yes ok all right let me tell you how that's going to work so i know when you're sitting there and he just goes into rapture and goes crazy then you're thinking like he's taking all of my time all right if we're asking him questions if if we feel he's done in six minutes off stop i'm ok but if we have other questions i'll make that on our nickel and i promise you'll get four minutes all right so remove that stress and if i feel that it requires any compensation for the appellee then to answer the questions i'll handle it that way so i'll make sure that you get say what you want to say and we get our questions answered but that doesn't mean you to why the guidelines to level increase applies has shifted somewhat throughout the course of the proceedings but the way i understand your theory now is that the two level increase was based on copies of driver's licenses that were put in the beneficiaries files there's two main fundamental flaws with that theory one is factual and one is legal the factual problem is that a copy of a driver's  power separate conduct that is involved in the use of means of identification to implement the fraud if the underlying conduct is distinct why is there a concern about double counting for conduct related to using a means of identification ok the the distinct conduct basis does not apply based on this court's decision in united states versus aquino which addressed a similar  lying provision and what that case basically says is that these types of commentary to the guidelines would say don't don't do this twice that you can't get around it by saying for example that was a gun case that well the in that case was a nine twenty four c consecutive that was based on one gun and then the two level increases based on a different gun this court said no you can't do that you just don't apply the increase it doesn't matter whether it's different conduct different guns different identifications that's not that doesn't get you around this particular cometary so seems to me like in that case the second gun or the dish will guns were more closely tethered to the scope of relevant conduct or hear the district court really focused on the complexity of the scheme and talked about the fact that the consecutive sentence was really for the sophisticated seat which didn't meet this additional conduct preparing and maintaining patient file order to make everything look legitimate so he thought from what i can comments that it was qualitatively different so does that take it outside of the aquino analogy i don't think so because the guideline itself says don't apply an increase even for relevant conduct concealing the fraud is relevant conduct so it doesn't matter whether it's two separate types of conduct in fact we said in a circuit case for example where a judge used one  twenty eight was for one piece of identification that was a counterfeit driver's license but then he used it to level increase for a counterfeit credit card that was the government's theory and the answer he said no you don't get to you don't get to base it on different types of conduct or different types of identifications the guideline is clear don't apply for and don't use this for any increase at all you get the two of the two you're consecutive that accounts for this type of conduct and we've got two seven circuit  means of identification i mean there their reliance on these copies of driver's licenses are simply means of identification the driver's is not it would only apply to an authentication feature not an identification document but number two there's seven circuit cases make clear that something can be both an identification document and a means of identification both and that's what a driver's license is it's i don't think so i mean i think that there are you know potentially examples where they can still get the three level increase in the governor's mansion holograms for example i mean we don't have a hologram situation here because we're just dealing with a copy but potentially in some other kids perhaps if some hologram is being used the government might be able to simulate that's really the use of an authentication feature that's distinct from a means of identification but we don't have that situation here we have copies of driver's license so it's the same thing a copy of a driver's license all that is the embedded means of identification the name the birth date the driver's license number all right those well that would be a point i would make then but i would note also that the enhancement separately is also appropriate because it was for authentication features and if an occasion feature is not the same thing as a means of identification and i hear you break that within the scope of relevant conduct and so the application note is very clear that you don't double count it conduct falls within the scope of relevant conduct so what is your counter response to that and two responses the first is you don't account for means of identification that falls on the relevant conduct so i suppose arguably if it is recorded said well there are also names in insurance numbers and patient files and there might be an argument but that's not what the feature is really the same as a means of identification so when you address that yes your honor there are three lines of cases that i believe independently demonstrate that to be one point six no two is narrow in the sense that it only applies to enhance meant specifically for the possession use or transfer of a means of identification so for example if you look at the taylor decision at the eleventh circuit that says and held that producing a means of benefit cation in that case an access to vice was not barred by the handsome and obviously even that you have to possess a means of education to produce it and if you look at page sixty seventy one it said by producing unauthorized access devices the conspirators further the criminal scheme and created more opportunities for the prohibited conduct to continue which was precisely the reasoning of the district court here so what in the event the patient featured the government's relying on in this case the authentication feature would be those features on the driver's license in at the clinic and that the photo copies were made from those actual copies so the evidence doesn't stablished that they actually possessed and used the actual dock identification documents themselves in any event i'm not aware of any authority that says that a photocopy of  authentication feature isn't an authentication feature the purpose of photocopying them was to show then to the auditors to say look these people are really here they're really legitimate patients and the authentication features on the photocopy serve that purpose just as in the other decisions i cited applying that enhancement by making them look legitimate that would be like the baker in the rodriguez decisions that held that providing a driver's license for mortgage fraud requires use an authentic asian feature because it obviously the recruiter they need to think that they had to keep real patient files that meant they had to keep what appeared to be real doctor's notes and also real copies of the identification documents which as was noted previously wasn't necessary to the fraud but was simply done as part of the concealment from the auditors particularly to thwart reports by identity theft victims that their identities had been stolen to make it look like they'd been there and then in some instances to follow it up and say that