argument over perspective two different increases i'm going to first focus on what the pre sentence report said was the use of an authentication feature or identification document and i threw out the increase that applied there it's our position that  based on the president from several circuits including the seventh eighth and eleven circuits that that was impermissible double counting on or the plain language of the guidelines there is a little bit of a dispute about the standard of review here the government contends it should be plainer we've urged the court just to use the will review because the government will not suffer any prejudice and it's a purely legal issue but even if the court were to use plain or review we believe the error was plain and in fact the seven circuit case  das found plain error in a very similar circumstance so it's our position that with respect to that increase there was just plain obvious error and there should at least be a reversal in a remain and for that alone so mr coleman i was having difficulty understanding why exactly the district court applied the enhancement as i went through the record and through the p s r i have been trying to figure out ok i guess i get your double counting argument as a legal matter i'm trying to see as a factual matter did this to court actually double count or not can you walk us through in the record you know p s r transcript the sensing hearing so that we can actually see what portion of to be one point six and i guess back then it was eleven or whatever it was was actually applied and that would help me at least decide whether or not there was double counting ok well then i think i'll start with the pre sentence report ok and i really i think is the really pretty much the entire record with respect to it and the pre sentence report defendants used authentication features and identification documents that the that the quote unquote patients i'll just call them that they would present their health care identification cards and they would then use the name and number on those cards to order the prescription medication and that was the use of the authentication features or identification documents and that's essentially it that's that was what justified the two level and the double counting is on top of the twenty four months  see that and that is health care for one and looking at ten twenty eight i don't see how of care fraud listed as one of the ok crimes for which you can  impose twenty for an additional twenty four months it says any provision contained chapter three relating to mail bank and wire fraud and those in other words  section four says any provision in this chapter but count five doesn't allege any provision in this chapter and then it says any provision contained in chapter sixty three relating to male bank in a wire fraud and i don't see that it says health care for the well certainly that's not an issue the only reason i can see this supplemental briefing on that well but what i want to ask you is assuming i'm correct there is a i understand from reading your brief that double count is the pendant on the the first the first count there's a twenty four months and then you're saying the guideline and double counted well if i'm correct then there's no double counting well the defendant did receive the two year consecutive that not actually was i understand that but that's geared to count five which is the ten twenty eight a violation and the count five is get the health care f interpreted below was any provision in that chapter and that section thirteen i think it's forty nine which is the conspiracy provision is in that chapter but no but it's not you know i think this is confusing because in  fraud to which the twenty four months is pegged well if i'm honest and we've got there are two issues here the first would be but i just have one question i don't expect you i know i'm hitting you with the slate and if i hadn't come limb myself maybe we could have asked for additional briefing but suppose i'm right does that take care of you double counting on him and well i still think i would have to be a reversal there never know but there's a take care of your double counting argument the may have a reversal but i'm just asking you whether or not it takes care of your double counting argument i don't think so because the defendant was given a two year consecutive sentence but the two year consecutive sentence would go out the if the court were reversed for any reason and i have a little bit of time left i don't know so i think the court has to get to the other issues i think the proper procedure will be to reverse and remand for open sentencing and then the other take the opportunity at least submit some supplemental briefing or twenty j letter on this issue because obviously that would obviate the double counting issue and certainly you have obviously when our rules to do that you want to save the rest of your time that's please limiting legally speaking but again that's something that i think needs to be further brief because both parties didn't prepare to address it and i'm going on to the question that i was just curious about and wanted to get the twenty four month and on did you have to i want to answer joan's question as well the object of the conspiracy was submitting billings to medicare medicaid which is done electronically so the pharmacies would bill medicare medicare all through electronic submissions of the means of identification write  and the medicare medical number that would be used to bill the identification documents and authentication features came in a separate aspect of the scheme which was the concealment of the scheme and that's it x government six record  twenty nine for example one twenty eight so in order to the scheme would have failed if they didn't have creation files that had the identification documents and the medicare medical cards for these c not because that was necessary to project lee bill but because that was necessary so that when auditors came knocking on the pharmacies door and clinics door they had real patient files and they say look we actually have identification documents for these patients these people really fill these prescriptions