the morning your honor katherine young friends are public defenders office for the appellant brant to i'd like to reserve a few minutes of my time for a puddle if possible mr chew is here appealing a sense for possession of an authorized access devices and aggravated identity theft the st question i'd like to address today is whether the district court erred in calculating the sentencing guideline range by imposing it hansen's from on the last number of victims that resulted in the seventy five month sentence for an offen lasted a few weeks and caused nine dollars in loss the st thing i want to turn to is the burden of proof that the district court should have applied in my twenty eight jail that i mentioned a case of this court as recently decided the value a decision where the court said that the clear and convincing evidence dander to be applied where only the final two jordan factors favor the defense in other words whether where the increase left the offense level is raised by more than four and the sentencing guideline range is more than doubled that happened in this case the actual loss generated an offense level of four and a sense in guideline range of six to twelve months with the spreadsheet information added the offense level increased to seventeen and the sentencing guideline range to fifty one to sixty three months but i know the th circuit has been a bit you know hasn't been clear on this but there's also a lot of cases that say that if it relates to a charge conduct as opposed to an uncharged conduct didn't you don't use a clear and convincing evidence so what do you make of you know a long line of cases th circuit that makes that distinction between charged conduct versus one charge conduct i think that's part of the jordan analysis there are six jordan factors and that's one of the jordan factors but the last two jordan factors have consistently been used to say to say that even if you just meet these two we will apply the clear and convincing evidence standard and i think that's the impact of the decision and by that we're going to go with these this long line of authorities even though there are six jordan factors we're going to say if you meet the left last two we will apply the clear and convincing evidence standard and jordan also says it's playing error the application of an incorrect standard proved to enhance with this report disproportionate an impact was error that is plain so it's plain error in this case but work also contending that under any standard the the use of the spreadsheet information in this case was erroneous and we're going primarily on the on you s decision where the court held that on authorized access devices must be usable for and i'm not what i would do you make of the statement and you know i knew so or however it's pronounced that the usability quote unquote may be self evident for certain types of things like credit card numbers no you're right your honor that's but the ana so case does apply to an expired credit card numbers so even though they make that statement the whole case is about i'm sorry expired reading over whether any of the credit card numbers in this case were expired we don't know but we do know the difference from when you sort of run it is but the problem is that in this case the government had the spreadsheet for years and did nothing to verify any of the numbers we know from some of the evidence that's presented some of the victims were contacted that their identities have been stolen in some cases fifteen years ago and some he says ten years ago in some cases five years ago i'll be in for from that some of the credit card numbers were yes i mean i think that this is a spreadsheet that have been circulating for years if not decades canceled due to fraud i'm sorry are canceled due to i mean yes exactly so in some of these cases there have been reports of the police so obviously these credit cards have been cancelled and there was expired i mean most credit card terms like twenty years i mean you don't have any burden to come forward with that to find out that the problem with some of these well i think it's their burden to prove it if they if they met some portion of their burden then we might have the burden to respond but our argument is they didn't even read that through any burden to prove that these were usable they think the question is whether you have to do something to kind of trigger their duty to prove it i think all we have to do is object which clearly the defense didn't is this and once there's objection then they have to come forward with their burden is the analysis different for bank accounts as opposed to credit cards i don't think so i don't think that any of the cases say it is different because you don't you know credit cards they expire bank accounts typically don't no but in this case i accounts or credit card numbers with the government then have to for each single one figure out which credit card company or bank and verify each one in some cases i think there's been a random sampling and the  multiplier based upon a random sample i mean there you could is that this record can do whatever thinks is reasonable i assume to try to find out when you got three thousand how you allocate usability to them in this case nothing was done to prove that any of them were usable but also i'm sorry but your client admitted that he had the spreadsheet with identifying viable information with personal information then one of the agents also check social security numbers with respect to these court did not include there were there were three categories of information in the spreadsheet social security that the government argued should be counted the social security numbers the bank accounts in the credit card numbers the court did not count social security numbers those the government did verify but those the court declined to add to the intended loss and with respect to what my client said he said that he had the spreadsheet he didn't say that he bit he made a purchase for us from the spreadsheet he said that he had been giving it but given the spreadsheet with the intent that he was to it he was to use it and sometimes his words were taken out of context originally he said it was given to me with the intent that i was use it that became somewhat morphed into something more of an admission but what he said there's no evidence that he actually used it and in my brief i went through the government said well he used all these other pieces of information and i went through and looked at the source of all the information to use it and it was not some spreadsheet it was from handwritten numbers that were separate that he had or from other people that had given him a card that had been reincarnated or something so i looked through in detail in my brief showing that all the information he used was not from the spreadsheet the victim impact statements tell us that the spreadsheet information was probably stale because it came from decades ago and what about the stolen ma handsome for the stolen mail that went to the number of victims we argue that there are a lot of moving pieces on the stolen male enhancement our st argument is there's eight stolen male victims we argue that they shouldn't been included because this was an identity theft case then if you include them you've got eight victims and you still have to get to ten to justify the enhancement and the only way you you that is by adding two sets of victims that the gender that the sentencing guidelines tells us have to be applied in the alternative or morning your honor may please the court my name is katherine and i represent the united states i'd like to begin by focusing on the st argument raised by defense counsel which is the guidelines