these were elderly victims who have dementia but here are the documents that prove they were here we have their driver's license for example i do want to follow up on two other lines of cases that that show that to be one point six is near zero in the prior opinion in this case the defendants argued that the victim enhanced it was precluded because the individuals were only victimized by use of the means of identification so the two are intertwined but this court rejected that argument held no it was for the number of victims not for the means of identification so under the government's theory let's assume that there's a perpetrated soley by the use of a driver's license or not going to mix it up with medi cal medicare card social security cards and so forth so somebody can take that driver's licen asian features were specifically used by the offenders for the purpose of facilitating the scheme then i suppose yes it would apply or the district court certainly would have discretion to apply and gas cruize recognizes just records extraordinary discretion to make those determinations but that's not what happened here and the district court was well within its discretion to apply that hits me on the facts here i do i wonder the third line of cases just to get to that which is the melendez the hania knowlton decisions the first two out of this identification documents are distinct from means of identification and in our decision on johnson's first appeal we explain that driver's licenses qualify as identification documents right how can we reconcile those statements with eighteen u s c ten twenty eighty seven which defines means of identification to be among other things government issued driver's license it actually refers to driver's license numbers not driver's licenses  and if you look at the decision in the northeast asia and explicitly noted at the distinction that there's a difference between a driver's license number or a passport number or social security number and the card itself and they recognize that the two are not the passport number and again that's exactly what occurred here by misusing the authentication features they gave rise to additional harms they continued the purpose allowed them to continue the scheme and it was necessary to execute the scheme itself but that is why jang the seventh circuit decision cited by the defense is not good law in this case jane is the only decision that i'm aware of that even arguably expanded to be one point six beyond its terms by holding that a passport is a means of identification because it's embedded with means of identification in the name a passport number one melendez stands for exactly the opposite conclusion in an extended that a to b one point six context in this court in an old t the first circuit explicitly rejected zang and adopted this court's holding in the lender as agreeing that there is a very important distinction between the identification document itself and the means of identification and one of the reasoning in ulti is also political here which is that there are provisions in ten twenty eight that use both the terms means of identification and identification document and authentication features so ten twenty eight b two applies an enhanced sentence for certain offenses that involve the use of a means of identification an authentic asian feature and  authentic asian feature is not a name or a number it's not embedded with a name or a number a symbol of the state of california is just a symbol of the state of california it's not an identification number s number for example so there simply is no reason to say that at least in some circumstances it mean that it's follows that at least in some circumstances authentic ation feature is not a means of identification and for that reason alone the district courts  abused its discretion is decision was not illogical or implausible or without support in the record council we kind of over time you're going to have one question because you don't get to get up here again there is another argument here the one of the defendants that statement is supported by the record the issue is not whether any judge here or defense counsel would have reached a different conclusion but simply whether it was reasonable and here not only with a district court specific statement of reasons reasonable it's first second of all overall assessment of the thirty five fifty three factors given to the scope of events bad conduct rendered the sentence reasonable and the sentence was below guidelines and as this court has recognized it it's a very rare case where appreciate it very much as does dr john case can't so i got to keep the promises that your honor i don't understand that to you i think we can say that this is perhaps unnecessarily complicated by the government's argument if i can point the court to page twenty one of its brief and simplify this to quote the enhancement was based on the fact that the defendant and his coconspirators maintained copies of the driver's licenses of the purported patients in the bogus patient files to try to fool auditors into believing that the prescriptions were written to legitimate patients that's the government's written statement as to why the enhancer was imposed that enhancement teams contains excuse me that statement contains two critical concessions either one renders the decision should be in our favor so first the fact that it's copies we're talking about authentic authentic features in other words something that authenticate the document as being a legitimate for example a hologram that's how you know it's not a fake id that some college kid is using it's got the hologram copies don't have holograms sentence the second concession is it was trying to use to try to fool the auditor and this is getting back to what the district court actually said and judge callan in the last case she said we're here being the court to review was actually in front of us and what is actually in front of us is the district court statement on page one seventy the defendant and his coconspirators possessed in use authentication features for purposes of concealment we know beyond any doubt concealment is textbook relevant conduct and as judge when it has i think pointed out there are these two separate analytical issues here but we're looking at what the district court ruled this is not we're deciding to the district court make a mistake an honest mistake and it's legal analysis the district court says i'm doing it based on concealment concealment is textbook one b one point three relevant conduct for that reason alone especially given the concession by the government that it was used to conceal it and the district court's finding that it's concealment this has to go back because it's textbook relevant conduct that is what the the application note says explicitly and for that reason it has to go back for the copies it has to go back because everything the government actually points to names numbers also fall within the definition of means of identification it has to go back this court doesn't have to take this this giant view of this case and decide forever and always our authentication are authentic asian features synonymous with means of identification we're not asking the court to do that just simply what's before the court r one seventy i'm applying this district court i'm applying this on the basis of concealment concealment is relevant conduct relevant conduct is no good under the application no and for that reason we would ask the court to