the next case united states versus corporate precedent the number of victims and handsome and is controlled by united states versus hall and i will begin with that issue this corbett's mere transfer of personal identifying information without more to not use that information for purposes of the number of victims and handsome and misc orbits p s r sites directly to application note for to to be one point one b to a which in means of identification cases specifically the united states versus hall this court looked at the same guideline the same application note and look to the commission's commentary when they added this application out in two thousand and nine rescue just a quick question about the fact we would just help me make sure that i've got these straight so korbut would steal the patient then a filing information sell it to weaver weaver would then give sell it to someone else who in turn pursuant to the plan if attaining it from her work transferring it to mr weaver and then the overall plan and purpose was that mr weaver would then transfer it again to the coconspirators that sort of the flowchart i've that that is exactly the flowchart and those coconspirators your honor would then be trying to commit bank fraud or tax fraud open credit cards fraudulent lee or file fraudulent tax returns that was the purpose of this overarching conspiracy  in united states versus hall this court determined that mere transfer just like miss corbett was doing in this case without more did not equate to use is a strikingly similar it is strikingly similar your honor both women were health care employees with have access both women transferred it obtain and transfer that information to their codefendant and both of them received about two hundred dollars for their efforts so it's  only some confusing language in the whole opinion about the purpose of the conspiracy but it seems to me it's got it has to be understood as a case where  use has to be used as a means of an identification and that a mere transfer is not enough that's got to be the holding that is the rule as i read it your honor that that the rule is necessarily use before you get to the enhancement and so seem to me that this is an issue where you have to establish plain error but it appears to me that you that you have the i'm having more trouble though at least for me i can't speak for the others with your other with your other argument it seemed to me did what with respect to the other enhanced men argument she make now about amount of loss to me don't worry you had made an argument in the district court about when your client joined a conspiracy and not being responsible for what and her card beforehand which i thought might have some merit but you haven't pursued and your honor we we do agree that under any standard of review on the victim issue our belief is we prevail because of united states versus on the facts on the record here as to the loss issue it is our position that united states versus washington controls it is the controlling precedent from this court on that issue and the reason that is is because ms korbut it is our position that she absolutely preserved this and she did so in a way that cited specifically to chapter one of the guidelines one b one point three zero and conduct provisions and that reasonably foreseeable language in that so much so that probation when they wrote record as you having made slightly different arguments below i mean it might they might vaguely fit under the reasonable for c ability but you were really making sort of legal arguments below it seems to me right and washington says you've got to contest it factually and so i'm and that's certainly the argument i'm making now but it didn't seem to be the argument you were making them so we early and often it is our position this corbett told the government early and often starting at the plea hearing that last was an issue here nobody ever contested including  us there's no objection to the fact that florida hospital paid out two hundred thirty two thousand and some odd dollars but the issue here was always how much of that was attributable to miss corbett and so under washington we believe that what we did was enough to trigger factually the government to come in and do something so as this court said in washington spreadsheets witnesses would be ideal that's the same here the summary chart and the statements from government counsel alone were not sufficient to address  two thousand and sixty eight dollars and sixty four percent and you didn't object to that your we didn't object that they paid out that amount of money to them or to the to the causation issue either to the facts you didn't  raise a factual objection to that so it is our argument that when miss corbett's trial counsel objected to the guideline in hand smith that that triggered the government to bring in certain evidence to prove that guideline enhancement because facts need to be presented to show as as it pertains to miss corbett activity in this conspiracy how that loss amount was accrued by florida hospital and the district court we are arguing should have done i think three things first evidence of the court should have made findings as to whether miss corbett's ten month stint in this two plus year conspiracy warranted two hundred thirty two thousand dollars worth of loss we have we still to this day do not know where those numbers come from precisely because all we have is a summary chart of the government counsel statements and so the fact that that issue at a minimum was was brought up in the p s r objections by trial counsel should have triggered at least that factual inquiry by the court and the demand for the government to do specific and reliable evidence as to that issue and so we would we would ask the court on this last issue do it in washington which is require the government to do what it what we're asking it should have done which is bring in evidence and under washington this court determined that it had a chance to do that it did not do that and it remanded the case without that enhancement here that's attainable swing for miss corbett now she is due to be released in three months and so it is essentially is a time served situation for her if this court re man's this case without ten levels but we're asking the court to do that even though we are close to time served anyway because we believe the government should have done something to show factually to the court why at least under chapter one this this whole two hundred thirty two good morning your honour's my name is steve because sure i'm here on behalf of the apple e the government in this case may it