the miranda issue of the undisputed facts in this case is that age and more low a uniform border patrol officer chase mr savant his up a mountain or about three quarters miles for about three or five minutes and held that twenty to twenty five people were not in custody for purposes of miranda specifically because there were so many people there there are twenty to twenty five suspects and only two agents and this court found this court upheld request of another agent who in turn was requested by a government prosecutor for the expressed purpose of every place in life testimony in a trial that was already into dissipated one the request was made and already a request that was so the issue really comes down to whether to see any artist and under the facts i just described which are undisputed and and supported by the government's own witnesses it is clearly testimon every other evidence in this record to go to that element of the crime are the two statements fine made by mr survived the first statement should have been suppressed because cliff you know his field statement should have been suppressed they ability to do that so in addition to the d n a are you have statements that should have been suppressed the field statements and then you have statements whose reliability were not only question on cross examination but actual were argued in closing evidence as unreliable court's instruction for the fourth element of section thirteen twenty six the court instructed the jury that the government had to prove that mr savant this was found in the united states without the consent of the attorney general of the united s that instruction doesn't track the language of the statute the statute criminalizes people who enter found in her attempt to enter the united states without the permission of the attorney general to reapply for admission to come to the united and we apply for admission to her that in itself i think underscores that these are two different concepts that congress was attempting to address two different things with when they when they wrote section thirteen twenty six and the rationale for this makes sense people do not and congress could set out various presumption based on that person's criminal record that presumption will last for five years ten years twenty years or life and at the excerpts of record two thirty five you will see what i would that person would just return to the exact same position that any other citizen of the world returns to that they don't need to ask her permission to reapply for admission they can just ask to be admitted to sort of a double check on people that are presumed to be more of a threat to the united states and other ones that presumption just a few years that person is in the same situation if they enter the united states without inspection they're still here is legally they can definitely be prosecuted under the u s c section thirteen permission to reapply for admission as opposed to permission to enter they focus their entire argument on permission to answer end it all depends where you start is he stated as the district judge stated at the beginning of the zen scene his general practice was start of the mid range of the sensing guideline and work from there after trial having decided th person was not questioned at the time they were stopped from playing their broadcasts of the group and then question answers as being public i just like to know that there's a difference between being recorded a mile near a highway whole section of the files that are not up to date or that they have a backlog or that the communication between the border agents and the central that was not within any common like doctrine and seventeen ninety one and your cock here aren't you your honor well first of all we sent out a twenty jailer regarding this circuit's opinion where i think problem with allowing evidence on confrontational grounds for the reasons and here like a certificate of authentication a certificate of no records would have been allowed or patrol agent circumstantial evidence that person didn't have permission to be in the united states legally at the time of this post magistrate when he's back at the station he initially lied about his name once again circumstantial evidence that he did if you have no further questions based on that i agree with the district court with the instruction a game i believe was appropriate i believe it's still appropriate i believe it correctly states a lot also counts the lender of that mentioned that there are higher penalties if discretionary not mandatory you know your honor and we submitted a letter on that point there was no departure motion made for a mental emotional or physical condition departure now those major two departures which were lesser harm and imperfect necessity both of which were denied the court have the discretion under the guidelines to go the high and low end court to the high end the court also considered the fifteenth of the thirty five fifty three and the fact that the defendant waited here early days before being deported following his last offense and then returning a legal team illegally to the united states so we don't think that the third or fourth crimes of the harmless  analysis would be may have been met by the defendant closing argument was the only time that that was raised mr dunn is absolutely correct defense counsel trial was able to articulate that unfortunately there was no jury instruction to back off it and the jury was instructed that argument of counsel isn't the law the only the only fit that the jury had on this point of law after the law happened during the government's closing and this is that second volume of the supplemental excerpt of record at three fifty three to three fifty four where the government primarily because they all happened in public the vast majority of them found a constitutional violation and there were serious issues of officer safety reports of armed robberies guns being present shots being fired more specifically