that were imposed upon the appellant the government concedes this in part with respect to the criminal history calculation so that's where i would like to start and then i would like to discuss the last calculation the first part of the criminal history calculations is the marijuana offenses which is the offenses listed in p s are forty paragraphs forty two and forty three as i argued in my brief these offenses do not meet the criteria for a prior sentence under for a one point two nor do they meet the criteria for a countable diversionary disposition under for a one point two f the government understands that these offenses do not meet that criteria so they have conceded the point they have also asked for it may come from  record shows i think it's correct as to one of the convictions but the past indicates there was a finding our admission of guilty for the september seven twenty fifteen offense and her one but not all play to that one would be sufficient is that not correct i believe it made it yeah i believe you are correct candidly when i was doing the brief and i was looking at the criminal history part of the analysis of p s r i didn't really see that so but i think your honor is correct but it does only go to one of the priors so i think we need to remain if we like remand on the last or whatever and just look at it all again and so where does that leave us if there is plainly a problem with one and not with the other have to go back yes your honor because it does reduce to lay that out as to why as you see it because it reduces the criminal history points which also would reduce the criminal history category it goes from five to four possibly does four stay at a three it does but in conjunction with the traffic violations that i would be arguing that that would cause the criminal history category to go down that's why i asked my question if we would agree with you on the first but disagree with you on the trafficking issue does it have to go back you may be right on both but i'm just asking if you're wrong on trafficking is the matter go back violations and the appellant did object below the council stated that he felt that the p s r was an accurate as with respect to the description of these traffic violations and also objected to having three points versus one point because the believe that they were related cases and only should get one point and that's because the sentence was imposed on the same day it was the same sentence the government never responded to the objections of the defendant and never at the sentencing entered any type of evidence with respect to these traffic violations so on that basis alone i think the court can find that the traffic violations only get one point because the government did not meet its burden it did not meet its burden to prove that these were separate offenses and so the court should find that if they are related and only get one criminal history point well i've looked  they were objected to in the in the objections the defense did object and he said that he believe that the p s r was in accurate as to the sentences in a courtroom on the objection no it did not but the the egyptians are in the written objections of the defense and there was no response by the government and there was no there is argue about him at the senate saying hearing no at the beginning of the sentencing hearing the court assured the defense counsel that his written objections were preserved and he invited counsel to elaborate or even change some of the objections if counsel wanted to but it but the court specifically stated on page four of the sentencing transcript that those objections were preserved the court chose not to to rule on them at though jackson's anything well the court found a criminal history to be criminal history three so by inference you can find that it overruled but it didn't really say much but again it was the government's burden to come conceding that i think that it cannot the first and second violations do not have an intervening arrest even if you took the p s r what it says because it does say that there was an arrest arrest goes to both the first violation and simultaneously initiates the second violation so there is not an intervening arrest after which the second case occurs so even if you took the p representations which again i don't think you should but if you even if you did you would have to reduce the criminal history points by at least one because the first tell the two yes and that would cause the criminal history to be reduced by two and you have argument independent of the p s r proper as to why it should be done to one rather than down to two i'm sorry well i in reading your briefs i took the arguments of one side to be that it should be one and the other side it should be three correct if i look at the p s r it looks like it should be two assuming that a citation is not a and around that would be true if the government had hear it it's burden but it didn't the defense objected so it was on the government objected to that particular lesson objected to the characters ation of number thirty nine but yes it's said that that it believe that the p s r was in accurate with respect to the traffic violations and sentences and when they were  imposed i see that's that's in the amended response of the defendant and it's paragraph thirty three of the district i didn't really need to get to that because it did so that the citations were arrests right the district court didn't make an explicit ruling i just said there were three it just came up with a category of three that's correct i see thank you what about the loss calculus of the loss that's another part of your argument that's correct but you go to that in the two min but there was an arrest i know you say there's no evidence but the peer saw but if we accept the facts and the p s r that wasn't arrested during the second and the third traffic yeah there was an arrest i think it was on october twenty four there was by understanding it correct if there is an arrest then then those then these convictions are there's an intervening arrest between the that means that our position is that because it's the r assertions that you would have to rely on that have been objected to the government needed to show some sort of evidence of what how these proceedings occurred oh so you say there although there was an arrest they didn't show that there was an arrest  saying that there was an arrest also you're in testing whether there was an arrest that's correct because the defense if you look at the objections that i misunderstood i thought you told judge will that there was progress if you rely on the p s r assertions which thank you think the court it represents that it i