misrepresentation and hans meant was plain error because mr webster didn't act to obtain a benefit as the guidelines binding commentry demands and as even the court below found and second sorry or do you even get plainer review didn't you it misrepresents a story misinterprets the sensing guidelines or miscalculates the guideline range but that's a preservation clause that basically it's seeing even though i am entering the  am preserving the right that i would otherwise have to appeal approve an unreasonable sentence any other defendant in the same position would be waiving that right by agreeing to the application of the particular enhanced them and now other enhanced summons that he didn't agree to he certainly preserve the right to appeal those but the preservation cause you're arguing that that pairs of asian claws granted him extra appeal rights that it meant that he was incapable of waiving a right so that he could have stood  before the court in agreed to everything that the prosecutor argued and still because of that he would have these springing appeal rights that no one else would ever have knew you are not it's not that it would be extra all the preservation of the right for it to to be peel airs a procedural reason on this would be related to things that are not conceded which is what i take judge away to be saying but he specifically says i agree as to this and perhaps your own as a right that of course that has it's not going to grant him extra rights but as part of the bargain he struck he had a crew was put in that plea agreement that says that if the sentence was procedurally unreasonable and there's nothing in there about whether it was whether it was brought up at the time that it was procedural one reason it's just any procedure on reason witness could be grounds for an appeal but what's the worth of this provision and page six of the plea agreement that he agrees that certain sentencing guidelines will apply what's the government getting for that agreement nothing in challenges being wrong later on they getting their fact that the sentence was accepted at the district court and then right at sentencing and allow the judge to impose the sentence that was recommended but then preserving that right for appeal let's put it this way in terms of your view of ambiguity let's say there was not this preservation of the right to review procedure on reasonable a knowing and and intentional waiver as the supreme court in on it put it and so i don't think that that is a settled matter but certainly when you have a clause such as this which distinguishes this case from from thompson which is a case that the government sites in its brief where you have an explicit appellate preservation clause that should be enough to get as over the hill here how does the government do this in given your reading of this footnote juan and you know smith whatever the about the fact the scientists and the same thing at the hearing i don't think that changes that your honor the fact is that as part of that agreement he had presented that right now he was accepting that the shoe into the agreement in the agreement and then this particular enhancement and counsel saying that this this was the correct and this is something that was within the with was within the plea agreement but wasn't urged by counsel at any point it really wasn't up to dispute and that's why we're here on play now so you said at one point that the if it were specifically related to that in hansen and he said that he agreed then that might be a different case but that's not what we have here we that what we have here because this defendant agrees and recommends to the court the court says ok what should we do here and the defendant trying to curry favor for whatever reason says i recommend you provide this to have on the answer that's all he says period but then a defendant could never have the sort of a for here because he would have to accept the terms that were within the p agreement which he was ready to do as part of the plea agreement but then he also wants to make sure that he would preserve his procedural rights repeal was because unlike so many of the appeals that we patients most of those they the only thing they preserve is a sentence that beyond the maximum that there is an agreement to accept this court's scoring this one doesn't have that and that's the reason why you can challenge these other scoring matters that you didn't wave that's why you can challenge the number of people and i think there are a few others that you didn't  vulnerable victim but i guess i have a problem with the merits of your charitable organization it's your issue so the to be one point one nine if the offense involved a misrepresentation that the defendant was acting on behalf of a charitable organization increased by two levels and why isn't this exactly within and i know your answer is well don't forget about the application note a b but i can struggle and say it's within a b subsection b nine a applies in any case in which the defendant represented the defendant was acting to obtain a benefit on behalf of a charitable organization and here this is the defendant creates a fake charity and tells people in these ads he's going to help them through this fake charity and why isn't this within arguably within the as well as because the benefit was actually being offered to others mr webster was an action to obtain the benefit and if we allow it to just simply obtain a benefit and b half of a charitable organization so he was saying he was going to get these poor people funs the charity that he was going to get the benefit for then that they were going to be the ones getting the benefit he wasn't the scheme that he had in place wasn't the sort of scheme that this guideline was meant to cover previously it might have been before the change but the change in the language added there is important benefit