to warrant this six level upward adjustment in the base level pursuant to the guidelines and i submit the evidence is lacking on that it's the government's obligation to show submit by clear convincing evidence that in fact there is evidence that requires that increase we're not talking about whether the judge could take that factor into consideration but is there a mandatory increase to the level eighteen and the evidence is simply laugh i apologize i don't understand you use the word mandatory well the the there's a qualifier for the enhancement or not yes doesn't qualify for the advance but we i guess i agree that the judge could take this into consideration under thirty five fifty three factors however is it really is the increase going to be to the level eighty based upon a substantial not in evidence for example indicating that there was a substantial risk of serious bodily injury because they you're not disagreeing that the there was an alien was put in the dashboard and that she was hanging by the strap right correct so that this record found based on that that it was it was unusual and i think he said precarious and so inherently dangerous for that reason yes so are you are you saying that that's dixon and tori's floors but the but here the person was not in the passenger compartment she was hanging in the dashboard yes in the dashboard area and there's no evidence i've had real trouble visualizing what this entails yeah i've looked at the photographs that are part of the excerpts of record and i can't make any sense out of the photos either can you describe to me what you're under standing is of how she was positioned i mean by car and big enough for for anybody to fit inside the dashboard so it's it's not literally the dashboard i assume but where where is the person positioned no actually it's in the area where the dash and instruments would be there are no moving parts in it as were speculated by sometimes you find it in alien smuggling cases and they're put in different compartments one of them is the desk board of a van in this particular case a van there is an awful room for a small woman perhaps herself to be put in there literally and the question is would that particular position create a substantial risk of death or bodily injury book course it would first of all create a increased risk of an accident or secondly would being put in there cause you substantial risk of injury neither one of those are occurred but it's actually ask you this in the last case we had a video situation here it seems court can rely upon the pre sentence report or less is factually going to be contested by the defendant and the defendant has some responsibility that situation to come forward we call it phatic or hearings in the second circuit but what about here why didn't they as always has the right to come to court and say judge i want to have a hearing i want to show evidence at the p s i was not correct i'm just curious as to why what was done here no it wasn't done because that is not my obligation to do so but the guideline and to that it's a part of the vehicle that's not intended for transporting persons so given our deference to the guidelines why isn't that enough for the district court well i do not see any part in the guidelines itself that requires that is that in the application that was yet the effort yet we take give the application it's the same weight as the guidelines the application notes are not  guidelines mandatory and in fact are do not constitute the law but we give them that weight and your problem is you're got the wind in your face i mean the we have a finding by the district would submit that the what the court should do is to modify the sentence so that it would be the low end of the guidelines which would be my clients that are for a ten to a level ten as i asked in my  sentencing assim memorandum and that would mean time served because he was arrested on february fifteenth and march fifteenth it's fifteen months that is what i'm requesting you to do to to modify it to the time served for that reason to say the balance your time for a bottle yeah ok we'll hear from the government please excuse me mia please the court larry spawns the united states placing someone in the dashboard of a vehicle is inherently inhumane and inherently creates a substantial risk of serious bodily injury or death as the  denim to the p s r found as the district court adopted the district court was making clear that it agreed with that when it asked counsel you know compare this to someone writing on the floorboard and someone in the dashboard he was making that what i think is the obvious thing and in the dixon case where they dealt with the hatchback the court said there the reason it well first technically they simply held that the district co clearly erred because the the person was in a trunk and that's what the district court found it was an error but that the court said i had to back isn't obviously dangerous as a trunk and i would if a trunk is obviously dangerous dashboard is even more inherently dangerous and we think that's what the district court relied on those are the facts they're the only dispute as to facts was whether she could have removed the strap and whether she could have access sufficient oxygen i'll concede that i'm not sure that she could have removed that they had to cut it but even conceding those that position is inherently dangerous for the reasons described in in our brief oh i think what is the actual language of the guideline part but the actual language of the guideline is intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person yes and i would say putting someone in the dashboard of a car fits that to a t now because it increases the prospects are the chances of there being an accident i think it increases the likelihood of an accident because now they're placed in close to where that the steering wheel is there all the electrical things are there if if that person moves the wrong way or get shifted could affect the operation of the vehicle second i think it increases the risk of injury even in the absence of an accident that is she's placed in a position next to the engine compartment where there's heat there's again there's all the operational things that happen in a dashboard and finally and most importantly i think it increases the risk that if an accident occurs a serious injury would result if there's an accident that  a safe place no matter how well strapped in somebody is if it's a front end collision that engine comes back into that asp or there's a side engine the side collision that's board is compressed so i would say even under all those taur flores type situations it means at least three of those any one of which would be sufficient so we believe but i wouldn't say that the court was correct in saying it was inherently a dangerous situation i can't imagine a situation in the death or serious bodily injury and it simply is not and a situation like that in that strapped in situation some may sound dangerous to someone that hasn't done that before and obviously it's not lawful to do that but it doesn't warrant that mandatory increases to the level eighteen if i have those factors are and in existence it must be increased to a level eighteen  something the judge should have taken into consideration but not increased it to a level eighteen there was no into evidence that being in there increased a risk that the car couldn't be operated right and could make a cause an accident no no indication that her being in there caused her injury or she was in any way in danger of being in there and talking weather and seeing it play think she was not in any way injured and appeared to be  properly strapped in there it sounds almost like something that someone with the expect and another to cite a situation thank you very much thank you we thank both counsel for your argument the case just argue to submit it we will be in a brief