are available for the first sensing hearing and then after the first since we're hearing additional back which are available for from some of the lenders who are still in business who had records  the defendant didn't have the authority to take and i think it's important to recognize that this guideline talks about unauthorized use not unauthorized taking so the only issue is did the defendant in this use any means of identification in an authorised way to obtain another means of identification here the bank loan and i think there are two independent reasons why this is true and the first reason is one that the government alluded to in the twenty eight jail letter which is that the government submitted evidence that was an contradicted that signatures on loan applications were forged and this court has held in united states versus blacks that a signature constitutes a means of identification because there's no evidence in the record to suggest that those signatures were authorized that in itself constitutes the unauthorized use of a means of identification on a loan application for purposes of getting a bank loan and then independently of course as the government has kind of laid out its brief the government would submit that none of this was on it was authorized in the sense that these straw borrowers who were often unsophisticated were told that this was just about temporarily lending their credit to help distressed homeowners they were told that their information would be removed from the loan after a year that they would be temporary cosigners they were never told that they would actually be purchasing the houses they were never told that they would be the primary individuals on that loan and so defendants argument that you know the only thing that matters is that they approved of that specific form of means of identification i think is simply overbroad and doesn't and both defies the plain language of the guideline and also common sense because then under defendant's argument to the extent that you submit your information to a loan officer you know for the person's of bank loan and then they use that information to obtain a bank loan in someone else's name under defendant's argument the mere fact that it's a bank loan would mean that it was authorized and obviously that would defy the purpose of the guideline and also the plain language so the government's admits that the district court properly applied the enhancement and just for the court's information the evidence in the record regarding the forged signatures can be found at government excerpts of record one fifty eight that's victim ms or iana government experts of record one sixty six which is miss ponce and there's also an interview report that can be found at government excerpts of record eighty two where an employee of the company talks about how the defendant would forge individual signatures thank you three a would could be argued was that given the issues of mortgage meltdown the things like that that the defense attorney could have filed well if we if we're able to get a lower restitution amount we can argue to the court if a guidelines don't accurately reflect the true nature of the loss to the banks particularly if they may have even indirectly been involved with some aspect of the of involved of the seller loans or some aspect of the misrepresentation information why would that be a good strategic decision the in excerpts of record one yard thirty eight through i think forty to the district court tells her very clearly either separate things restitution and loss amount are totally separate we are going to have a lot amount hearing and that is going to determine the guidelines in this case and she's saying and the court tells her at the end of the day are you going to be able to get below one million dollars if you have thirty other properties twenty six other properties her response i don't know your honor i don't know i haven't done my homework basically there are thirty properties here the court says and then if the amount if the amount of loss is far in exceeding million dollars that's going to be considered by the court he tells her over and over again trying to talk her out of doing this if you if you want a more thorough hearing on the thirty properties then you should have one and then she says well we're going to have to have a recitation hearing anyway and the court schools here and says no we're going to do a lot of calculation separate from the restitution and so