in that in the colloquy between counsel and the judge well it's difficult to say exactly what hearing would have showed the issue here being when we're there at least six illegal aliens that were harbored in a home that would warrant the three level increase concede the fact that when people the eleven people in the room were interviewed council did agree that those eleven people told the border patrol agent that they were illegal alien and but the difficulty here is the reliability of those statements were leaked dealing with at least three levels of hearsay and the statements can't it's difficult to tell if those statements are accurate there are a lot of reasons that people have incentives to lie in a situation like that and we can't tell based on just the statements in the p s r one reason that somebody may lie was stating that they're an illegal ilian is opposed to a person who's actually willing smuggler which could have been making or is that if they did that they're illegal inly and they'll just be deported back across the border and they won't face criminal prosecutions for an alien smuggling charge so given just the limited facts and appears tar that would be difficult to tell based on that information it's important for a sentence to rely on good solid evidence and the fact that the illegal aliens were deported after they were interviewed would not have an opportunity to interview those people to find out exactly their their citizenship it's possible they could have claims to through their citizenship without interviewing we wouldn't know and thus who really left with just the facts that are in the police report the whole point goes i was one of the facts and judge must which is do you dispute that there were looking people stuck in one room that is true that that is one of the facts that defense council did agree to however defense counsel agreed that those eleven people told the border patrol agent after being interviewed that they were illegal aliens defense counsel didn't concede the fact or didn't the figure actually illegal aliens again without an opportunity to interview them and find out their exact immigration status and background history like defense counsel couldn't see the fact that they were actually illegal immigrants without any opportunity to interview them prior to the deportation this was a fast tracked case and there were four people that w afterward that were interviewed by border patrol but initially upon questioning based on the record one eleven people were questioned it just stated they were questioned by border patrol and admitted that they were illegal aliens it doesn't state in which the manner they were questioned and specifically regarding their immigration is it your contention that at such a hearing if it had been held that the aliens themselves would have had to been presented for cross examination as opposed to a border patrol agent saying these are statements being against their interest and therefore an exception of the hearsay rule applies yes based on proffered we would have reliability problems with the statements using to being used to enhance it's our position that based on just the information in that the probation report that these statements are unreliable and wouldn't meet the preponderance of the evidence but i think it's also important to note here that not only did judge in the number of aliens and handsome and certainly would be more than substantiated frankly the facts in the present reporter clear but those are the facts that were objected to by defense counsel so it's clear that he also towards the end of the hearing which lasted for approximately two hours before that point between the defense counsel and the district court ultimately next the finding that i have already dealt with a three level increase in the court not for the facts but i relied upon the challenged and we can't tell just from the statements based on the p s r whether or not those are reliable when somebody has a strong incentive to lie also no people were found in the room that didn't have their shoes on but there's nothing to indicate that because you don't have to use it means you're an illegal alien apparently they were left outside the door and it's not as though they were locked away and being kept away from this point i would like to reserve the time remaining you  disputed facts she backed away from that at the sentencing and if you're asking what it would look like the government would have to put on witnesses and appellant makes the argument that it was her it was your mistake calling it a concession she just said i techniques and what does she have to say to trigger that kind of hearing she has to why i think judge moscowitz i made it clear if you had made it clear that the distinction was he doesn't think that conceding contesting are the same thing he made it clear on page forcing a defendant to essentially disprove facts in the pre sentence report that does amount to burden shifting under on why this court held that exact that it's very similar to what happened in