enhancement if i could the one thing that the government and defendant are in agreement on is that the finding that this was possession of an authentication feature was erroneous that's off the table so next argument advanced by the government for trying to go ahead and apply its enhanced meant has to do with production of an access device arguing that the bank account numbers on the carpet checks constitute production of an access device there are two problems with that argument your honor one is the judge back of why went ahead because he wholesale adopted the present its report found that there was no production that could be traced back to my client the second and bigger legal issue is that these were on checks and checks paper instruments are specifically excluded from the definition of access we need to reach the legal issue because one of the things that i was struck by is that the pre sentence report that the first draft of the pre sentence report had utilized the same section with a somewhat different theory and as i read the amended pre sentence report it withdrew that theory on the ground that there was no evidence that mr cooper had engaged in the production so your position is that finding which is adopted finding that is no production absent that being clearer you don't even get to the second issue the second issue in terms of whether the paper check constitutes an access device the government agrees of paper check itself can't be an access device but says that the account number on it is an device and therefore that takes it out of the exclusion what we our position on that frankly is that this goes to everything related to the carpet checks there was fraud perpetrated with regard to the window and door place which was through wire transfers and that's what he pled guilty to and that's what he was primarily sentence for then end up finding this batch of checks in his apartment there was never any fraud perpetrated with those checks and so it really ends up bringing us in many aspects of this into speculation as to what those checks were for the government says well we can infer that they were going to use the account number for a wire transfer but a that never happened and be there on the face of checks and he says well we can do it because they used wire transfer with regard to the door and window place by the door and window place there are never any checks so in terms of comparing those two from our position is apples and oranges to be clear you're not contesting that it could be inferred that those checks were intended to be used in some kind of fraud context here but the point is for this enhanced meant to apply they would have to particularly on the government's theory there would have to be some kind of finding not only that they were to be the checks were to be used somehow in a fraudulent manner but that the account number on the check was going to be used for a wire transfer specifically because otherwise even on the government's even the government agrees it wouldn't be ok and better articulated that i could your honor so that's our position visa v that theory of the government so then we get to the third theory of the government which is that unauthorised issue and from our perspective i mean i think it's an easy hypothetical if if an individual authorizes somebody to open a bank account for them which is what the factual predicate was here and then the defendant individual who has opened account uses it in a fraudulent manner in a manner beyond what the person thought they were going to do we don't think i don't think that goes ahead and fits within this enhanced in your honour's that that unauthorized use that fraudulent  that's the underlying conduct that's the offense that's where you get the base level this enhanced in a supposed to add to that by saying you did something else on authorized you went ahead and took a means of identification and created something else here k y specifically authorized and hypothetical on the really bad sign i am to to defraud him right from the get go you know i got his permission to do this right from the get go and i said no your honor that doesn't make this enhanced man applied it does make my conduct fraudulent but in terms of if he says yes  than it used to do on authorized way right by just saying the authority of authorization only goes as is you focus on whether the numbers or the accounts were authorized not you don't look at the worse in the words of the guy online is using one means of identification without authority to create another means of identification and here you're saying that the use of the first means of identification to create the bank account that is somewhat peculiar leap with under the definition a means of identification that was specific that conduct was the civically authorized and so this is not the same case and is not as bad as a case in which i steal your checks let's say like the carpet companies jacks and then use those checks to create to get a driver's license or something in the same name thus creating or open a new bank account th d so at sentencing and which ends up going to the plane air issue that i mean the easy answer is no because this wasn't addressed at sentencing at sentencing as as as you can addendum to the p s i i which ended up making these two arguments in the intendant but when we got to the sentencing argument there was no discussion of any of this the issue really had to do with is this an authentication device and was it knowingly possess and that's what the defense talked about and that's what the government talked about i mean in other words you record the issue here is that the actual thing that the judge found which again is just a blanket after all this discussion there's a judge just says i adopt the p s r right what's in the p s r not really a denim where they talk about other possible theories but the actual guideline calculation that the judge addressed adopted used a different theory that you've already talked about the the government now or greiss wrong and the government is now adopting this theory of the one theory that you're now talking about as something that we should say it doesn't the fact that the judge not it's a convoluted use and frankly it stretches from our perspective a plain error where my defendant and the attorney representing obviously objected to the enhancement objected to the only enhancement on the face of the p s i never had an argument about this by either side so that's the status of your answer to judge williams question is actually no we didn't raise this argued against c one because c one