we happy to hear from you that you're on a good morning may please court and i'm semele harrell i represent mr carver we raised four issues in the brief first having to do with the adequacy of his rule eleven proceedings in front of the the second being that the district court committed a procedural error at sentencing and calculating both the amount of loss and number of victims in this matter and finally that the district court erred in denying mr carver acceptance of responsibility based on the district court's belief that his objections sensing were frivolous which i do not believe that they were as to the amount of l s as i laid out in the brief it's our contention that the government did not actually produce enough information to determine used there's no definitive evidence in the record as to the number of cards to calculate the loss one of the issues i raised was that so there's no evidence that act can see that definitive evidence that the numbers on the cards that they were counting as fifty one cards that all of those were usable or authentic numbers that could be used so in other words some of the numbers hand ease at the and some of them appeared to be legitimate cards which had been legitimately  activated and so there's no there was very young evidence as to fifty one cards and officer testified that there were forty four cards that had different numbers written on the back then were impost on the front who are was a crucial that the show every card was used or simply that the four you'd have to show that the amount of loss may do to the doctoring of the credit card was higher than fifteen thousand dollars right and the figure that the district court came up with w as twenty eight thousand and three hundred eighty two so even if you correct of that of not all of the you slice the cheese the figure would likely be above fifteen thousand dollars and in this case it was almost  twice as twice as high and there were fifty one cards that were in in some way altered and were fifty one cards that were president and i think part of the difficulty is that you're here on a clearly erroneous standard and the computation of the losses clearly erroneous and there were fifty one cards that were manipulated in some region i mean maybe in code it is a term of art of something but when they do when they were manipulated in that way they were certainly altered in the subject of a rather a very which the district court made is finding were that that magnetic strips on fifty one cards had been encoded with numbers that didn't match up with the front and that to me seems like an alteration and can't seem to say that the district court would have been clearly erroneous in taking that as a measure and even if some of those cards were not used to make actual purchases there would have to be a huge large number that were not used for actual purchases to get you under  fifteen thousand and the district court as a matter of common sense would be able to say well they were just up there in that hotel room where they were operating and playing a game it wasn't just you know a game of checkers or some they were but they were altering those cards for a reason not just for the heck of it and the district could be able to take that into account when not he would be able to tell the district court would be able to take that into account but i think there needs to be an adequate showing were actually used in the others went through the same process there's no testimony that the cards were actually used other than two cars one being the credit card of the gentleman that was used to reserve the hotel room and then some charges attributed to another victim and that goes to my other objection about the calculation of the number of victims but there's there is no testimony or that the government had made an adequate showing us military and so my contention would be that evidence is not present in this case to show that these cards were usable possess a device and they serve say the device means an access to vice that is counterfeit fictitious altered or fork or an identifiable component of an access device or con counterfeit device and it seems to me that they showed that it was altered with the re encoding that didn't match the front and the statute requires possession of a  are subsets of access and an access device has a specific definition which is which requires that it can be used to obtain a benefit or or illegal whatever so my contention is words which can be used it's just they couldn't be used with the original numbers because they're really in code but there's nobody suggested the gift cards couldn't be used so you start off with the fact they have gift cards they set aside the keys and the other things that were not gift cards and then they examined sixty four gift cards and they concluded that fifty of the sixty four gift cards had been altered and that's all the statute requires the gift card is a device that can be used to get money and then they all can but there's no requirement that it was actually used no i  don't contend that what i contend is that the evidence nobody has challenged the fact these gift cards could've been used the fact is these gift cards were genuine gift cards they were wherever they obtained them  you can pick them up and steal him from a store or whatever but the problem was these gift cards were taken and rian coated and that's where he found that they had been real and that i would think that would satisfy the word  altered it does except that his testimony again is that some of them were rian coded some of them were encoded and some of them had all the fifty one  ones that were not written coded he set aside he found three fifty one that were in code that didn't match the front so he had he also testified to honor that there were forty four cards that had numbers handwritten numbers on the back which to him indicated that the number in coded on the strip did not match the number embossed on the front and so the question becomes well is it forty four standard seems to me enough from which the i mean from detective dean's testimony and from the methodology that regime used and the purpose for which they were use than the fact stated at sentencing that he had considered the need for his sentence imposed to reflect the seriousness of their fans he said this type of criminal activity is a significant problem in the entire nation businesses incur additional c dumbs who are affected with their count numbers being stolen and almost irreparable ways are causing the amounts of work mental anguish monetary loss and lost the peace of mind this is  case and as the court has already pointed out in looking at the factors are the challenges that the appellant has made to the senate and the challenges as to the amount of loss as judge that issue when east that the correct amount should be twenty four thousand three hundred eighty two dollars and two cents thereby conceding that is greater than the fifteen thousand dollars that is needed to get the four level increase for this specific characteristic i'm not sure why we're arguing this amount of loss when the appellant has already conceded just to conclude he would have gone to trial exactly your honor especially in light of this case which was so unusual and that he pled guilty to counts one entity but wanted to reserve the right to go to trial and count three which was jury selection that was scheduled for january twenty fourth of two thousand and seventeen the case was set for trial on february twenty second thousand and seventeen right before this case was to go to trial he the waiver of indictment information and energy is guilty  playing february the sixteenth before judge austin it's unusual to plea guilty in front of a magistrate judge however and this circumstance where the trial is scheduled and it's the next week  week it was a scheduling conflict and therefore i think it was appropriate in this case and a good a good result for everyone to go ahead and get the plane on the other issue by number when he referred to the certain numbers and went through each one to like number twenty four on one eighty that victim was a victim whose card has been used to your honor i would just like to point out that again i don't view trial counsel's statement in the courtroom that there were that the government had proved  or someone whose cart was used now i will say that when i wrote the brief i indicated there was a shark it's victims and that's one thing but as with studying for any big test i realize that the definition of victim had been resolved by a two thousand and nine got an amendment that being said a victim has to have suffered actual loss or have had has to have their means  was from my understanding a hand written less the government counsel provided and was a combination of victims names and and information that was recovered during a two thousand fourteen if you so does names were combined on that list and so the government initially well my contention is there actually only t like transferred onto a car or possessed because that no i mean i'm mean the if you look at that you just told me that who's identification was used and they had the names of people whose identification they were using in connection with this fabrication of cards so there's a so that would be my contention would be that that would be a transfer of that card theft is disrupting and playing havoc with with personal law and electronic devices have multiplied the opportunities for fraud in the commission of fraud exponentially and they wreak havoc upon the efforts of busy people loves are committed with all kinds of different things and to have to take time may respond sure you're out just respectfully disagree that the names and information that the defendant had in the room qualify all of these individuals to be victims based on the definitions in the guidelines and just as a quick ending i would say that because we're here today arguing  things i certainly believe judges can erred in taking away mr carver's acceptance of responsibility i think there's no we're going over this we're talking about the actual amount of lost i just don't feel like if this circuit and district what would have to be clearly erroneous to be overturned that's that's part of the problem on on both the number of victims and the actual dollar amount you have to say in light of all this evidence  that the district court was was wrong and and as a matter of law we haven't adopted i don't think any kind of usability standard the