and it couldn't because if if we were to read benefit that broadly that it would read out the amendment that the commission sorts that pos because previously it was the case that the guideline would apply if you simply denies ation but when the commission made that change it did so very explicitly to add the terms to obtain a benefit so benefit must mean something and if it were to mean identification information then you would have needed that change you could have as the guideline required is now going back to this court's decision in dickson we can see that harm here is a high bar it's not a an abstract point that you can make and looking beyond a circuit to jong's i think john's saying it has to be financial or what are you saying that financial would be one way or on a physical harm the only way that sufficient but not necessary physical harm could also be but it but the abstract tom of having one's  used by someone else even if you don't even know that it's being used for bad purposes that wouldn't be sufficient and if those like a logical harm perhaps if you were if you were aware of the psychological harm and it was something rising to you know  emotional distress that we might recognise in top and perhaps but that's not we have here we have somebody who is being put forward as a victim or people who have been put forward as victims based purely on the fact that they were made targets of criminal activity that  they've got to go change their accounts and all that other stuff we have absolutely no reason to think that that actually happened in this case or i mean because there's no evidence that was introduced that there's no evidence on that point that they need it when your client said i've ruined some people's lives that seem like pretty good evidence well the fact that mr webster expressed remorse at a sentencing hearing i don't think that should be used against him as as as evidence of the fact that there was h may he may have been feeling very bad about the fact of what he did and and i believe that he did mean it but that's not the sort of harm that we're talking about here if we look to a case such as john's it's actually very similar to this case in that there was a mortgage fraud scheme and that that case is out of the seventh circuit that it was a mortgage fraud scheme where people were allegedly made victims as part of it but they actually suffered no financial harm as a result of it they were just instrumentalities as part of the fraud and that again is is is what we have here there's no denying the fact that he did use their identification information but they were just part of the fraudulent scheme and that is insufficient under  under this guideline thank you very much morning in may it please the court my name is justin i am half of the united states of america we are here today because the defendant is challenging the imposition of two sentencing guidelines the first section to be one point one b nine involves misrepresentations that the defend was acting on behalf of a charitable organization the defendant in this case did agree with and recommend in his plea agreement that the district court should apply this enhanced meant in his case he maintained that position throughout the course proceedings  consistent with that position he did not object to the p s r and when he did object to other enhancements he acknowledged that his activities here involving the misrepresentations on the charity did result in a two point hansen and then when it came time for sentencing and the court made clear with defense counsel other than the objections that you have made which did not include this enhanced meant are you in agreement with the way i've calculated these guidelines and the defense counsel indicated ye normally we allow plane air room of new discovered arguments that a defendant might have that might have real merit and if they satisfy the requirements of the plane or a darkened so why shouldn't we do that here then i believe this case is a classic example of of the invited to air doctrine purpose that the defendant has on numerous occasions urged the court recommended that the court invited the court to apply the same hansen to his does not apply to waiver if there is a waiver there's no plane or there's no review at all you do not reach plane air that is correct and you're arguing that there's a waiver that is correct your honor and the court and arguably a waiver is an intentional relinquishment of a known right so there is nothing to show that this defendant knew about the argument that his new counsel is raising here i think there is sufficient finding that the defendant knew that he was preserving some rights to challenge the procedure on reasonless but at the same time acknowledging and putting forth and waiving the fact that he is in agreement with the and hansen's that he had set forth in the other paragraph  six statement that i read the defendant agree and recommend to the court the following in hands and essentially in your view is an explicit waiver and is correction and to satisfy your opponent i suppose we could say well really this agreement should have said the defendant agrees and recommends and waives any future challenge to these enhancements that would have been another way to accomplish what we are here and so your argument is nothing more is really accomplished by adding the language that i'm making up here and waves any right to challenge that it's correct it's sort of restates what the law already allows in the fact that he has made this sort of recommendation and tensional declaration to the district court that the the enhancement actually apply in his case suppose he had totally ineffective assistance of counsel at this plea stage and he signs an explicit waiver of a particular and says  government can apply the court should apply a particular sentencing and he has been suppose it is blatantly