and our last case this morning is sixteen sixteen seventy nine united states  that the preferred way of charging aggravated identity theft is by possession you know by instance of possession no matter the number of pieces of my identification however the the plain language of the statute does indicate that a single possession of a single piece of information should be the charging the manner of charging the offense the statute reads that it makes it a crime to knowingly transfer or possess or years without lawful authority a means of identification of another person and it goes on to define a means of identification as any name or a number that may be used alone or in conjunction with any other information to identify a specific individual this strongly suggests that congress containing those two hundred names social security numbers molly was in prison how else would he have committed his identity theft activities once he was released the indictment is not to close it as the it should remain in this case for the sentencing because the and by adding two points if it is true that the facts were stipulated that  the this mayall fried scheme including the identity theft began in two thousand and seven and continued through december of two thousand and nine so i think that that is a good factional question about when he possesses the notebook and whether or not he possessed it prior to and then subsequent to his  incarceration in two thousand and eight in texas but the the facts that were established were that he president in chicago and used it to open credit cards and use the information inside to open credit card accounts and boxes and obtain these credit cards and then go to a t m s in chicago so there is no real factual basis for the idea that he committed any part of this scheme while he was incarcerated in a texas prison and i not only did sentence there for the addition of two criminal history points to his underlying five criminal history points i believe he where was erroneous because there is there is no actual support in the record for the idea that he committed part of his scheme while serving the criminal it's this augmented his criminal her his guidelines range from what it should have correctly calculated it should have been eighteen to twenty four months it was calculated at twenty four to thirty month and accordingly it's affected his substantial rights as there's no indication that the court the district court would have settled on the same sentence regardless of the mistake therefore we are asking the court to you know our alternative request for relief is to ask the court to remain for the sentencing in light of the correct guidelines  judge roemer did i answer your question i'm not sure if that's what you're getting ad or i'm left with the feeling that we just don't know i would agree that there  facts are now that particularly established and part of the problem is that i guess this wasn't contested in the district court so that record is no that is not particularly well established my understanding of what happened was that he went it's very nice of you to ask given that your mind i just wanted to make sure that i was understanding correctly i think you i believe that what happened was that mr miller was found with the you know the aggravated identity theft the two hundred pieces of information contained in one notebook was found with him and he would possess it at the time that these charges  discovered that the scheme was discovered and then there was probably additional information so i'm not sure that he possessed those the entire time or i mean that particular notebook and going back to my first point mister miller suffered prejudice due to the duplicitous nature of the charging document as the indictment does not adequately protect him from a process you know i'm sorry double jeopardy violations in the future if he's not protected from future prosecutions for identity theft arising from the same set of circumstances and he did not have sufficient notice of all of you know his potential charges and my ability in order to adequately prepare a defense or negotiate a fee agreement please the court my name is georgia alex likely some i represent the united states this court should affirm the defendant's convictions and sentence after modifying the judgment and i'd like to address the district court's assessment of two criminal history points of the defendant first and those are the cute little history points the district court assessed based on the fact that the defendant served a term of incarceration in two thousand and eight which was squarely during the pendency during the duration of his scheme the scheme began in july of two thousand and seven and continued through december of two thousand and nine the defendant set that scheme into motion and during the defendant's argument or collins argument there was focus on only one aspect of that scheme and that was the possession or the unlawful possession of means of identification as belonging to other individuals but the scheme was much broader than that the scheme involved using those means of identification suit fraudulent reapply for credit cards to then open struggling mailboxes in the names of the defendants victims and then to cause credit card companies or financial institutions to mail those credit cards and then subsequent account statements to be was in prison during the course of the two thousand and nine to two thousand and two thousand and seven through two thousand and nine scheme overall and in particular the factual basis of his plea agreement includes language that he caused the credit cards statements that he had fraudulent me opened to be mailed to mailbox addresses that the defendant controlled and so earlier when i referenced the fact that the scheme involved more than just the possession of the unlawful means of identification and it's this type of activity in particular the fact that i had in mind in terms of activities that were taking place when the defendant was incarcerated in the texas prison he set into motion a scheme in which respond to the point raised in the reply brief that the government is improperly relying on allegations in the indictment to establish that miller's conduct go on th is continued while he was in prison on the unrelated charges yesterday so the government's response proved that point to language in the indictment but the record also includes language in the factual basis of the defendant's plea agreement and you can find the specific language on page twenty of the defendant's appendix and so very it's not simply an allegation on the part of the government but it is an admission by the part of on the part of the defendant that he caused account statements for credit cards that he had froggy really opened to be sent to mailboxes that he had proof that he controlled all of which was part of the art of going skiing and so in light of that that activity that on a single day a notebook that contained multiple means of identification and given the singular nature of this transaction that it was a simultaneous possession of multiple means of identification in an undifferentiated manner the government properly charge the defendant with a single violation of the identity theft statute and then a single violation of the aggravated identity theft statute for the government  in the alternative what the government would have done or could have done i suppose it's charged him with hundreds of individual counts pertaining to each of the individual means of identifications that were found in that notebook but at the end of the day what happened is that the defendant pleaded guilty to a particular in pleading guilty to count six pleaded guilty to the possession of the means of identification tied to a specific individual and so at the end of the day even if there were a deficiency in the indictment and to be clear the government does not believe that the indictment is duplicitous even that even if the warren air or the parties plea agreement cures any such error because again the defendant pled guilty to a specific count and  is one of the concerns in duplicity doctrine that as to whether or not to put it he can be cured through unanimous finding by the church and i want to make sure i understand your question grell is this jury required to be question i think is one that the government's avoided by amending the indictment and so i haven't brief that issue for purposes of the appeal for purposes of the first question i do believe that given the facts here there would need to well i actually don't want to commit yourself that's final and the reason why i posit judge is because the statute talks about because action in houston it has a variety of different means of being able to violate the statute and so here where you have thank you got three minutes left ok thank you just one quick point i wanted to make under a bottle with respect to what is in the plea agreement on the sentencing issue we have   does noted that mr miller opened mailboxes in the names of victim individuals knowing that the victims did not know of our consent to his it's having open to the mailbox in their names and he knew that he intended to have fraudulent lee obtain credit card bank of america to be mailed to the mailbox addresses that he controlled in chicago i know about december twenty eighth of two thousand and seven defendant miller received a capital one credit card ending in zero two five nine in caused credit cards to be sent to these mailboxes but it does not indicate that this happened during the time in two thousand and eight where he was in cursory involved may have happened before and after there is nothing in the factual argument it appears clear to me one of the things that the government is required to prove in an aggravated identity theft situation is that the victim is a real person and so with it to to follow up and your honest question of whether or not that journey needs to be unanimous we would need to the jury would need to find that whatever victim was a real person