got to check the record it does date it was in rest between the second and third if you take the p s are correct but that was the first in the second traffic violations however would still be related if you want it would be one point sank you for that clarification go ahead to judge marcus's question on loss ok so with respect to the last the government is asking for seven point seven million dollars of loss part of the figure eight hundred sixty eight thousand is the tax loss which we are not contesting the six point nine million dollars of loss that it's requesting is based on to be one point one note three f i which is it states that a minimum loss for access devices is five hundred dollars per access device now the problem with the government's position is that it never even approached showing that there were access devices so that note three f isn't even triggered because there is no evidence in the record that there at the base that last figure on an access device what the government does show it relies on the factual proffer from the plea and the only thing that's listed in the factual proffer of the plea is a more broad term of identities which the government never defined and which is personal identifying information those two terms are very broad they are similar to terms that are defined in the guidelines like a means of identification or personal information which are both defined in to be one point one one where all the definitions are those are very broad terms that include not only numbers and names but it includes things like fingerprints voice prints retinas and it doesn't have the purpose for identifying information that the government refers to in its factual proffer is to simply identify a person very different than an access device access device is a specific legal term is defined in the guidelines under to be one point one no ten which incorporates the statutory definition under eighteen u s c ten twenty nine so an access device is and is a number or a code or a card or something of that nature that gives another person access to an account or some money or something of value also personal identification number right like a pin it gives you access arsenal a difficult number why in a social security number or personal identification but number it may be don't think that this circuit has decided that issue in a publish audit our kids have decided that and we haven't many non published case but what the government relied on is that correct yet in some unpublished decisions there's reference to social security othe circuits have set a personal identification i'm not sure what is right or wrong we got to go to the rest of the clause social security number is brought to encompass a social security number it maybe is not definitively decided by the circuit but that is not really relevant to this case because in this case the government didn't say that had a certain number of social security numbers the only reference to social security numbers the government relied on was in paragraph twelve of its factual proffer it said that it had numerous social security numbers numerous is not a number that you can put a figure to ok so the so security numbers are there but you know that that issue is maybe in another case might be relevant but for here it really doesn't help the govern we're down to where the credit card numbers  the factual proffer the only quantifiable access device that we would concede is it said that it had three hundred thirty one debit cards so we would concede that those debit cards and that's in paragraph fourteen of the factual proffer we can see that those debit cards are access devices credit cards also the government didn't list any credit cards it only listed information which you did not describe i did and identities which you did not describe the only other thing that it referenced were these cards which it quantified at three hundred thirty one and i'm just going to turn to the facts of proper just so your honour's have an idea of how very very big it's it's factual proffer is in paragraph twelve it starts out by saying that twelve a one had four notebooks with personal identifying information in them and that's that's i've got it here what paragraph paragraph a so it says it's p r information that these notebook had in them and that's all the description there is it doesn't tell you what the p i a s doesn't tell you how much p i m there is it just says in them in paragraph twelve two it talks about two computers the evidence is on the screen of one numerous social security numbers but it doesn't give you a number of just as numerous and then says and other p i m from ation so it doesn't tell you what the p from ation is it just says it it is may ask you a different question you also make the argument that the district court erred by failing to make a particular rise finding regarding the scope of the activity her right that's correct tell me about that well with respect to that i think that the the argument that i would talk about here with your honor does the district court make any finding about the allocation of responsibility  yes it is now me why well because the last needed to be proved and the government you know the court didn't have any findings to do the court could not allocate responsibility to the defendant for the acts of others in the course of the conspiracy and until and unless the trial judge made a determination about her role in the scope of the activity that's the essence you know no that was only raised with respect to those two issues is that correct yes with respect to the time period of the conspiracy and with respect to the black trash bag and i'm right i understand there's a suitcase a trash bag and seventy thousand something like that from a prior period correct other than that you really didn't make this argument you're making below is that correct yes but general argument we would review only for plane errors right yes but let me just back up a little bit the maroon suitcase and the black trash bag are a big deal because if you read the government's response they say that the bulk of the information was in those i don't know i understand that but if we disagreed with you on the on the suitcase and the bag and is it seventy thousand or something like that from the period if we disagreed with you on that then the remainder of the argument that the judge marcus was asking you to respond to or to describe because it's your argument was not raised below that's all i was asking so we would have to look at all i would we have to look at that aspect of it on a plane or basis is that correct yes it is what i would use like to also explain that the last figure was disputed all the way through they had to