i puzzling because that the general legal terms were used without much concreteness by the probation officer the prosecutor and the defense and i am still not clear on exactly what it was that these people had seven hundred seventy eight of there were so many different ones of them your are there broken down they were credit card statements but see credit card statement you mean the bill you get from mastercard and the credit actually split your number is and it shows what your charges have been and they stole those from the mail correct your and then there are credit card numbers and the credit card statement steal money with that except that you know the number well that's how they break it down pretense reporting and that's how they dealt with it the district ok but that's one of the devices is a credit card statement which are under the statute in access to buy any records they refer to seven hundred seventy checks and when we go to the pre sentence reports it's just completed check it wait a minute we did all that and i'm left as much in the dark as i was before surely the prosecutor and defense counsel actually looked at the things well and what i was wondering is is this like when i get my checks from de luxe checks the box of three hundred checks and somebody steals a box out of the mail of three hundred blank checks is this the or six checks that fisa sends me every month along with my statement that i can use to write checks against my credit card is this some other kind of checks i can't pick figured out but you must select out i'm your honor the record is unclear and no no the records are clear i have not looked at the check here are not part of the record and i can only argue as to what's in the record and what's in the record is what's in the pre sentence report and in a denim to a precinct there's not a further record in district court that not in the excerpts here no you're on the checks were never made a part of the record and when we go back to the pre sentence report the probation officer says i was just given eleven this is something where there's no contest you in the prosecutor both stood at his desk or your desk and looked at the things and i doubt if you will object to your telling us what they are well i'm at a disadvantage because i wasn't a trial lawyer so i've never seen those checks your honor but i have seen the record and i've gone to the record very carefully and that's what i base my argument on which is all i can base it on but i have the same question that your honor had there were seven hundred seventy checks they know that eleven checks were completed now the work completed appears in the pre sentence report and then in the third a dent them to the pr estimate what the intended loss was by applying in an average on that basis if that's the circumstance with would that be a logical thing for the judge to do i would disagree with that for two reasons your honor i realize the prosecution cites two very good intended loss and if the judge says you had seventy seven hundred seventy blank checks if your disposal you got around to writing eleven of them the average of those eleven was one hundred ninety eight we can assume that you would write one hundred nine on the average of one hundred ninety eight dollars on each of the other blank checks i mean that seems to me to be pretty pretty pretty logical if on the other hand they actually wrote seven hundred seventy checks i take your point i think you've got a valid argument that we don't have to do an estimate they could total up one hundred ninety nine dollars figure because it is an estimate and we're going to give the defendant a break in light of three f i in which normally would be five hundred dollars per check which comes to our issue is that five hundred dollars per check that used or possessed let me ask you this if you're confused about the record we're confused about the record what do you suggest we do about it then it has to be remanded i think or what for exactly what findings once i see what would we order the district court to do with  record have to make a more precise finally with regard to the seven hundred seventy checks which not at a loss of one hundred fifty five thousand dollars but more importantly the district court needs directions from this court with regard to how you apply three f i is it five hundred  that's an error and that has to be corrected and inclined not to correct errors until i know what the facts are i mean i hate making legal judgments in the air because they're still likely to be wrong irrelevant you're right if i could submit that if this court makes the ruling on the five hundred dollar loss rule i think that will resolve this case with regard to the application because not only was my we might say we don't care what the seven hundred seventy eight checks are multiplied by five hundred dollars and that's your amount of loss well but why would we do that if we don't have to not knowing what the seven hundred seventy eight checks are well that was only with regard to the second argument you're on with regard to the hundred fifty five thousand dollars based on the seven hundred seventy checks that's only one component with regard to last year we have another component over here  which were the credit card numbers the account numbers the other convenience checks and so forth where the court just took five hundred dollars times that amount and came out with one hundred one hundred thousand dollars so there's really two components here to the loss where the court is not with its about a thousand if it turns out that there are seven hundred seventy eight checks all but a few of which are blank and that these checks are various things some are before six checks that you get when you reach a statement every month in case you want to write a check against your research account and some are like the boxes of blank checks that you get when you run out of checks and so on the form to your bank and they send you another box of white checks why under yellow wouldn't we just say multiply seven hundred seventy eight by five hundred dollars that's the right answer these fellas got less time than that would give it give them at so it's a firm where with method the end of it because when we followed the yellow case your honor that decision was predicated on actually using seven thousand instruments