applying a two level enhancement for traffic of unauthorized devices access to places in this case is the court of where he was convicted of five aggravated identity theft he was appropriately counting and if we have to look to the plain meaning of the note to know whether it is limited only to convictions of the aggravated identity theft or if it applies to other cases for which he was convicted on the same indictment or at the same sentence and it seems clear in looking at that the plain meaning of committee no two that it's not limited just just to the aggravated identity if the person line in the guideline is if a sentence in the guy is imposed in conjunction it's not limited to congress wanted to congress could have limited a specific way to aggravate identity theft they indicate if it's  and also it also indicates that the note indicates that if the other appliances applied to the transfer or possession or use of the means  counsel is not true i mean i understand that application up to are trying to stop double counting but why is it double counting if you can be convicted just upon the simple transfer but trafficking requires transfer plus something else right so trafficking is transfer plus exchange plus marketing something else so why is it double counting if the trafficking offense incorporates greater conduct or necessarily includes more that than just mere transfer i'd like to address in a couple ways one is the fact that it's vague and we're having this discussion of what it means in frankly this is a matter which the rule of lenity should apply because where there's it seems clear on you know there's wiggle room if you will in this i guess it's one of his wiggle room it should be interpreted in favor of the defendant and i don't think that's contrary to the supreme court's decision  but also your honor if we have a situation where you know what we predicate offenses obviously the aggravated identity theft in this case the defendants the purposes of the were obviously to finance the operation it's so that you can't it's like it couldn't have continued without having engaged in using be an operatic act access to bikes that's sentencing if you allow the courts to apply this wherever it's not on all fours because i would agree that trafficking does compas may and comp and something more than just  transfer that could apply to any underlying offense that would allow the sentencing court to find another element required other than just mere transfer and i asked why i think it's so important that when you look at the wording and it says in conjunction with the sense it when its meaning is i believe the true meaning of the fact that if you court indicated i could imagine in almost any case the prosecutor or the judge could come up with an element or aspect of the underlying offense would distinguish it from mere transfer and so that and that's the case in this case you know that you get the consecutive sentencing and that's why i think in support of the relevant conduct information but relevant conduct is not limited you know simply  person in the business of receiving installing solar property just before i get to that argument though i think it's really important to be clear about what the guideline range was used by the district poor and as i detail in my reply brief the government is incorrect on the total instead that they purchased them from somewhere else so you said there's no evidence of that but what about parlance testimony there's no evidence about mr mccluskey selling stolen credit cards the only evidence  cards this is consistent with the plain language of the guidelines and the weight of the case law under one b one point three a defendant may be subject to a guideline advancement based on his own conduct and unless otherwise specified he actually aided  those that were jointly undertaken in criminal activity by to be one point one before his reliance on the defendant's specific conduct this enhanced met falls into the otherwise specified exception the th circuit in the cite applied this limitation to another and he has been abuse a position of trust but for the same reason because it was enhanced meant that was focused on the defendant's conduct and it said because of the plain language of the enhancements focusing on the defendant's conduct it fell into this otherwise specified limitation it compares an obstruction i'm handsome and which includes a note in the commentary which expands the liability to the defendant's conduct in anything he aided and abetted but there's no such one property if the sentencing commission intend in this to apply broadly to jointly undertaken criminal activity it would have just said the afghans involved receiving and selling stolen property by the sentencing commission adding the words  defendant it must have meant something application no five is consistent with this understanding rated includes a non exhaustive list of factors of the court must be used to determine whether the defendant was the person in the business of receiving  which applied it because it was mr koehler with there was evidence that he both received and sold stolen property so i think while maybe this argument wasn't directly made it is consistent that is how this court has sort of understood it is that there needs to be  some connection to the defendant in making this the other thing is a little it is claimed they are not only because it's just inconsistent with the plain language of the guidelines they're why there's no case directly on point t you're saying that if i run a fencing business and i'm the person at the top and i have three people who work the counter and they're the ones that actually change the money i cannot get the enhancement because i didn't personally sell them the stolen goods right i think there is so there are other it handsome and that may apply but this one specifically would not to you it may apply to the the others that are involved in the receiving of the selling but this being a specific enhanced meant for the person who is responsible for the work it's again it's not just that the often is involved and everybody involved in this can go why is it that i'm not a person in that in my hypothetical where i run the operation but i actually don't get my hands from why am i not a person in the business of receiving and selling stolen property i mean i'm a person and that's my business isn't it but you're not the defendant he was the person who was in the business of receiving and selling well i'm a defendant i'm being charged with a car wreck and i just think we need to compare it to the other guy then he has meant that including a broader liability for everybody involved in that conspiracy right there that sends a commission was very aware that this one be one dollar limitation on the jointly undertaken criminal activity and they chose to include specific language narrowing it to the