wasn't on the play at all in this in the discussion before the judge in the first place the defendant was focused on what was the theory in actually everybody seemed to be focused on the theory that was already withdrawn that was in the original t s r but the one that the judge adopted is version t it's also an alternative theory addressed in a den to them that explains why the probation department has withdrawn the theory that was in the original pre sentence report right when the amended pre sentence report has a calculation a new calculation and it explains why the probation department is applying this announcement and it doesn't use the c one theory it uses the eight to theory that we now all agree is wrong anyway but i think it's it's i think the addendum types of the access of a device not an authentication feature so it agrees with the defendant that he may not have had possession over the checks but it goes it does talk about the access device as a as a possible grounds  and again i think when he when the judge says i you know i find the information in the p s r that he says exactly the total offense level based on the information the pre sentence report which i'm going to find accurate by a preponderance of the evidence takes and makes the offense level twenty do we even know what pre sentence report he's talking about because it is i mean i would what he said if we assume that he's talking about the one that is then operative the amended one  but all the discussion by both parties and by the judge seemed to be focused on the theory that was advanced in the original pre sentence report and withdrawn in the amended one but i think i  attorney referred to it and they both argue as if they are arguing about not the agenda not even the amended pre sentence report but the original pre sentence report i'm just wondering is there any reason why we shouldn't just send this back to  ask him to explain what if anything he thought he was adopting we wouldn't oppose that your honor it's just i think as a practical matter mr couey gets out in october so this would have to be done  because both sides have an obligation to raise this issue and the defense council really signaled and this is part i may be an effect of booker he signals very quickly when they're talking about this he says that frankly i'm less concerned with the means of how we get to the exactly what he dead if the question is more kind of an ott question should the supply i think you look to the intent of the guidelines in the amendment that we're kind of talking about and it was that amendment didn't lower the bar or restaurant raise the bar as to what constitutes physick no sophisticated means it just said you have to be directly involved and we have that here and again the intent was to make sure that the food the most or the himself over thirty thousand dollars for himself he was in charge of a large sum of money so for the very same reasons that the mitigating role it just doesn't apply i think you can't say he's the less culpable so and this is something also that was not objected to at the time so  just articulate for me exactly what distinguishes mr cooper louis from the scenario that we see fairly commonly where some fraudster devises a very complicated scheme to steal identities and open credit cards in order merchandise all over the place and some housewife is recruited to accept the package knowing that it's a fraud not knowing anything about how the fraud is is calculated and in effect turns over the proceeds back to the front street i think mr mclaughlin's argument is that's cooper louis he just sits there and binghamton while other people devise all of this and he doesn't just get a package of merchandise and hand it to someone granted he gets proceeds in a bank account which he then transfer as a broad but i think the argument is the same thing why is it not the same thing i think it is this does then accounts in september at the same time that the victim was being defrauded and sending money and he was taking that money and deposit it he understood he was found with on his phone a picture of this in crony bank application he's also receiving correspondence from other victims directly to him complaining about this so he's he's not just some kind of a car going to machine he's he's definitely one of the entire scheme and how it works the synchronous synchrony accounts which are also taking money from a third party that has no idea shuttling it to k y k y then sense to him and he puts it in his own bank account and then sends it overseas he knows this whole structure and so i think that gives a meaning to his his what he's doing he's trying to conceal his assets and and i think concealing assets like that easy is directly involved in this more complicated maneuver defrauding one person evidence linking him to knowledge of the synchro and the way the synchrony bank accounts were being used i think if you're looking at the intent behind the application i don't think it's the amendment i don't think it's to try to protect people like mr cooper louis i think it's you know if you look at the examples it's people who really were doing very small things that were necessary much more complicated as the scheme as a whole which is what we're supposed to look at  in terms of all this his no i just specifically a factor in terms of whether he gets a minimal role or just meant i mean they talk about what you know about all this stuff and that's probably even though i argued it probably pretty high bar for me to get over into my third argument but it is not what the sophisticated means amendment is about  of these to point to just if you get one of these two point adjustments off and the judge doesn't say well i don't care about the guidelines i think it's a thirty three month sentence anyway that's the best you can hope for because if you know it was wouldn't right and then he'll decide hopefully based on what he said before given his age etc he'll go on the lower end but that would be the best way unfortunate i'm not admitted in that district so i would try to arrange to get somebody to do it you do what you what you want is for us to say substantively that one or more of these enhanced means do not apply not just to send it back to the judge to reinvestigate the facts or something like that is the problem is that might be there might be facts that need to be found we will have to decide that and is there any way in which that would make him worse off it is the idea that if we send it back and in the judge has to engage then he is not sentenced to get one hundred sentence and he's in