take a paragraph out of the plea agreement because they didn't agree on the last bigger and they carried it all the way through into the sentencing but the specific argument that i'm making about access device that was that particular objection was not raised by the defense and in addition if we were to look at it and it is a to two points but let me just say right it wouldn't help you with the point that judge rogers is making unless you got to that base it wouldn't make any difference correct but again the even though it's on plane air this is plane air because you have a very clear right there has to be an era it has to be plane it has to affect the substantial rights wrecked and overlaying all of that it has to go to the fairness and integrity of the proceeding but it's the third prong of that plane that i think the question is going to how would it affect a substantial rights because it effects the guideline calculation when you go through the factual proffer and you see that they have no access devices except for three hundred thirty one debit cards that reduces the loss to about a million dollars just under a million dollars and that's a difference of four points under the guidelines so that it doesn't matter independent of the other items the trash bag and the suitcase yet as far as the exit because if you read through and just i want to address to sharpen the question and the answer it makes a difference even if we would disagree with you about the trash bag and the suitcase yes and i would like to address the trash bag you've only got a moment or two because we've got away beyond we've already ten minutes over so take just a moment to make it ok i just wanted to call your attention to the again the factual proffer with the black trash bag and the maroon suitcase again there is no quantity it's just a category that they're trying to substitute in for access device and that to separate out the statement they found twelve thousand one hundred twenty four identit of persons in all whether it's credit card tax returns or so forth what about that if they had specified what about the identity they had so that if they said so show on social security that they have anything that word it's missing evidence to show that it meets the criteria of an access device which is a very specific and defined term well it says personal identification number no it says personal identification information and says perkiness as identity those arsed terms that are similar personal information as defined in the guidelines thank you you've answered the question thank you your honor thank you will give you your full rebuttal it may please the court trinity jordan on behalf of the united states and with me this morning is cynthia wood who was the trial a u s a i will just go in order of the public counsel and the issues that she addressed to you this morning here in the district court probably assigned criminal history points to right regarding her prior convictions for driving while her license was suspended you got to look at exactly what you was objected below the appellant counsel made assertions here this morning that all this was actually objected to but the actual objection and was that whether it was a thirty day sentence or a thirty eight day sentence in regard to these traffic citations it wasn't the actual facts of if there was a citation if there was an arrest it was how long that of an adjudicator sentence took place and so under the guidelines and for a warning to see to when you look at suspended license it didn't matter if it was a thirty day adjudicated sentence or thirty eight day because thirty was the cut off of when you can actually use the driving under a suspended license to calculate criminal history points so that's why history points and this wasn't just the three criminal or the three times that she had driving driven with a license suspended or revoked this was actually six times that she had done this and the district court probably assigned assigned those criminal history points i asked about i'm a little confused by that and numbers thirty eight thirty nine and forty is that we're talking about now yes or yes and that's what was disputed in the br going by what i read in the briefs you're right you're on and i took the two positions to be you took the position that those were three critical history points because they were intervened there was an intervening citation which amounted to an arrest yes i was your position so yes around three in your posting counsel's position i took to be there was one because those don't count but it appears as judge ho mentioned earlier that there is an intervening arrest according to the terms of argument in your briefs no is that correct no why not because in fact the other side says you can see that if a citation is not an arrest there's only one if we can see that but we don't concede that we understand but if if we disagree with you on whether a citation is an arrest then you concede that these should only be counted as one they say that you do in effect conditional concede that do you and don't you when there appears to be from the language here one intervening arrest that's my question you know i mean if this court happened to disagree with us that that's what i'm asking there were not for the moment we can't pre decided i don't know what my colleagues will say it cetera et cetera soon for the moment that there that a citation is not an arrest right then and there would be and you get the she said you're opposing counsel suggest that if that's the case you can see that there's only one point from these three items but it's but i'm wondering why you didn't argue that there would be at least two are you with me yes yes that's the answer to that well if you look at the briefs through it's interesting that we were actually the ones that pointed out this is not asked and i'm asking what you know is it right right are you conceding the point it's really a simple question now we're not conceding the point even though you didn't raise it right ok why not maybe because this morning defense counsel conceded the citation is ok for an arrest so what what do we do here if if we disagree with you on the citation issue two circuits disagree with with the district court on that right correct then that would be what would be the thing to do here to send that back so that you all can make arguments you didn't make before or just say that amounts to one and figure it out from there well i mean it would be do you agree or are you about what each side sorry about what the other side conceded it's confusing right well your honor it would be to criminal history points if you disagreed with us on the citation issue and because we conceded