defendant and not to the  under the plane that was the something machine knows how that works and they chose to include that specific language if they wanted to make sure that in caught include abroad they would have just included the oftens involved and then it covers everybody in the conspiracy about selling credit cards all they knew was that they were there was a list of credit cards that were stolen and they would use those credit cards to brazil a tape of fraud the indictment is very lengthy and not once mentions the conspiracy just on credit cards this was a separate and parties originally had applied that it agreed that it did apply but ultimately agreed that it didn't at the sentencing hearing which did result in just an offense level of forty three dollars rather than forty five dollars for a difference of five levels rather than seven when that reduction for the total offense level was reduced to thirty eight dollars to encompass the statutory maximum for several the government does not believe that makes a difference in this case  to your honor yes can i see a question about because it didn't come up in the argument before but with regard to amount of loss if as you know that that credit card  note the five hundred dollars per is at issue in front of other panels if that note gets struck down do we have to remain on the amount of loss and no your honor because the primary loss was based on  assessment of the records that were taken from iraq commanding control center which supported a loss of three five i believe was four and a half one million dollars and that was cross reference with the i c three victim reports that also corroborated that last amount and there was an agent who also testified at trial that put the loss at about four million dollars so that's completely separate from the credit cards and that the loss amount from the was the primary basis the credit card was secondary and completely unnecessary for this court to have a loss finding ok and i'll address the issue about the  enhanced meant for trafficking access devices in conjunction with he had mandatory sentence for aggravated identity theft under to be one point six two level and he answered under two being one point one be weapon b was correct in this case because the aggravated identity theft sentence centered on the use of five victims means of identification which did not account for the bast bulk of harm certainly not identity theft under that guideline that you should not apply the chapter to it just meant for us specific characteristic for the transfer possession or use of a means of identification essentially  and twenty eight language but it's that next sentence in that applicant titian no that's key and that's what the opponents are ignoring in this case because it says that a sentence under this guideline accounts for this factor which is the transfer possession or use for the underlying offense so there it's saying that the commission is presuming that the aggravated identity theft d sentence accounts for those factors but that is not the case here and the goal of this application though is to avoid double counting but we don't have that here in that is because to be one dollar and for the aggravated identity theft only captured us conduct for which because of the specific conduct or do we still would we still have to to grapple with all that well i would say that they're not a placable because of how narrow this indictment was that only charged adjustment for wire fraud in conjunction with an aggravated identity theft sentence however to important to look at the indictment in that kids and it show that the defendant was charged with much broader conduct for knowingly transferring possessing charged uses of means of identification when there are thousands more and certainly there was not trafficking as to those five victims so i'm like that you know any case the aggravated identity theft sentence here could not have possibly considered the additional trafficking conduct which was only accounted for in the st instance under to be one point one below have been the which involved entirely different victims and different conduct in this the indictment and what else the sentencing for the p s r what where's the where's the device where's it made clear that there's a strong body wind between the five victims and the other trafficking web and for that reason your honor that the government believes that the enhancement was properly applied in this case because the trafficking vastly exceeded the church uses a means of identification  with respect to the enhancement for being in the business of receiving and selling stolen property the court properly applied that enhanced meant because the palance both received and were in the business of selling stolen property there are out of circuit decisions that upheld that the enhancement applies to someone who spends his property that someone else's stolen but none of them have addressed the unique situation here and i think it's important to keep in mind how that's that these credit cards occurred one method was this e bay fraud scheme the defendants in this case certainly were involved with that scheme but there were many others that were involved as well and they were not responsible for stealing themselves stealing all the credit cards and they haven't shown that they have that they were responsible for it there was that least two layers removing them from some of these that's not just my view and maybe and i'd like  they bought credit card numbers and they were obtaining credit card numbers to use them themselves to do so by web hosting services or whatever it was which would not make them offense it would just be a thief through or somebody who buys stolen property and just uses it for personal use again and then there was some evidence that they were stealing credit card numbers and then selling i think it's is there any evidence that they were obtaining the credit card numbers without stealing them and then sold which i think would be a classic benz when they were obtaining them without stealing hard numbers that they did not steal themselves and then sold i don't know that it was broken down to that level i know the agent said with respect it was unclear what the source was  these cards but they were definitely buying them originally because and eventually moved to the scheme where they were getting credit cards through virus so use your your argument depends on given him and he was present when johnson ploy who was selling stealing these trucks i'd say that you know the facts there are certainly less compelling in that there's at least two layers that were that removed would be the ones who implemented by or as they uploaded it into a link or picture that victims would click on and then at that point the virus was installed seven and the virus had the ability to determine whether it was going