the second example the care of either here the cap individual is this is a victim of a robbery again that implies there's an implication of the harm that they have had in their property taken from them and they may or may not have been hurt in the commentary it refers back to one of the one point three writing relevant conduct and the definition of relevant conduct does talk about harm it talks about harm caused by acts or omission so while the provision of three one for one doesn't specifically talk about harm the actual harm was not established the harm that's the scope that was discussed at sentencing was really purely speculative it was it was potential harm that the children the numbers that were used the children that are though those individuals the support i think if the government established that the parents had to go out and purchase insurance because of this and it was moving potentially that might mean qualify as actual harm but that's not this case  approach that we look at the guidelines as a whole why doesn't that language alone allow us here to support yes i think there's a couple of cases including the kennedy case which says to me one point one does not dictate how three a one point one is crime an action of another person in this case i yes i respectfully submit that the children wide rather me fall under a conventional definition of vulnerable are not victims because they did not suffer or at least the government did not establish that they suffered in actual establish that harm is required but they define victim with someone who hurt by conduct or someone injured by relevant context so kennedy does refer back to that opinion and that opinion is in defining the score in the final victim does in other in other issues i'd like to bring up regarding the issue of harm is i think if you don't have a home requirement in this type of enhanced which is a pretty broad enhancement right now it becomes a very slippery involved in an offense this could theoretically apply and that becomes very dangerous a very dangerous slippery slope type of thing hansard because it becomes a catch all any time you and it can be very arbitrarily applied for example in this case there was the talent and there was also a cooperating codefendant they conducted similar conduct they were accused of similar conduct and in the sentencing process the cooperated was not hit with this and handsome and they decided not to apply t and i think he didn't suppose suppose it was hard that well not apparent and immediate was something that would come in the future like you know something that that was somehow tied bound and would come to fruition work a six month period of time but it would come to fruition i think if it's established that it would come to fruition then there's a stronger argument there that there is a harm that is going to occur i mean i submit that's not this case it's not it was not established that any of the individuals who sources you numbers were misused were absolutely going to occur any specific type of harm that just w case when you can see that if the things that is original grind testified to occurred that would constitute harm that is that they would not be able to file the returns electronically  additional paperwork to say that that's an actual harm but i think again more importantly we don't know that these individuals are going to be going to have to go through these extra steps of filing extra paperwork because we don't newborns was able to follow them so that she could get so security numbers i know that's a little attenuated but just for the moment so they're you know one year olds who so security numbers are now  the possession of someone in your clients and the government made if we move as a government is suggesting presumably in that case the government could make the same argument that in sixteen or seventeen or eighteen years this person has file will be there's an added burden the i presume your argument would be even though the time is much different it would be obviously similarly speculative so if we did apply it in their paper would just be ridiculous well you would say ridiculous again i think it's a stretch i think it's for the most part the guidelines are designed to punish conduct that occurred you know  future activities that may or may never happen if we can and you know looking specifically at the facts in this case the consequences rather in this case this year look we say it was just a deal sentence was essentially increased by one year or two levels doesn't sound like a lot when you actually look at the guidelines and it could be more if you go down the guidelines so in addition here is added to this person sentence based on possible future harms but it takes time your position that there has to be harm correct and that's why i'm saying that harm should be required because it's not  actually happened is that their social security numbers were stolen they lost the security that they were entitled to have of their social security number there is your harm in if you look at the webster case which is a case out of the sixth circuit the wester case clearly said that the fact that you had your identity stolen you have suffered a harm in an overt self direct your on it to the webster case which i believe answers your honour's question it in that particular case the webster court was very strong in its language in saying that once you had your identity identity stolen you have suffered to harm the you know that's what i asked you whether that he's or any other case that that if you're so security number was whatever confiscated misused whatever that constitutes identity i have not found any specific case saying that specific language that the court has just mentioned but the facts and webster's involves sort of scary numbers from children in preparation point is is this is that's the tendulkar and that the proposition that your adversary is putting forward is really inaccurate that it's not that there might i know you argue that there will be other filing and that's part of this potential harm but your real point if i'm understanding you is the fact that it was stolen is children's social security number was proprietary and the security of that number was the nine today because it was stolen from them and the court did find that that is in fact tangible harm and then went on to mention some of is we want to punish defendants who select the victims because of their vulnerability which is exactly what happened in this case and we want to do the ministry dosage of punishment and deterrence by working smith to deter others from selecting victims because of their particular susceptibility now that language appears in their reasoning appears in other cases in the kimber case out of the second taken advantage of it doesn't mean you will take it and correct it end that's the reason why this crime was actually very successful and if you read paragraph forty three of the presents report that the defendant was successful to the tune of almost a million dollars  hospital where the defendant brought in an amount of mercury that he wanted to put in the hospital to sicken employees and patients in the hospital now ultimately was not successful actually no one was poisoned by the mercury but the second circuit just last year was not troubled by that and agreed that the vulnerable victim in hanson it applied in that particular case even though there was no poisoning from the mercury and in the cris it isn't as a matter of public policy it is important enough to give an added measure of protection to vulnerable victims precisely because are vulnerable and if you look at the sad states they actually went ahead after using the hurt they did not hold and did not say that you had to prove actual harm before the vulnerable victim enhancement could be applied your adversary brought at this your sentencing in the black  kennedy case but it is also the case where for example if you if you had a sniper who took a shot at someone and missed and that person didn't even know they were shot at no one would say that you could charge the concern itself whether or not the defendant is ultimately successful in his criminal activities the purpose of being in he's from is to give an extra dose of punishment to those who would target well vulnerable victims as happened in this case in fact the very reason this case turned out to be quite profitable for the defendant is because he knew that the children would be less likely to detect the use of their the fraudulent use of their social security numbers as a matter of fact i was a trial attorney and in this particular case we introduced videotaped evidence which is part of the record where you can actually see the defendant preparing a fraudulent tax return from an undercover agent who had fisher who testified that part of the operation of this particular tax office is they kept that i ate a leisure ledger was actually he had written ledger which we introducing neven said trial and in this particular ledger legitimate tax returns but they also engaged in preparing for it and tax returns as well theft which again that's not what this case is these numbers were misuse for purposes of falling filing project tax returns but again there is no showing that that been a misuse of those numbers created any harm and an again i would just advocate on behalf of following the circuits that do require a actual harm to be found prior to application of the enhanced and respectfully argue again that harm with