the fact that it needs to be remanded to be recalculated anyway based on the but we do but we do believe that intervening arrest the citation is an intervening arrest within the context of the sentencing guidelines and we do believe that morgan in the seventh circuit was correct in and  in this cabin within the sentencing guidelines that that word arrest does equate to to the citation that was issued and so there should be a criminal history point attributed to that service if it driving mckeown has a pretty forceful i know you don't agree with that concurrence in the ninth circuit how do you respond or points no i was so it's in her concurrence that this idea of the you know the average everyday person without a law degree would read the word arrest and would say you have to be handcuffed and taken down to the police station but i also believe that if the average everyday person on the street without a law degree if you explain to them this is why the sentencing guidelines were put into place is to arrest i mean so i think you need to move on to your next week we've got that yes ok yes or do you want to go to that we can go to talking about the calculation of losses as is and let me ask you a question about that did the district court make a particular rise finding regarding the scope of the criminal activity of the defendant and took and if the answer is no is that not require and remained no the district court did not know it does not require vacating it or remanding it because this was not this was all conduct that was attributed to her in her apartment with on her possession this wasn't this wasn't any other conduct or any other items that were found in any other place with any other persons other than her so there  didn't your point is that she was only everything that was attributed to her was attributed to her for her own direct conduct rather than vicariously through the act of others involved in the conspiracy director on therefore the district court was not obliged to make a particular rise finding of scope director on her correct and to that objection below when it came to this calculation of loss it wasn't if this was access devices that race for the first time an appeal here for on plane air but the what was objected to below as judge rogers pointed out was hate anything t happened precept temper when it came to the i r s refund amounts which is that seventy thousand dollars which the government can see it doesn't matter for the calculation of loss the probation office wrote in the p s r amendment it doesn't need to be even take into account that was objected to the other objection was the black trash bag and the room suit case we had a total amount there wasn't an objection to the total amount that wasn't the objection it was just within this total amount these two items were not to be attributed to the defendant the government put agent stager on the stand agent stage or said listen we executed the search warrant eight months actually said six months on the stand but it was eight months after the defendant had been living there the claim from the defendant was this was left by a prior tenet and agent stager said we executed the search warrant six months but it was eight months after she had been living i talked to the property manager the property manager says there's no way anything could have been left there because anytime a tenant moves out we go in through and clean the place and we repaint the place and so i think counsel is more or less agreed that they didn't raise this argument in  the general sense but as a matter of plain error which would apply if they didn't raise it the the not enough of the stuff whether inside the bag or not could have five hundred dollars attributed to it and so for more findings are necessary you're right you're i'm taking her argument anyway well i think there's two there's two arguments kind of sandwiched in here is one the total amount that was found there and then and then the second argument is are these an authorized access devices and that's the argument that's now being raised and the reason why i would say that it fall fails under playing air is what was pointed out here this morning is there's no case on point in this circuit nor the supreme court that would direct the district court that social security numbers are not unauthorized access devices or that these job applications with birth dates and then a personal identification information that would allow somebody as judge hole was pointing out eighteen u s c section ten twenty nine doesn't just say personal identification number it also says or other means of account access the can be used you can access somebodies account with a slew of information about them this wasn't just mail that was you know somebody was stealing a bunch of mail and hoarding it in their house the the proffer says that we not only do we have social security numbers we had gift cards debit cards credit cards with other people's names on them job applications from the department of labor all this and i think her argument is you don't have numbers associated with all of those items you know it doesn't say we have three hundred of item x and five hundred of item why you're correct your honor the only number that was pacifically attributed was the three hundred thirty one gift cards debit cards and that's on page six of the factual proffer proffer i know that what we were referring to earlier in the factual proffer but on the very end of the factual proffer  actually does say credit cards debit cards a gift cards three hundred thirty one it with other people's names on it it does specify that they found twelve thousand one hundred twenty four identities and the and the apartment and that two thousand and ninety identities are actually found on the and computers and a flash drive that was located in the apartment so yes it was it's specifying like within this laundry list this is how many were social security number that's her argument right right but that's not what was objected to blow it was just which ones out of all of these were not or not you're correct to distinguish between the argument about what's a and what's not but what about a  different argument i'm not sure it's raised but i'd like you to address whether it was raised and if so what the answer is that there wasn't enough of an eye anough of a determination as to how much was attributed to this defendant these of the other members  in the who were dealing with these things who were operating out of her her house who was there was no breaking out of what how much of that was attributed to her as opposed to attribute it to other people right that are human being raised well what it was raised in the sense of the minor