and sure enough the auditor would look at these it and if occasion documents and see that not just the means of identification the name in the numbers but the symbol of the state of california or of the you know the various symbols  this is the language into the one point six no two was playing it says you can't oppose enhancement for the transfer of possession or use of a means of identification the district court did not do that it didn't oppose the enhancement for the submission of billings to medicare using the names and account numbers the identity theft victim unhandsome and goes to a separate consideration or the number of victims i should say enhanced it goes to a separate consideration of the magnitude of the harm it also says that's because a sentence under this guideline accounts for this factor why is that because ten twenty eight big ape punishes and this is a quote i hope for the unlawful use you can't get a ten twenty to get a conviction based on authentication features right if that was what it was charge would have been missed charge because an authentic asian feature is something different it's a symbol or a hologram or a watermark right so what the ten twenty eight or what to be one point six no two was getting at is pretty it's common sense principle precluding one to one double counts and that's not what occurred here i can i appreciate your argument now on this i have to say reading through the p s r in the sentencing transcript and understand the double counting wasn't raised at sentencing so i appreciate this is kind of after the fact and while we may have to apply a player but i'm not seeing that explanation anywhere i didn't need to provide the explanation because there was no dispute that that applies here if the defendant raised this dispute i could have provided that explanation right but but it was never raised to play in here doesn't apply because the type of item at issue here authentication feature or the number of victims that consideration is explicitly separate from the mere transfer use or possession of a means of identification and look at the result that the defendant is asking for to drive home that point the defendant is asking for a four level reduction in the guidelines range right meaning going from a total offense of a thirty five to thirty one which results in a five to six year reduction low to high end in the guidelines range all to apply a two year consecutive sentence when you look at the plain text again of the statute ten twenty eight b a b three congress explicitly stated a court shall not in any way reduce the term to be opposed for such crime so as to compensate for otherwise take into account the separate imprisonment under ten twenty eight big a what the defendant is arguing is that the overall sentencing exposure has to be reduced by a total of three years right which makes no sense when you look at what the congressional schemas year they're trying to punish an additional  object of the offense in this case was not the identification documents it was transmitting billings to medicare medical using the names and the identification numbers right the means of identification  into play in a separate layer of the scheme which is concealment right enabling them to continue to perpetrate it despite auditor's coming to live investigate the clinic what the various guidelines enhanced mints are driving at are considerations that make the offense worse identity theft the number of victims drives at the scope of the fence right the amount loss amount drives that the amount of dollars lost right the defendants argument really applies to loss amount as well right  only reason the loss amounts occurred is because the means of identification were used to defraud medicare medicare all right so why don't we throw loss amounts out the door what's clear is that with this guideline range is getting at is not you throw out anything that in any way  use means of identification it's just that common sense point of the one to one double counting you can't enhance for the use of a means of identification because that's a ten twenty eight big punishes and i want to address the cases cited by the defendant because they're not on point three of those cases involve access devices credit card numbers credit cards well the definition of means of identification the statutory definition explicitly includes access to vices that's ten twenty eight held that identification document is a type of means of identification that case contradicts this court's decision in the haney therefore no plane air flurry of two courts that disagree there cannot be plane error but in any event what that court health is that an identification document necessarily contains a means of identification so it wouldn't draw distinction between them but an access device is an entirely different thing it's a hologram or a symbol right or a water mark and it actually doesn't even have to be contained on a means of identification the statute includes possessing like rubber stamps right or machines that imprint access devices as a way that the enhancement applies and i  really have to disagree with the defendant's argument about the standard of review and after the party submitted the briefing this court reached a decision in jus eight three one zero zero seven that's the  applying the law to the facts and that is a by definition a mixed question but but many of that would that court held is that it would not apply that discretionary exception for pure questions of law because this court had traditionally limited that exception is right again it's not to a mandatory to no votes discretionary but even then she said that it really should only apply in civil cases not a criminal but that's sort of the that's besides the counsel before we run out of time i just want to make sure i understand your argument you basic here arguing that the purpose is underlined to be one point six and to be one point one be eleven who are different that one to be one point six ever applied it in this context and even in the context of identification documents the president is next therefore no plane air but there's also no to novo air on the ground that your honor cited occurrence q