that they had there that the seven thousand numbers if we go back and carefully look at the opinion because really they had eight thousand four hundred fifty but they found out about i guess one thousand two hundred fifty didn't work and this was a case in which they were actually in process of endeavoring to use those numbers and the only reason that they didn't was because the secret service was there and they set up bogus terminals so he was actually in process in fact when he was arrested he just given another list of six thousand six hundred sixty one numbers to the secret service and that case was predicated on the case agent determining that of all these numbers they were giving us eight thousand four hundred fifty nine percent of them are good and they were in process there of actually using those numbers or at least the defendant thought he was using them let me ask you question suppose we were to rule that the judge can use the five hundred dollar flat rate figure to determine intent of loss ok but we also rule in your favor that we just can't figure out what's what's going on with these checks so we take out of this one hundred fifty five thousand dollars that the judge attributed to this average business what would that do to the sentence if we took out from the last figure one hundred fifty five thousand dollars would that make any difference in the in the sentence well what is the difference that would make would be in the calculation of the sensing guideline writing understand that my question is would it change the instead of twelve your honor it would reduce by two points and then consequently then with the accept responsibility and so forth we could then get down to a base level of seventeen as opposed to what he was predicate descen appellate lawyers i was thinking when i was a criminal defense lawyer i'd go over the d a s office and show me the stuff and we wouldn't have any disagreement as a practical matter about what we looked at but that's not the situation here well that's  since i'm confused i'm confused as well i don't know if there's more i have seen other things checks and whatnot but i have no idea what they are because they weren't referencing the record the record does not describe anything to help us here point in time going outside the record i think has i am the only one i have seen the checks and i know what they state but i think the public record your honor as it now stands is certainly suggests strongly that the seven hundred  case decided because the checks not the number of the checks and the amounts of the checks were never in dispute at the sentencing the defendants never asked well let me say i think they were actually given all of the checks the seventy seven seven hundred seventy eight checks but they never said well this is the average amount we want you to do this calculation rather what the probation office did your honor is to take eleven checks that were given can you give us any good reason why we shouldn't just rem case tell the district court tell us what it is that we're talking about here give us your ox is off it i can your honor bars in the record so we can actually see what we're talking about and if the checks are filled out and i'm up and then come back i can certainly take a shot at giving you a good reason not to do that you are having with you that the reason you shouldn't do that is because that issue is not raised on appeal the issue on appeal is whether assuming as everyone did in the district court and i thought dollar rule to the checks we have to figure out what the attended loss with the checks were if us o p m your honor that that these are not accessed devices then then the issue i suppose is was the quiet judge cracked or what did he until recently most banks would send you your checks that you had written and they've been careless in the money's been taken out of your account and sent to the draw you're in dorsey and then they send you back to your original check and for all i know that's what the seven hundred seventy eight checks are i just don't know what they are with back kind of check you can steal any money you have the account number but it's the identical number on all seven hundred seventy eight of them assuming that these are checks that are being returned from the bank as opposed to the checks that an individual might write to pay his utility bills and i think it's the latter but again i don't believe that the record before this court is clear on that but assuming that these are some of the former kind of checks that are being returned from the think i would submit that these checks do contain numbers bank account numbers on the bottom that number not numbers one number your count zero two three eighteen twenty three thirty on every one of the checks or whatever your number of the seven hundred seventy checks are individual checks that are filled out the thirty convenience checks are checks that are not  out and that's why there was a dispute in the district court and that's raised on this appeal this is an issue that is raised as to whether there should all be counted as one access device number or a multiple access device numbers in this district judge in this case a whole bunch of stolen credit cards then you can steal from a whole bunch of different people if you have fifty checks all with the same account number then maybe if you have a pretty face you can go into a bank and wri either five hundred dollars do you want to it's important to keep in mind that even had the district court in this case i signed those thirty convenience checks but counted those as just one single access device to which only five hundred dollars would be a with i didn't follow that yes your honor even if the district court erred and assigning the five hundred dollars minimum loss with each of these blank thirty convenience checks and it isn't clear from the record whether these were just a packet of checks or whether these were individual blank convenience checks or whether they were packets of four seven or whatever convenience checks usually come in even assuming that the district court erred my point is simply that it would have made no difference to the sentencing guideline level putting aside of course the seven hundred seventy eight checks that we've been discussing and again those were written checks implication is actually