please the court james five a federal defender is appearing for the appellant which is not oh try to reserve for the district court made multiple errors at sentencing in this alien smuggling case but i'd like to focus on just two of them the substantial risk enhanced meant and the supervisor at least there was no clear and convincing evidence as defined in rodriguez and adri get screwed for recklessness as to the substantial risk rodriguez which is a case which i learned if a court in a supplemental citation says that recklessness is something more than just knowledge of the facts from which one can infer the requires proof of actual and subjective awareness right correct don't we have no you don't have the proof you son successful smuggling experiences doesn't that reflect that he was subjectively aware of the risk presented by smuggling aliens through the mountains during the summer well more would you require to show subjective awareness here are the only facts that we have we i would point out there were four incidents that were considered by the court in fact the court aggregated all of them for an advancement that was proper that was not properly honored but i won't i will get into that one the less we have plenty of more time but all the facts a specific facts that are known about any of those incidents all come from the last crossing things like location the type of train the weather those are all things that we only know details about from the last crossing there are no details about any of those regarding any of the previous three crossings there's no information whatsoever touring similar area it's not as if they were coming at different points along the southern border well we don't know your honor because all we know if fact it's not even clear objected to the facts and that p s r you're right there's nothing wrong with the facts that are in the p s r the question is the legal conclusion whether they amount to sufficient clear and convincing evidence  i noted in your sensing memorandum you encouraged or asked the court to decline not to consider doing an adjustment for four people are i the eleven people and then also i thought you did the same thing for the substantial risk that's correct and so do you think that's sufficient for an objection and for us to apply abuse of discretion or is that plain error i'm just trying to figure out why you are absolutely under federal criminal the rules are federal crime a procedure rule fifty one b the general rule is if you make a motion for a particular type of relief in this case for a particular sentence the court denies it you've preserved for planar a review i think you answered my question because you say you don't object to the facts and objecting to the law that district court used in making those adjustments that's correct the objection to the claim on appeal is that those did not constitute clear and convincing evidence which is necessary to support the substantial risk unhandsome and in this case how many levels up wasn't it was it resulted in six level increase and a doubling over doubling of the low end of the guideline range that would result so under the jordan factors that would suggest that this would be clear and convincing in fact most of the cases that i've pointed to rodriguez another one which i didn't cite which i would like to mention the court gardenhire a twelve twenty fifteen case that dealt with recklessness in regards to pointing a laser pointer at an aircraft this very  interesting discussion there about what's required to show recklessness and very much in the same vein as rodriguez that there just wasn't evidence here to show that there was a prior awareness the only details we have is this is simply a sufficiency argument there simply wasn't anything about the details about where the crossing was the previous crossings occur we don't even know for sure based on what's in the p s r that they were even in the southern district of california we just simply know that these crossings were reported we don't know whether they were in the desert where they were they were walking up a highway we don't know where the crossings occurred what we do know is that this defendant had prior experiences prior experiences that included people who may have died because there was an adequate supplies and that it happened on more than one occasion that's incorrect and i disagree with that because he didn't even know about the death of mr palacios until after his arrest in the final crossing he didn't know about the death so he had no way of knowing about the deadliness of this type of crossing moreover there was nothing to show that that he was involved in the provisioning of this and that he knew that what was needed for cross when he was a neophyte he'd been doing this for one month one of the four trips that he made was a training trip where he was just tagging along and shadowing the others so he's not someone who has a lot of responsibility in fact there's no information about who did have the responsibilities risk because as you point out why would he put himself in danger right exactly your honor and what we know if one is different situation then those folks are not really i was in a better position to take precautions and make sure that there is enough for them to safely make the trip we don't know that your honor because we don't know he was working for somebody else he was working for el pato he was not the person i was necessarily in control of that was really these folks he was being paid you're on a good that he had the responsibility for providing the supplies for them in fact i would point to the incident of that particular crossing with mr pos yes that's really significant because what happened is that the the right in the brother in law reported is that each person in the party had control over their supplies the guys the foot guys had no control over they gave it up second that means that that wouldn't clue anybody into that you didn't have enough supplies to cross with because two thirds of your party gave them up and left them behind the important thing is there no other conclusion would you draw the problem is you know there's not enough clear and convincing evidence to draw any reasonable conclusion because for one main reason we just don't know how much water and food they took with them when they started out we don't know what they could have had ten gallons of water each we just don't know so how can the court say that you didn't take reasonable precautions you didn't show reasonable care and remember under rodriguez you have to show a gross deviation from the standard of care that we have no idea whether or not they could have they had the proper amount of water but then the only followed the court giving any high end range of a sentence with statements that would support a three year term of supervised release your honor i would say that this situation here is completely different from for instance the closest case we can look at is one that you and i are very familiar with but i do know stories where of course