obvious that this is wrong but the council is just not savvy on federal sentencing issues are you saying there would be no fact exist i see opportunities and i think this court has held in times that the deviation which is largely left to the discretion of the court for manifest injustice is appropriate in particular if everyone is in agreement that this was a little bit about the government's position in these cases i can understand enforcing these plea agreements and waivers when it applies to all arguments but here we have a case where the second argument you're agreeing to waiver doesn't apply to so we have a review of or something the reality of a potential twenty to fifty five makes it a little puzzling to me why it's not you're not now incentivized to have a suggest the merits of the charity enhancement because all you're doing by enforcing the waiver is creating this debate at the twenty to fifty five stage as to whether the counsel's advice was good or not on this and that is going to take you back to the merits because it's just going to be a question of whether you're right or not and if you're wrong how wrong you are so almost always i've always wondered why i can understand forcing a plea agreements when it means no appeal but once there's something in front of us i don't really see the benefit to the government your honor i think there's a benefit in in sort of continuing to make consistent case law with respect to revert sort of doctrine and with the invited error and such that this type of scenario does not get passed anyone believe that one should automatically proceed to the merits i do think that even if the court decided to proceed to the merits here and found that the defendant had only forfeited his right to this claim the court could still found find that it does apply to get to the merits and the your opponent argues that this application note a b is clearly not satisfied here and i was making an effort to force a b to apply but it does seem like it's a difficult argument how would you respond i mean why is this defense how did this defendant represent that the defendant was acting to obtain a benefit on behalf of a charitable organization your honor i think the the answer is in with what he was acting to obtain and that frankly was the names date of birth social security numbers the personal information of these individuals under the guise that he would be using that information as a charity to make a decision as to whether they qualify for financial assistance which was what was being reported in the opportunity that they could take advantage of how is that a benefit for the charity in you honor and in sort of a nonpartisan circumstance one i think could certainly see that a charity who needs to make a decision i have so many funds and i have so many applications coming in who is sort of most deserving they're going to need personal information about these individuals and so in asking for that and on fraudulent circumstances it would be used i would argue by a charity to make those determinations the fact that the defendant didn't use it for that but instead diverted it for his own u is also consistent with the commentary personal information is just as valuable these days and in many ways may may have a monetary value to many defendants who are using it to commit fraud as has other types of solicitations and the guidelines certainly does not limit the to obtain a benefit or benefit language to to just monetary and the of the benefit in this you know in this case is the information the individual information like social security numbers are being purported victims of the crime yes it is the personal information that they were being asked to submit to the charity for consideration and the charity then it's a benefit it's not bad for them because they'd like to have lots of names and addresses because they're telemarketing from it's a benefit to them because you're saying that's how they decide to whom to dole out the benefits the in the the charities yes your honor the advertisements were and certainly it would be personal information as a whole but one could could not give out a grant of assistance without knowing who and where to contact them and  perhaps validate or verify some of the information that they submitted in their application so i do think that no not not for telemarketing purposes but for to accomplish the goal of which the defendant put forth was here to provide us financial assistance to two individuals it would be of benefit but you know they've got to strip do you think that's what they had in mind when they said i don't know and i think it's a stretch in part because of the  sort of valuable nature of personal information these days and the i think the purpose here was to penalize those who are making misrepresentations in connection with the charity such that people are perhaps more willing to provide that benefit for whatever reason and it is the fact that they're using sort of this guys as a charity that perhaps puts people at ease the benefit itself i don't know  is as important as the fact that it's connected to this misrepresentation of what i mean like what i agree with you that the the wording it comes under the wording of the guidelines but i mean the commentary is there and it kind of the it it focuses you on what they had in mind what the commission had in mind and apparently it wasn't just anybody acting like they're representing a charity  somebody getting something that people think they're giving it to the this benefit to the charity but they're not so it sort of appealing to people to give you something and i agree with your honor and i think this it's this fits squarely the individuals who gave their personal information thought that they would be giving something of benefit to the charities such that they could take advantage of what the charity has to offer them in its mission