gets she worked to get the sentence that that she agreed to didn't object to which would be a thirty three month low and i think that forty six high end sentance she has now done thirty two months  originally and the parties were recommending to the court a low end sentence thirty seven months is allowed and so obviously the parties were agreeing to a low she admitted to very little actually at her guilty plea and even in her statement to the agents if the court were to say that a statement to the agents counts as an admission for  who were in capsulated in the twenty three institutions sure but but they're there lost their personal privacy interest lost and having their identity stolen would be different time so they have they were the ones who made up that nine hundred thirty five thousand dollars lost that the bank actually covered and i think the that they they must it i mean just obviously don't hassle isn't that hassle whatever it was and we don't know what it was because it wasn't laid out in that house well something that can be used as an upward departure at the bases for an upward departure is application no fifteen i believe to guidelines to be one point one talks about what are encouraged up for departure considerations and one of them is substantial harm to the victim agents were involved in the investigation here that they could probably produce some of the individuals with a hearing or possibly i would assume they probably could and that would be something that is evidence that the district where i am now didn't want to take  arrested or denied a job because of an erroneous rest record and the defendant totally it's assumed the victim's identity those are the four areas now granted the application is the basis for the fraud and miss benson got that and that when they win the identity theft to ask guidelines were molded into the to be the fraud guidelines the overall goal was to use peculiarity law as the measure of someone's punishments verity of someone's punishment but to take care of the problems in coate problems that come with identity theft the hassle invasion of privacy whatever they added this to level of court adjustment which missed them some got for the fact that she was involved in identity theft so for the district court now to come back and that is fully supported by the defendants factual basis after her guilty plea and i believe the defense noted this itself in no footnote four of the the supplemental blakeley brief and that's the breeding enhancement the enhanced meant for the unauthorized use or transfer you subtract two for acceptance then you are at offense level apart from the departure now you're an offense bubble ten in with her criminal history category one if the court does conclude that the departure is unsupported by the facts  think that's that's the analysis of it is it is worth noting though as your honor pointed out that there were large portions p s y that were not objected to including the number of identities that were stolen by the defendant and that number was seven to ten thousand it's really important to distinguish between two categories of individual victims in this case first so the individual product is the eighty nine people that you want to refer to those are the people whose identities were stolen by the defendant and who subsequently suffered actual fraud they had fraudulent credit cards open in their names they had bank accounts that were filed and also created in their names but in addition to that there were between seven and ten thousand people who had their personal information stolen but for whom the government didn't have evidence of actual fraud and i think that's what the court was focusing on i mean even included both categories of really nice the personal information  social security numbers driver's licenses dates of birth that sort of thing the defendant got that information from choice point which is a large database of personal information and from the record i gather that what she would do is take that information and then in a lot of instances pull up credit reports which would contain yet more information about the victim's credit histories i believe the p s r said that she pulled down about a thousand such report the non monetary harms associated with these types of offenses inconvenience dislocation that sort of thing but then he hasn't doesn't address the identity theft victims that is the people who had their personal information t suffer that invasion of privacy but he didn't actually suffer fraud that factor is addressed in no fifteen so category two which states that an awkward departure may be appropriate if  appropriate if the offense risked substantial non monetary harm and again when you have this many identity theft victims seven to ten thousand each of whom is put at risk of having fraudulent accounts open in their it's the second fact that the court referred to the other group of victims the people who called the and reported that they had fraud that was the group of victims that the government used to calculate the loss in this case but it's the identity theft victims that really drove the departure and their harms and the risk that they were telling many of these victims weren't aware that their personal information i think that's right wired by her i think that's right they would have only been made aware probably if they suffered fought as a result i mean it's worth noting that the government was unable to to investigate all of the queries that the defendant made in cross reference them to see if there were corresponding fraudulent accounts experian database that li it was important to address the identity theft victims and that's why the court departed upward just to return quickly to vacate the castro question the as far as the facts that would support the oper begin the defendant didn't object to the p s r and for that reason the government didn't end up submitting that was the reason the government didn't end up submitting detailed evidence before the court on the number of identity theft everybody sort of took it as a given that the government initially asked her to for departure it didn't the government took the position actually because no three day which defines victims in terms of actual lost that the a proper whether the enhanced meant for number of victims under b to whether that could be construed to embrace these other individual victims and when it became clear because i think the notes make it clear that it didn't embrace those victims that's when the court expressed concern victims could be counted in the upward adjustment for number of victims or be too but you know i was right i mean the government wasn't speaking up for departure at first you don't really gratitude it was the district court use these ten thousand queries where there was no evidence that separate the eighty nine that there was any there was no evidence that these people even knew their information in a different way well i think it makes a difference when you're talking about harm because the broad guidelines very clearly the touchstone for deciding the severity of the punishment and when it comes to identity theft because of all the problems that a court will have been drawing these types of bright lines about what is a nothing on peculiar ery harm what even constitutes non pecuniary harm they have set out a separate upward adjustment when it's when identity theft is involved what we're talking about here is we all have information out there in cyberspace whether we have put it out there all in terribly or whether it has been put out for us in voluntarily by credit unions or credit agencies or whatever for want to say well just because you have tends to commission has decided to measure law and so i would suggest to the court that if the court the court not go down that road and tell the district court yes it's ok to use stand alone queries without take the high end ten thousand queries to choice point and what we have are eighty nine people that are to me that can be pretty pathetic as well you know as we use the example are we going to punish him because he he chased fifty and he ended up dropping one now generally you punish him for what he did which is he chose that one bank to rob she queries ten thousand out that particular date database has happened to gather on the individuals so it could be addressed information employment information pending on what kind of subscription you have  d employment information current employment information home information social security numbers date of birth sometimes credit history really depends on how much information floating out there about a particular person which may explain why ten thousand inquiries were done because you have to type in one hand qualification to subscribe to that information i don't know that your honor and it's not in the record