briefly is the government the case raised in the government's twenty eight letter because i think the holding of that case is in apis it here but it's analysis is very helpful in that case the defendant actually used a name he wrote the name on the medicare claim for claim form during the health care flood place case and the court said that's not enough here our case our challenge the use element arises out of the fact that i sure didn't use the a t m card the customers kept their cards i shouldn't ever have them or know what was on them so we're claiming the holding is in opposite but if you look at the reasoning employed by the hong case along with the case that it's really the case that it relies on the brocades from the st circuit the meg law case from the th circuit they find the statute is ambiguous the court looks at the language and design of the statute as a whole the court looks at canons of statutory construction the meaning of an undefined term may be deduced from nearby words the court says when a plain reading leads to ambiguous or unreasonable results we may look to legislative history to interpret a statute the court refers to the limitless nature of the government's construction of the statute and the court applies the rule of lenity which requires ambiguous criminal laws to be interpreted in favor of the defendants so based upon the ambiguity that ambiguity  statute the rules of statutory construction the rule of lenity the legislative history the courts read into the statute a limited a limited construction that effectuate its legislative purpose in this case where i'm sorry  i want to turn we claim that the word use is ambiguous as applied to the element of the use of the a t m card but i also want to turn to another claim that we're raising and that is the consecutive sentences for aggravated identity theft in that context we're claiming that what is ambiguous is notwithstanding any other provision of law is that federal law or federal and state law and that's i want to turn to that because i think those rules of construction are helpful in analyzing that i mean it's similar statutes are talking about exactly the same kind of stuff and we're trying to determine what this all means that's what they're focusing on and they said it includes the state terms but there are other cases in which they construe that provision notwithstanding and here the provision of law not to be completely unlimited to be directed at what congress intended in the statute seems pretty tough with gonzales i mean they were right on that whole they were provision twice in this case and in their other cases can string that provision to say we look to what congress wanted to wanted to encompass and in this case we don't we know from the legislative history that congress did not want  encompass state laws the legislative history is discussed in our briefs and what congress was doing when it in acted this provision was talking about the federal sentencing guidelines they were concerned because in the sentencing guidelines it would group together the identity theft condition and conviction and the underlying conviction and so there would be no additional time for the identity theft conviction therefore there was no incentive to charge that conviction  term any and the absence of any restrictive language left no basis in the text for limiting the phrase to any other term of imprisonment to federal sentences that's what they well i think your honor there are other cases constrain that language and i think that they look at what congress intended so maybe you better go back here what about insufficiency of evidence ever going to get to that on the insufficiency of evidence yes your honor i understand you don't dispute on the aggravated it aggravated identity theft you don't dispute that the defendant knew that the means of the id belonged to a real person or that the defendant did so during in relation to the felony violation one of the offenses those of the three last two and three what you're disputing is whether he knowingly transfer possess or use without legal authority a means of id of another person correct that's correct so if that's the truth are we not looking at the district court's factual finding a on this issue exhibits supporting that the video shows the d was hovering over the victims and then conducted a nd transaction after the st and he pleads guilty admitting he immediately did withdraw money from the account which  construction argument which is a legal argument which are reviewed to know and essentially that's what it is where i doing that and a t m pin is not a means of identification and i know i've only got two more minutes of time so if you want me to go into that  good morning your honour's daniel in for the united states may please the court pick up right where your honour's left off and we welcome the din over review to the extent that that's a review for whether a pin is a means of identification a pin is a means of identification under three parts of the relevant statute one hundred and two thousand and eighty seven st under the broad introductory language with which states that means of identification is any name or number that may be used by itself or in conjunction with any other information to identify specific individual is a pain a number yes can it be used to identify a specific individual yes we know we heard testimony from bank employee witnesses who stated as such and we know that from our economy common experiences so meets the definition of a means of identification under the bride introductory statute which this court and looks at stated when congress used the word any it in it reflects their intention to  construct an expansive definition secondly it falls under one of the enumerated sections under one thousand and twenty seven and subsection c as a district court found below it is specifically a unique electronic identification number because as the court found a pin is used to execute electronic transactions it's exactly what the victims did hear and that's exactly what the defendant did here unlawfully when he impersonated then at the a t m after his victims left and stole money from their similarly defined broadly and access advice is among other things any code personal identification number or any other means of account access that can be used by itself or in conjunction with any other access device to essentially obtain money once again a pin is a code is a code that you need to obtain access into your a t m account it is by its very nature a personal the number can be used to identify a specific individual we are testimony again from the smoke in the bank of america employee we know that to the extent that there's a four to six digit permutation that any customer can set up depending on the complexity of that pin that can be used to identify an individual but not by itself we can take it can be used in conjunction with an a t m card to identify an individual but your i know very well could be one pin number could be used by itself to identify an individual depending on the paired with another piece of information those two pairing of those two if it identifies an individual it's a means of identification briefly discussing use not to belabor the point but your owners are correct  on point in this case looking to the same exact phrase just in a different statute the supreme court did find that any other term of imprisonment meant state and federal prison sentences also hopefully gonzales listed other statutes that contain similar phrases where they interpreted the interpretation which was very similar for example there was a statute that gonzales discusses involving any law enforcement officer and that was construed to mean any state or federal law enforcement officer they construed the phrase any courts and they thought that to mean any state and federal courts as well so that you know pursuant to hong and gonzales it's clear that the defendant here when he swooped into those a t m s after his victims left those a t m s reem put their pins after the a t m prompted him to re enter your pin number for your security and when you are referred not to him but  victims he impersonated them pass himself off as his victims and use their account information and the pins to access their accounts and steal money for those reasons unless any other questions we show the pin as a means of identification that a pin was used i think those are the essential issues raised on appeal here the government is firm and and we submit to play you really don't want everything thank you there's one method of distinction that i wanted to point to in the gonzales opinion is that the gonzales court found it significant that congress expressly limited the phrase any crime to federal crimes in one part of the statute and they found it significant that no similar restriction modified the phrase which appeared on least two sentences later i also want to turn to the issue of a pin being used the pen does not provide a means of identification the bank does not know what the pin is the bank cannot identify any e through the pin it doesn't keep any record of the pin and the statute requires that for it to be a means of identification and has to be used although it does say alone or in conjunction that's ok thank you i think it has to be used right and the pin cannot be  that i mean that's our yeah your argument might have worked until i think they recalled one of those bank employees to say that in each of these transactions the person actually did get the money out and walked away and that in that scenario the only way you could get more money out as your client did is to reenter the pain i understand that your honor i'm turning to the statutory construction issue of whether or not the pin constitutes a means of identification well it is in combination with the information that's stored on the magnetic coat of the a t m card so that just doesn't seem to get you anywhere i mean it seems you had an argument that maybe he didn't actually input the pin that maybe he ran up while they just left a wife session going and he never had to