please the court the district court did not plainly error in concluding that there were ten or more victims under the facts of this case and going to rectally to judge priors a question about the controlling effect of the hall the the rule from hall is that use has a definite meaning that is different from the meaning of transfer and that for purposes of the application new information is used when it's a employee towards implementing the purpose for which it was obtained by the same token it's not used when it's merely obtained in transfer in a way which would not further the purpose of the conspiracy now to a lot like ours and it absolutely your honor i mean there's there are certain material differences which i can go into right now i mean in the the whole case the court didn't really address what it meant whether the facts of this case which are different in the sense that she not only access the information from the data hospitals database but she took steps on that information to commodify it and going to judge new sums question about the chain of events here that's not accurate your honor or i would sort of dispute the characterization  record as saying that there was ever an intent to to print a crop friday and credit cards or anything i mean from the perspective of hauling her coconspirator they didn't care what that information that was stolen and commodified in the form of face sheets that targeted certain vulnerable victims people over the age of forty people who were very young they didn't care what that information was th separately used for and of course if there were separate acts that were part of the conspiracy then those would be relevant to the analysis but here is the whole and so i know that's good when you see me inhale and you stop that's impressive i've been a lawyer of  know how that goes so i mean one question i have a concern i have about the messiness of hall which judge pryor was mentioning earlier is this purpose of the conspiracy language leads to indictments that look like the indictment in this case where you conveniently strategically whatever say you know the purpose of the conspiracy was and you say i was just to steal and transfer never mind what was going on sort of downstream and i worry a little bit that we might be sort of reverse engineering indictments to way that a crime is charged may have an effect on whether the enhancement applies but remember that this is a two level enhanced meant if the crime were charged in a different way a different crime would apply aggravated identity theft for instance in hall itself it was a conspiracy to commit bank fraud that was that was charged in addition to the wrongfully obtaining and transferring information crime so in the sense that in the sense that halls reasoning does does sort of rely it does rely on the purpose of the crime because hall the panel in hall needed to find a way to give use a meaning that distinguishes it from transfer now  concede that had the information just been transferred in this case had the facts of this case shown that all she did with the information was for instance put a u s b drive into the hospital's computer download everything and just transfer it to a coconspirator then hall would control but that's that's not the facts of this case in this case she did more than that she access the information she found with she compiled within that information that the individual's individual patients who were going to be more desirable to a potential third party who might be interested in buying the information she commodified it in a way that it would entire purpose of their conspiracy was to take that information which she did was transferred i mean she didn't use it as a means for ok well then you know it was so the so called again looking to the ordinary natural meaning of the word use and relying on the supreme court's definition in bailey hall said that use means to convert to one for an unlawful and unauthorized purpose you have to consider the word used in the context of the rest of the guideline its use for in unlawful or unauthorized purpose so in a given case whether the use is for an unauthorized or unlawful purpose will definitely or will necessarily be a fact dependent question in the hall itself the the current crime that was charged again was this the the purpose the illegal purpose was the was a scheme to obtain fraudulent credit cards there was an organizer of the scheme who direct who was also charged in that case who information to obtain fraudulent credit cards at that point those twelve individuals became victims right correct your honor you know why because then there are their means of a diversity of benefic asian were being used as me honor but transfer wasn't good enough but to view that statement in isolation from the context in the facts of the case would then mean that black was decided incorrectly because you know i'm sorry your honor maybe we need a published opinion declared perhaps your honor but at the very minimum the fact that black was decided after hall shows that there was sufficient ambiguity in a hall such that a clear error wasn't made here i mean there was room for  doubt given their reasoning and all that another panel of this court in black found that a person doesn't necessarily or a person becomes a victim at a different time depending on the factual circumstances of the particular oftens now and that makes sense that makes sense in the sense that a victim is defined in relation to a crime you're a victim of a health care fraud scheme another panel may  your hundred that i think at the very minimum to shows that there is some indignity in the decision and that's sort of the question whether there is room for doubt in errors plaintive controlling president are is is were able to discern there is as you mention there is confusing language in hall and perhaps it is important for this court to clarify it our point though is that a straightforward application of the halls reasoning which calls decision wouldn't be appropriate here in the sense that it would give the defendant a second bite at the apple i mean he didn't raise the objection before it is she didn't raise hall before she never argued that the people's information who was stolen certainly your honor and that's of course with the chords for her to do but you know again we there's the other argument which i'll briefly address which you know this court is very familiar with molina martinez and i think that are instances in which the record in a case which can include the district court statements would show that the court each of them is you know the district court here on the probation