to provide or another way to put it is charities do two things they raise money and they spend money and the focus of money in these cases is on the fraud at the raising the money that's where you see it most often but you you're not a charity if you don't spend money and you can't spend money that's the benefit of them you can't spend money without addresses or folks that you're going to give it to the scripture and i believe that the guideline makes clear that the examples that are listed there which may be something that we think of more traditionally are just that examples and they are not an exhaustive list of possible circumstances in which this would apply  the victims not whether or not these individuals were in fact victims and so we would ask the court to review it in that light the district court however the government's made did not air in applying  defendant who has created a false hope in individuals that they would receive financial insistence and instead taken their identities and used them to commit crimes we submit that there is harm in and of itself of the use b the government has encouraged the court to consider in section two b one point one where there is an enhancement for the number of victims that addresses victims in particular in the definition in terms of means of identity cases which is something that we have here in there a victim qualifies simply by the use unlawfully or without authority by the defendant of their identification and we have that here there is no doubt too that you know this issue not being before the court there is less of a record having been developed and which is not surprising it was not something that the court was asked to find the court had no trouble finding that this enhanced meant was a pleasurable and i think even in some of the that the government made with respect to individuals who had to be interviewed by the i r s to confirm whether or not these tax returns are are true or false how did that impact  r sort of tax account with the i r s the district court could reasonably infer that there was harm as a result of this conduct was a person have to know that he or she is a victim or is affected in order to be a victim compromised or you know that they now have extra things on their credit report still it still is a very real harm that exists in that instance in this case to you know the vulnerable victim and has been does only require the finding of one why isn't that the really simple answer since strawman requires one victim the in terms of financially the because the returns were wholly false there is and the other individuals were  not the only lost money is that the point no one lost money but i got one point five million but it would never leave the government only the government lost money but its tax refund it was supposed to go to them or if it was were there we go yes may or may not have been what the only thing correct about that question was how it started it was clueless but these people weren't filing their own  own tax returns some were and some were not certainly there were some in in that we had identified in and that we highlighted to the court because we also felt that the that attributed to their vulnerable pnas because perhaps they were at an income level that didn't require that particular year and therefore may not have would which made them a very susceptible victim because they may not have checked to see if anyone else filed it for them or realized that they weren't getting there with the i r s getting to tax returns from the same person start writing that is also how we get our cases your honor yes and your rebuttal and somehow everybody is provided today so we will say thank you very much thank you very much we you know we have you know the rest of the debate we have specific sections that define victim in terms of financial harm this one doesn't that's makes it pretty clear that's not the only way to achieve victim status that particular  specifically says that it only applies to that section and so the government's attempt to sort of glue that on to this section i think is misplaced what we have here is a situation where it is this sort of abstract  that other cases have found to be insufficient and the government even concedes that it's what is arguing for is the sort of idea of a per se harm in every case where somebody identification information is used that is a per se harm that is sufficient vulnerable victim in huntsman but we're not saying that you can ever have a situation seems strange to say in the abstract in the identity of identity theft statute setting that identity theft creates a harm that's the judgment of congress and here you don't say everyone with identity theft is necessary a victim because you have to have vulnerable because the keyword is vulnerable there that's the point of it but i don't think it's unusual to say if a state or the federal government decides we think it down that's bad that the people that are the objects of that crime are harmed that's that's the that's the underlying point of the judgement so let me on and that's why the government is is that the victim status that initial determination is also a play and so when you have a point when you have a situation where people are used as instrumentalities over fraud something more is needed just an assumption that they are always going to qualify metaphysical you know all you have to do is listen to the committee meeting in congress where they decide why this is a problem why identity theft by itself without regard to what it does to people is worth punishing that's what's worth punishing your honor but that's not why we have clinic at the university of michigan as i recall and we thank you very much for your representation and as always the students from michigan do an excellent job as do the students from other schools that we have as well but they keep very much