to steal the identity it would have if it decided that it was going to then it would post a page that would ask for instance to e bay user to verify their he ended one of those was to provide the credit card so if i have a multi way or organization that steals property and then sells it as long as it's multiway or that enhancement would apply that it's not the care it's not the character of how the property is obtained but it's just whether there's an organization or not if there is evidence to send himself did not commit and i think that's what you here because mick wells may or nicholas you may have been the person behind the virus but it is the virus that is implemented by another person that is actually committing the best in this case none of the definitely also part of their business they were the agent testified that you know they had sold one thousand five hundred to two thousand cards from what he could tell from their records and that's certainly not in consequential transactions unavailing because both the palace were involved and i think the front end or the back end of these transactions nickel s q gave valentin access to the need dark web store that was being used and provided the bitcoin receiving the spreadsheet from nicolaus q at least three times in two thousand and thirteen and there is an least another instance in two thousand and fourteen but there are instance after instance on a spreadsheet where you can see man i just i buy i'm in the business of buying stolen goods and then i turn around and so i'm not stealing the stuff myself i mean it maybe that's too simplistic a view of the world but i that what offense does and that's really not what these guys are doing there it's very sophisticated operation but at the end of the day they're just stealing stuff and selling stuff that they've stolen right they're stealing things that that they're coconspirators have stolen and i would say that there's two layers of removing them from the situation and it's not it's not a situation where they have directly set still you know this type of credit card but that i mean isn't that an audience of conspiracy i mean we tag defendants with conspiracy all the time we say you're you're responsible career what this person does and that person does and the you know probable foreseeable consequences of the conspiracy and all that but then we turn around and say oh but for purposes of this thing we're going to divide you guys up and the stealing operation is different than the selling operation so we can apply this in answer that doesn't that seem odd i don't think it's odd in this case based on the unique facts in this case your honor because the primary purpose in this case was to the fraud e bay customers seen stealing the credit cards it's really secondary and it was the virus was so sophisticated that there were a number of factors that w were met then it would then provide these fake cards to try to fake web pages that would try to solicit the user's credit card information so it was not nickel ask you or make laws who were directly stealing this information and i would say that all the cases that have been cited here none of them have addressed this situation that was open the question of who would be operated the operative actor is with the sophisticated virus that is initiating theft that are deployed by someone else and i think that's what's key is that somebody else was following this virus that ultimately was responsible for  aling the credit cards in this case and that's why they were in receipt within the definition of the guideline and that is why the guidelines correctly applied in this case honor in relation to the application and to if i understand the government's argument correctly if they're able to indict in home the indictment to leave out the part that they wouldn't apply and i don't think that that's what the guidelines require but what if they indicted two then your example and then the other one they indicted for trafficking or something else and probed it all and but they said they're separate the victim we've identified two victims here and one over here so that we can apply the enhancement because we can break it out that way i mean what what is wrong with that theory well i guess the question is is it part of a conspiracy or is it one second sitting together and that's where if it's in conjunction if it were a totally separate offense then it wouldn't be in conjunction with the other cases this court if i read correctly in lyons with was cited in the reply brief defined in talking about no two it wasn't it wasn't exactly to this particular application but they but this court indicated that it was  interpretation here if it's in relation to the overall scheme which in this case was the laundering or life money it doesn't apply for it's not in relation to an offense for instance or cases that independently somebody made a you know devise a mechanism and i know courts of indicated that's not in relation to the overall scheme so it would apply and and i think that would be the key so if if i read lines correctly i think that's what it goes to is it in relation to the overall scheme or is it not and that's that's obviously for the court  yes your honor i just have a couple breakpoints to make a rebuttal first i didn't address the the transfer of the trafficking but just to get back to judge larson's question earlier about whether trafficking is broader transferred so the courts that have addressed this have said they can be one in the same in the the sentencing commission needs to be more clear so i'll rest on my briefs on that the other thing i would say to you is that it's not overly clear and i think it was an error for the court to even say that the selling of the credit cards was part of this conspiracy although because the coconspirators that testified did not talk they talked about using the credit birds that were stolen but they didn't talk about selling only one of the coconspirators sold credit cards that the direct destruction of nicholas to the nd point is on the receiving stolen property the government mentions the saunders case in that case the court found that her husband had stolen the vehicles she received them from her husband and then she sold them so she was it she was a fence she she received stolen property she didn't steal it and she sold it so i think that's consistent and i would also point this court to while it's not that is the government points out it's not really they're not doing this online fraud they were doing something else but it's a conspiracy that is conducting this fraud and it's the conspiracy doesn't receive stolen property  and then i would just point this court to make men which is the st circuit which talks about the history of the guidelines and how this really and why this should apply only to fences because it was property for resale and we just asked the court