officers recommendation a variance sentence was important and that and the sentence that it ultimately imposed and i think that if you follow that logic and take away this and handsome and that it conceivably would have changed the probation officers recommendation and might then of the fact that the district court's decision to correct your honor it i take the point it's actually it's a very close call i think in this case but i think what's  dispositive or at least what's very persuasive is that the court what is clear from the records that the court made up its mind to issue a sentence of incarceration instead of a request for probation and then it issued a very specific sentence of one year and a day and the a sentence of a year in a day as this court is probably familiar those those issues come up in the context of eighteen u s c thirty six twenty four be prisoners who serve more than one year can receive credit for time served and so that's the main driver behind one year and a day sentences nothing you know nothing in the the probation offices recommendations or in corvet's request would have suggested a year in a day was was the appropriate sentence to give but the court decided that a year or a sentence of incarceration was the appropriate one over a term of probation given the seriousness of the offense and that a year and a day would  be the would be the appropriate one presumably to give her credit credit for good time served now just a couple of more minutes and it's court has no more questions than victims and hence will turn to the amount of loss  one point that i wanted to raise is that she herself corbett herself characterized all of her objections as legal as legal ones in multiple places in the record and one yes yes your honor so and the reason why that matters is that she didn't preserve any argument concerning the adequacy of the evidence which appears to be the only real argument she's making now on appeal so the court has no further questions i think the court for it's time thank you just fine five minutes can i ask you a quick question just as you get started you said earlier twice i think you said under hall got to be more than mere transfer it's got to be something else so i'm kind of curious about what the something else is because i take it that it's not your position that in order to be use the conspiracy let's say has to have reached its ultimate in there have to have been credit card stamped and tax returns filed so what's the something else between transfer and ultimate success or is there some way station in  there that's a question your honor and i i think what hall says it is and the way the courts answered the question and cases since then has been if it's just possession if it's just transfer that answers the question and so what is the line beyond that and black is the closest thing we get to the that gray area because what mr black did he possessed document making devices so that he could get this p i into his device and make a credit card with it is my understanding i think the court's use of bailey is instructive here because it's that act of employment or the conversion of the thing so i think that's where this court and hall if i may presume to it is that the the the way this court looked at dalian use those definitions is instructive because when the defendant actually takes that p i n employs it for some other purpose or takes that p i and converts it to the other use that's where the line is so it happened i mean if you're if you're looking at this from the victim's perspective it seems to me that the victim would think that their main said of a on this and that transferring something for a fraudulent purpose is not using something for a fraudulent purpose and this court has applied it in that way i would argue even in black again and again and the record here in our case i would argue is clear factually because we have the conspiracy charged as happening with and most importantly perhaps at the sentencing hearing from his corbett the district court actually asked the government do you have any information that any of the stolen identification has been used to defraud victims that direct question was was asked of the government the government responded in the negative and they said no and they specifically said we have no exacting evidence that a specific occurrence that there was a specific occurrence where a tax return was open or a credit card was opened based on the information here and it seemed to me the critical thing was that when the district court overruled the objection it said i think there are a lot more than ten victims i think anybody's information it was stolen is a victim yes your honor and as a matter of law that's an incorrect statement and we would ask this court and i know there's some discussion during the government's presentation here about what should happen to remain and and our position is that because because of that statement at the sentencing hearing for that we have no exacting evidence that any of this was used that they should not be able to go back on re man and now try to prove that when their own statement at the sentencing hearing in this case on the record before this court was that they have none that they have no hard evidence of that  so we would specifically ask if this court were to sue seems to be the problem is the objection that was made it was not an objection it was no argument made based on whole or on the meaning of the word if if we are if we were to find that the objection was not preserved and therefore our view was for plainer onder stand your argument with which i have sympathy that there was plain error here but that that would also mean witness at the district that the government would be given the opportunity to present that evidence and in this court may decide that it does what i'm asking this court to do is look at the record here and look at their own statements at that and hearing and find that they've already made that representation to the court that they have no evidence of that so that's what we're asking this court to take into account today just addressing a couple other points that came up during the government's presentation the  commission in two thousand and nine and we haven't talked about this yet but they were in two thousand and nine in their commentary it appears i think to the score in the hall decision and to me that they were adding this specifically to punish more harshly people who are actually using the p r i and i think that's an important consideration because miss corbett did not do that thank you mr divine and we have your case will move to the third one