the court found because the court had made explicit reference to the need for deterrence that the the policy statement the guidelines  apply here here the judge said absolutely nothing and when we look at the facts of the case this was a defendant who had a reduced a much lower risk of recidivism of the need to deter then many people and please the court daniels ip on behalf of united states your honor the district court was within its discretion in applying a substantial risk enhanced meant in this case the undisputed facts in the p s r showed that on the date that the defendant was arrested he had taken a group of aliens on a three day hike through the extreme heat of the mountains without sufficient water i've got those and if you don't mind you've just heard your opponents say that wasn't enough that there needed to be more facts that not enough was known about the other trips how do you respond there was enough known about the other trips and it's listed in the p s r most critically there was the previous trip where one of the aliens died as outlined in the p s r in that case this defendant led a group they ran out of food and water left one of the aliens behind and when did the defendant learn of that in relation to the church in this case well there's two separate sections in the p s are the discuss that one of them immediately after he was arrested he told the agents that he knew that mr polanski has had died on the the intervening alien smuggling event in other words the one before the subject of  this sentencing and then later when he had an interview with the p s r what the probation officer he sort of backtracked and said he didn't know that he had died but he sort of had a strong suspicion that he had died i mean either way this was someone  he knew what condition mr placerville was in when he left him in the mountains at the three weeks or four weeks and passed and he was reported as a missing person he knew that mr klaas you had died and that's what he told the a so part of the same sort of three day trek through the mountains in the extreme heat again without sufficient food or water it's so so what we have to determine here whether or not there was a clearing i mean do you agree we have to show we have to determine whether or not there was an up to support the district court's decision that there was substantial risk that had been presented in the laws in the current and the prior circumstance and that the defendant here knew about it and we have to do that by clear and convincing standard no your honor the i think the standard for this court to review what the district court it is of is abuse of discretion i know but the district court had to that in these decisions because he's not making just the determination on the current offense that he was brought in on but on the prior relevant conduct that you all were certain is that right in my understanding that right no you are not on the the court says on this aug thirtieth a vent alone and then proceeds to list the fact that it was in extreme heat it was a three day hike and they ran out of water that putting aside what happened before that is enough and certainly under an abuse of discretion standard wasn't implausible or illogical for the judge to say that those facts are enough to apply this no doubt was clear and convincing evidence in this incident yes in fact that tracks almost identically with application note to the section that says lea someone without sufficient food and water is by definition and so and that's why just what i wanted to get it clear for myself so this prior relevant conduct because i thought that's what the defense counsel was arguing is that he was being held the defendant of the risk but it's just the august thirtieth event alone those factors were sufficient for the court ought to be subscribed discretion standard to find an answer when applied here on the the supervised release conditions the defendant never objected specifically to the judge's explanation for why it was him imposing a three year term of supervised release this court in valencia said that essentially you have if you can't just make a general procedural objection like the defendant did here if the problem was that the court wasn't explaining itself then it's incumbent upon the defense attorney to alert the judge to that fact and in this case the court impose a three year term of supervised release immediately after highlighting that the key factor for certain at sentencing was deterring future criminal conduct by th that defense has not shown that the that it was plain error to impose a within guidelines supervised release term in this case having to answer any other questions and what's our standard of review for you think the objections were made by the defense counsel at the time read architect all of these issues on the supervised release they object they only up gave sort of a generalized procedural objection and that's not applying the substantial risk in handsomer in this case because as you noted the august thirty group was ill equipped for their journey rodriguez cruz had an extensive evidentiary hearing with factual findings about the group's lack of preparedness and i think my concern in your opponent's argument is that this case is distinguishable from rodriguez cruz your response your honor i would just say that the facts in the s are were straight forward and they were on objected to and they showed that this defendant led a group of aliens on a three day hike through the mountains in the extreme heat without sufficient water that's enough under the almost identical language in the guidelines give you one minute i just want to make one factual correction i know counsel wasn't the one who wrote the briefs and he's not familiar with the facts here but in fact mr plot mr to is not oh never admitted or claimed or said to anyone that he knew that mr processes died in fact he's the one that found out only after here rested and then he broke down very remote full about this so he's not someone that knew about it or no one knew that he died until three days after the second arrest but he kind of knew he was missing and didn't know what happened and he was well he learned that his at that time that they were looking for him that's it he could be that he got into the united states and he had disappeared into the population we don't know but whether he made it so important thing about the crossing the circumstance of the crossing i point the court again to the commissions the reason for amendment when they added that language to the guidelines they noted the fifth circuit case gar and specifically said this is narrowing the scope of this of this case and that you don't consider all these generic things about terrain and general geographic conditions as being sufficient to make this kind of showing council did make a objection under seven of regionals and in fact anyways that's fully preserved in any case if the court imposed a as a third circuit said impose this on as a portable alien without sufficient justification in deterrence that is a