that the probation office wasn't given by the case agent in this case all of the voters to let you believe even if that's true why shouldn't they require the the turnover of all the about complicated losses where it's really hard to say and those are the cases where we say go ahead and estimate it's fine as long as that's reasonable they must have any machines in riverside i realize it's not a los angeles but even have them in fairbanks alaska they even have tapes we have to bridge sheets it's not that hard i don't understand why everybody's dancing around it's not like some snitch in a big international narcotics case we have no idea what we're talking about we haven't seen the things nobody gives us pictures i look at what the probation officer says and it's also a summary that i really can't penetrate it to know exactly what we're talking about i see no excuse for not adding up the checks if they're filled out it's a cinch all the sewage every april fifteenth adding up our charitable contributions adding up our business related expenses  these things it's routine like i say answering around on what the facts are and why should we allow the district court to dance around on what the facts are and estimate when the facts are readily ascertainable your own i don't know if this is a satisfactory answer provided to the i thought i said that may be the case agent didn't even give it to the pre sentence report writer that's that i think is correct so the pre sentence reporter report writer is left making things up because the case agent didn't want to walk across the street with the box i think there are multiple boxes and i did a deal i did your point is well taken your honor i just want to explain a little bit about the history so that your honor can at least try to understand  this issue might have come up to this court in the posture it is and in that history is simply that in the nischelle pre sentence report your honor the probation officer assigned five hundred dollars to each of the seven hundred seventy eight checks that made a material difference it kicked out the defendant to the next last amount level and it led to an increase of fourteen as opposed to plus the right thing to do if they're independent access devices but we don't know if they are because we don't know exactly what hundred dollars loss amount applies we're going to in order to avoid any kind of disproportionate effect on the defendant sentences basically give the defendants a break and what they then did was they assigned they took th this giving the defendants a break and having us to expand the degree of estimating a while by the district court and being very vague about access devices it's also that some cases agent don't have to walk down the hall or take the elevator or maybe even cross the street with a couple of bankers boxes here i don't know if i have a good response to that except to say that again in the district court the defense had all of the documents that they would have needed in order to conduct their own accounting of the checks and this issue i'm all i'm trying to say your honor is that i don't think that this issue was was presented directly to the district court because i think the perception was that the probation office had already given the defendants a break by not assigning the five hundred dollars and that's that's that's another fallacy in your argument seems to be an access to a check is not an access device the check is not an access device by definition under to eighteen ten twenty nine one it's pacifically excludes you know something that  an access device i understand that there are all i'm trying to get to is just the number on the bottom that count number the bank account number that in conjunction with a pin number you're saying a check is not a vacuum you would be a check is not an access device but the writing on the check is an access device well if there's an account number on the bottom of the check i believe those placed in offices positioned that it could really care what their position as i mean if the statute says an access device includes a card plate i don't i don't ever seen one i haven't i haven't i have not your honor in i understand your criticism your honor and i think that in retrospect the this does all of those materials that were given to the defense council prior to the sentencing should also future one of his less serious crimes it could be your honor that if the case that goes back down and there is an evidentiary hearing and these these checks are are examined by the court and it's determined that it's could very easily be the case that the checks will result in a much higher loss amount that's that's correct reiner and this goes to the five hundred dollar minimum wash rule that we've asked the court decide that even if the court decides three man has so that the district court will be able to properly apply that because this is what the district judge said with regard to the five hundred dollars minimum washable and this is that excerpt of record one hundred two where an objection was being made to applying the five hundred dollar minimum wash rule to these so called access devices when there was no evidence they've been used in this is what the court  lines twelve to eighteen well i'll say this just for the record i understand what you're saying but i've used the five hundred dollar per account number or bank statement as a reasonable estimate of the intended los i'm using that application note as guidance to the court arriving at recognizing that in many of these unauthorized devices in this case there is no evidence that they were used to make unauthorized charges which brings to the to the issue of the hundred one thousand dollars that the courts acknowledge that in many and as does the probation report many of these things were not used so if we're correct on the five hundred dollars minimal loss rule that it contemplate in going back to the are sealed excerpt of record at page twelve we go through the different paragraphs that the probation officer was referring to in paragraph fifty five fifty six fifty seven they refer to the credit card statements additional credit card account numbers thanks statements convenience checks and they apply five hundred dollars to each one of these notwithstanding the fact that none of them there were there was actually a charge m