calculation this court question earlier w sentencing which the scope of that conduct which as discussed in riley falls within the preponderance of the evidence standard this is made clear when you look at the facts of the case which are essentially quite simple and have been admitted to by defendant either in the factual basis of his plea or the mirandized recorded interview and were crop rated by text messages found on and data from determine its digital devices but simply definit used personal identifying information o attained two profiles store mail and stolen checks to open new or access existing account he didn't use any of the accounts or any of the information on the spreadsheet to do so th or vices raising the government's argument and raising the p s r the axis of itis from the spreadsheet or actually bank accounts there are seven or twenty seven bank accounts found from the press the spreadsheet and defense counsel himself actually urged the court to consider just those bank accounts during the senate hearing i think it kind of taken out a little bit out of context so what he says is that if if the court isn't inclined to use the actual loss figure and if the court's going to use a number that's greater  than had then it would make sense that they use the seven hundred and twenty seven bank account numbers because that can be tied to a bank account again making a huge leap assuming those bank account numbers were valid i mean not that as that's not an admission that those things are ok he's making an argument any alternative understood to the point they're raised by defense counsel is the account numbers in the spreadsheet were bank accounts the credit card numbers used in the p s ours were actually from is not correct actually he excluded any facially invalid bank account numbers from this profile and then talking about the credit card numbers the agent did not say that he did nothing know somebody has got my expired credit card number and they also have my name and my social security number and my address and my phone number that expired credit card numbers are good because it's possessed along with my other personal identifying information that is potentially possible so  can't even meet the preponderance standard there's some things potentially possible that even meet the lower standard i i was drawing my potentially possible i would say that it is actually possible and in this case we know that one thousand six hundred and sixty six of those social security numbers matched the names in the dates of birth of individuals they were associated with we know that he was in the u k but he wasn't sentenced on the basis of the says security numbers he was sentenced on the basis of that bank account numbers and credit card numbers and to debit card numbers yes your honor but the definition of access device is a number that can be used alone or in can junction recently with every time i go to an airport my of my cards and being stolen and i cancelling them and getting calls immediately so we know that happens very quickly and these are very old all data  it can't be used if it's expired or cancelled there is no evidence actually that the data was all we do know that victims who have been victimized once can be victimized again and that's indicated in the victim's statements are so right but you seem to be saying that the fact that the credit card number which we don't know whether it's expired or unexpired is combined with other identifying information like name social security number address phone number whatever that's enough to say that usable that makes no sense i have a credit card that got canceled by chase you know let's say three years ago because somebody used it that's a credit card number if somebody had a spreadsheet that had my name right name right social security number it hasn't changed my right address which hasn't changed right from the word hasn't change an expired social security number it sounds like you're saying that still usable number for purposes of the sentencing guideline if that's what you're saying it doesn't make any sense to me well there's an assumption in your honour's question that is simply not in the record which is that these credit cards were actually so we're talking about assumptions on something where the government has the burden of proof so you're assuming that it isn't expired well they're keys asian stated in the record that they were officially valid what does it have many i mean they had the well the spreadsheets  numbers to see at the time of the sentencing or the time of the offense that they were still though well then he were not told look so clearly work so they had written notes with the credit card numbers had expiration dates with them and that was submitted to the court that was also i mean i know there's a lot of credit card numbers in here and i don't know that anybody would suggest that the government has to verify every one of them but i mean i've had it happen in front of me where they say ok we took a sample took twenty of these things we ran him there oh that would be that hard to do i mean that the think might be valid or not valid i'm sorry your honor could you want us to come to this record and go through these things and make a determination about what might be valid what might be usable and what might not be civil no your honor the record five hundred dollars floor as the last to develop the last number however even if this court were for example to think that the bank out the numbers alone would not be sufficient that is not actually required under the definition of access device it's the number alone or in conjunction with another and on you also there was no evidence that the defendant used those account numbers which were expired with other their personal identifying information thank you i just want to briefly respond to a few points that the prosecutor made one of the things he referred to is the two hundred and seventy three cell phone images of credit card numbers though he transferred information apparently or the same information was on the laptop and the cell phone it was from the same source so if it had the same defects as the information on the laptop in other words that it was not used there was no evidence of validity and she also referred to the fact that the agent checked to make sure the numbers were facially valid i think all he did was check to make sure they had sixteen digits as critic hard numbers do and then she also referred to the handwritten notes that when question she said he also looked to see the expiration dates was that dated in there that's what i'm just getting to she referred to the handwritten notes having expiration dates the handwritten notes is another subset of information that he had there only thirty four numbers and they handwritten notes and that's a separate thing in fact some of the information that he used was from the handwritten notes those are from another source than the spread sheets and the thirty four numbers you could use those before numbers because he did use some of those so they're from a different story is proper to use a thirty four number and multiply that by five hundred to get to the last increase it's more valid to use that number because he did use some of those numbers in the handwritten notes and they're from a different source but thirty four times five hundred doesn't get you to a fourteen level increase i think it's only a four level increase and so the fact that they handwritten no expiration dates or were usable or something does not say anything about the spreadsheets because they were from an entirely different source and i only have eight seconds left on this or any questions thank you all right thank you very much coun