this country knowing that was where we're going to see his talk about the possibility of an inadvertent entry into the united states and you're just correct that the offend the fence at the point where he was found in that area was four feet high as opposed to the much larger fence somewhat to the east and i think even to the west is no fence at all to goes up the mountain at that point so the fence itself isn't mark it doesn't say this is an international boundary line and there actually isn't evidence in the record i think people just don't think nick or something well know or any of these other cases where people are actually in the interior where your surroundings alert you to where you are here we're in a place where it's a rural area there's farms here those farms in mexico there's nothing about the characteristics of the area itself which would necessarily alert you to the fact that you're in the united states as opposed to in the republic of mexico the fence is unmarked it's short the area itself was rural with no buildings or any other indications that they were actually in the united states rather nex so the compulsory application of the guidelines he has preserved the error and the procedure for applying plain air analysis that we set forth in crossties in a political so they didn't effectively says you don't follow crosby's i think this panel should hold that where this issue is think is particularly significant there's an issue in this case as to whether or not his first two prior convictions should have scored criminal history points the district court found at one hundred forty one of the expert of record that there was an intervening arrest in between those two prior convictions so therefore the points for both of those convictions should count the finding of an intervening arrest is a factual finding that was objected to on the six the moment basis and i also cited last week to the i think it's  necessary to give the instruction that the defense asked for in the first is factually there were no facts that would support an involuntary act by the defendant in this case there may be facts that that he was very close to the border and he didn't get very far where he wanted to go but nothing that indicates that he was asleep drugs or anything of the sort instead and while those of your theory disorder stand your theory  is you take issue with the notion that there's any potential affirmative defense that can be made to suggest that there was a mistake or that he wasn't aware and have knowledge that it actually crossed unless you can prove non conscious medicine or kidnapping or transport or something that's the only area in which you have the affirmative defense yes your honor except it's not actually that he has to prove that voluntarily walk over to a group of mosquito on the other side of an unmarked fence and it turns out that that is in the united states well i have no defense that i didn't i voluntarily walked in there but i didn't realize that i was walking into the united states i'm i'm i'm a gun you're going around it and the reason for that is because again nothing that you did we would speak to any involuntary action on your part the fact that the sentence if you accept this are going at all that the defense maybe didn't know where the fence was which seems impossible doesn't help him here doesn't help in that he thought the fence maybe was to a farm or something in the in mexico he came to the united states voluntarily and that's our point here also and i just because very briefly the second reason why  this instruction wasn't given was legally satisfactory is insufficient legally it's simply not required that he know that he is in the united states and so while factually and legally there's no support for this instruction therefore there was no error below mandatory requirement for him that sentence an individual at the high end at the low end or the middle of the range there is no requirement in another put another way and perhaps more plainly put that was an advisory guideline range so from under a mandatory regime or so that we know that because of where he ended up within this advisory guideline range so from x months to y months back that he was in the middle shows he knew without any review from this court that he could have gone or from any court that he was on the low end among the buffalo and so on and so far outside of it altogether or outside of it altogether he probably didn't know but at the same time he within that range  questions such as briefly return to judge fisher's questions about whether or not he was a goner if he has crossed the line i think that he is serious constitutional problems with the statute if in fact you could not have any idea they were in the united states and still be subject to liability i realize that some members of the defenses and knowledge defenses and why i think that the instruction in this case should have been given and i think the government's argument that it's only voluntary is contrary to the law after a very serious now with respect to the issue the  were pick a sentence relative to the guideline range if he thought the fan in the more serious offender than an offender the bottom he would give them a higher sense even if he thought the entire range was too high so i don't know what the district court the justice department thought the entire range was too high that he wants  as fairly as he could we don't know what the analysis is but palatino it at for a one third page forty two specifically addresses and rejects the government the government's argument now with respect to the  i've seen this other stuff it's a case of the government's talking about but the issue as to whether or not there was a intervening arrest in between these two priors was a contested factual issue the government offered exhibits the district court judge at one forty one of the e r made a finding the preponderance of the evidence and the day that you're arrested isn't a conviction record assuming that all of those tours applies even further than the supreme court said it did in jones in the frenzy it doesn't apply to anything other than the fact of conviction the  district court had to do with the dates of the arrests and whether or not there was an intervening arrest that's outside of omkara stores and sheppard plainly teaches that we don't broadly read on with our stores and extend it beyond it's the context in which it was actually decided which was soley the