i'm from just curious honest this is a criminal case not a civil case that's right i'm sorry how does that intersect with the tenants let's put it this way an argument that if it's clearer than the defendant's counsel was plain error i know it's a multi faceted test which i hate but how could how if it seems clear that he shouldn't have gotten the two points and as a result of the failure of counsel to raise the issue  he's going to do what how many months more could i think my own rough calculations each point of the guidelines and time percent of the sentence i theoretically he could be doing an extra two three years in jail because is it because his lawyer didn't raise the issue and it isn't isn't it a jump to take the pla which derives from civil cases and places in a criminal case where you have a situation where the failure of counsel to raise arguably let's say a plane e strategic decision making was but when you have and given that there is no precedent on point on this issue and that these terms are separately defined in the statute if a defendant could reasonably have concluded that the hanson applies on that consideration reason is that he concluded that it would not have been a successful argument and but you want to you want to prevent him from arguing here that it would have been successful i'm not preventing anyone from arguing the thing the standard of review is plain air this court's case last clear that weather is no controlling authority on point there is no plane air particularly where the closest most closely analogous authority is mixed as it is here at minimum so the standard review exist for the reef for a very good reason which is counsel has to raise arguments before the district court and if they don't the reversal only if there's plain error we don't want an inefficient system where we just keep sending it back whenever a defense counsel comes up with novel claims on appeal but in any event twenty two fifty five is not an appropriate vehicle in this  fifty five but if there is no issue as to its applicability look if the defense counsel raised this argument below right i would have had an opportunity to respond right and how would i have responded right not only by pointing out the statements where they forge this name and signature of the victim they were not just possessing identification documents they were creating them by scanning them and put in the files right so they're really doing more than even just possessing or using authentication features identification documents they were producing them as well so there are multiple different respects in which this enhanced min applies the defendant not only didn't object he conceded that it applies and there was good reason for him to do  so he was reasonable to do so that's not even the issue before the court in this juncture of director view but that's just the way it is based on the precedent on this issue the lack of press and authentication features and the han explicitly holding that she'd be one point six doesn't apply to identification documents i mean that's that really decides the issue of course that was numb from bush decision there doesn't have to be published decision for him to send out i'm just asking you a question as you know that the benefit cation document doesn't trigger double counting under to be one point six and i ask you were more interesting informational question yes your honor how did the judge get through this one through the actually applying i know the gotten the pre sentence report that's two points and then it reaches a level thirty five and it seemed to me that for a level thirty five the sentence that the judge gave actually was below you know that look the district court recognized but he give the guidelines so he gave a low guideline sentence that's correct and by how much if i may i'd like range was one sixty eight to ten so that's a fourteen year low and in the judge departed alibi one year to thirteen years and then imposed a two year consecutive under mandated by law to fifteen years hit a few things on the standard of review the plan or standard as your honor indicated originated in civil cases and really when the supreme court converted over to criminal cases it was in the context of a conviction in a trial error and this court with respect to sentencing errors has had a much more relaxed standard in the context of sentencing because as your honor indicates well number one would probably just be back on the twenty to fifty five year or two from now and number two there is that you're not on wind in an entire conviction entire trial it doesn't really take a lot to go back for resentencing hearing if it looks like the defendant got too many points out of the guidelines or that he might get a lower sentence and have to serve one to three years less than what he did so there is sort of a relaxed standard in the sentencing context different from if you're just raising an issue that happened at trial for the first time and you'd have to have an entire new trial on the merits of the issue the government is essentially a judge nelson answer your question they're making the same argument that was rejected by the seventh the eighth and the eleventh circuit's they're trying to say that an authentication feature is different from a means of identification and therefore there is no double counting but what those circuits of all held and this is posting hany an specifically rejected dany and said it was an unpublished opinion with a grand total of one paragraph of analysis which actually has been rejected by this court also subsequence of dany is that the what actually occurred here are they being punished for the same conduct an authentication feature and an identity can be a means of identification and usually is a means of identification so we're not going to double punish the exact same conduct over again and the argument that they're making has already been rejected by those three circuits in published opinions and even on planar review by the seventh circuit they rejected the same argument under planar review so even if the court were to apply plain or review we think reversal should be required this matter submitted will move on to the next