role reduction oh no i'm not talking about right but in this sense it wasn't raised in this calculation sense of the calculation of loss and what would you do had it been properly raise how would you can you sketch out what your response to that would be because it doesn't there's not much in there that says how much was attributed to her versus these other people we don't even know who those other people are right well this was a directly attributed to her i mean that's i see that i mean this was she'd been living there for eight months when all this was found she's only your answer simple one your answer is there was no reason to attribute this much to her that much to the other one and then say she's responsible for the other conduct because everything was attributed to her directly it wasn't a vicarious or a d kind of attribution is that the heart of your argument that's exactly it your honor and that's why the government even conceded to that the seventy thousand dollars of i r s government claims prior to september that would not be taken into consideration first calculating loss is maybe it was a tribute somebody else but it wasn't going to affect anything on her sentencing if there's an if there's no further i'm looking at the pre sentence report  i mean that was already there when i leased the apartment right at the plea called plea that's what the defense counsel actually said to is when the factual proffer was given was we're going to argue loss at the set at sentencing so it wasn't they were arguing about the numbers the numbers of personal identification for ect thousands correct your honor correct if there is no further questions your honor the government requests that  you reserve five minutes would just like to start with the loss below it was objected that there was that the scope of the conspiracy was more narrow for the defendant than what the government was saying that wasn't it's fair to say what the judge did is he attributed everything in that apartment to her and therefore did not have to make this kind of particularize finding derivative vicarious fraud everything was her responsibility it was in her apartment i don't think that's not a fair way to use it or is that wrong i think it is not a fair characterization because there was evidence and even the agent explained that there were other individuals involved and under the guidelines one b one point three about relevant conduct even in a conspiracy you still have to figure out what part of the conspiracy the person is responsible for and so i don't think it could just be attributed to all of her because there was evidence to the contrary there was you  know the admission that there were other people in the conspiracy and there was no particular finding even though the defendant was objecting to her role and the the if the trial judge had said it occurred in her apartment it was all there i attribute the whole loss to her i need not break it down between har and other disciplines in the conspiracy when i get one of them in front of me i'll take care of them but as for her it's easy it's said that that would have been the end of it right if you had made a particular finding about it said what i just said you couldn't make your argument that well you know your will to make it thing is that the defendant had in front of the judge specific objections about not only the date of her of her participation but also with respect to the black trash bag and the maroon suitcase which the government has acknowledged was the bulk of their of their last calculations so i think the judge was it was imperative for the judge to make some sort of finding with respect to those items at least and so as he says a scope of wright's own criminal activity as to the scope of you know the criminal activity within the conspiracy what her part she was denying what her responsibility particularly was she was denying what that that the trash bag and the maroon suitcase that she had anything to do with those so the judge needed to find make a finding there so on that basis alone i would say that the case needs to be remanded and i just want to go back to the issue that admittedly was not raised below which is the access device  issue for the last calculation i'm going to go back to the factual proffer because it's think it's very important to understand that no three f is a very specific rule in order to trigger that you have to have an access device and it's if you read through the proffer ok and we've conceded three hundred thirty one debit gift cards those are access devices but that's one hundred sixty five thousand dollars with a loss not six point one million it's as though the government for the rest of it came in with a big black trash bag put it in front of the judge and said here's a big black trash bag of personal stuff and i could tell you what the stuff really is and we're not going to tell you how much stuff is really in this bag but here's a big black bag of it and so on that basis your honor give us six point nine million dollars six point one million dollars worth of loss figure based on access devices that kind of argument when you look at the actual proffer that's exactly what the government did and there is no reasonable basis that the judge could base a loss figure for an access device based on a big black trash bag of personal stuff because personal stuff is not an access device and if i could just go back also to the traffic violations council was making some representations as to what the actual objections were the council me below council said there appears to be a possibility of an inaccuracy with the sentencings and the date of the imposition of the sentencings so council wasn't just objecting that it should be one point versus three he was objecting to the dates that were listed there p s r as well as the number of criminal history points that were given so it was incumbent upon the government to come forward with evidence of the traffic violations is it your contention that that second driving also suspended did not have a arrest it wouldn't matter because the the arrest if it wasn't arrest if it was a pastime it would have happened prior to the third now and so the third offense ok all that what i'm saying it would have broken it down into two yes our but there was a specific objection to the accuracy well it states that it and i would also just like to say to you know well you're going to have to bring it to work close in literally one sentence because we already got eleven minutes over in your argument united states versus smith thirty nine f third eleven forty three with respect to the objections the defense counsel made thanks frank you very much thank you both will proceed to the next case