presented three issues on appeal with the court commission i'd like to proceed directly to the second issue which is whether or not just record properly failed to instruct the jury as to the voluntariness elements for a found in thirteen twenty six charge thirteen bravo are using his conviction must in fact be reversed because the district court did err in failing to instruct on the voluntary act element despite evidence presented at trial that mr ickes bravos entry into the united states was not willful extradited or being flown by an airplane asleep i mean you can say that he walked into the united states that's correct your honor but the circumstances under which he walked into the united states are what bring up the voluntary and knowing element you say he was under the influence of heroin that's pressure and was lost as a consequence there out well but he voluntarily walked into the united states well that's the question is whether or not he could he was  where they found him not necessarily because he didn't know where he was if you were lost or hijacked or any of the other circumstances that the court is raising other cases in the united states then certainly that the defendant would be entitled to a voluntary this instruction that the jury then could determine whether or not there was sufficient evidence that mr ricci's bravo had in fact been lost or confused what was that what was the evidence that he was so far that first of all that he was under the influence of heroin and secondly that it was so far under the influence of her heroin that his actions were involuntary as you describe them to us in other words he was incapable of knowing what he was doing or where he was what was the evidence on believe that's of the excerpt of record of page twenty seven she wondered then based on her experience and professional training whether or not he might in fact be confused or lost or under the influence of some mind altering so the evidence was that she wandered she was she wondered and she did ask him that did you perform any tests she did not perform any tests she asked anything like tests or anything like that any tests at all to just to discover the extent if any of his heroin intoxication  into the issue at all correct he ruled that there was not any sufficient in disha that he was lost or confuse your client testify on that score you deny or he did not we relied on the testimony presented by agent garcia and the other agents who were present at the scene was he to what extent was he non responsive to any questions he was somewhat responsive but as noted he seemed lost or confused he didn't have with in any identification in have a backpack you have any extra clothing any contact information any maps any food any water anything to indicate that he was planning on taking a trip through what agent garcia described as very rocky and has what was he doing what was he doing then wonder area on the other side of the border notably unlike other cases the different panels of this court has heard there wasn't a fence or anything he had to climb over to enter into united states there were no pylons indicating that you were now entering the united states so he was going through a very rocky and mountainous terrain and came upon someone who actually approached the border patrol agent asking who knows why he approached and she asked him questions and gave him water it was later than determine that he was under the influence of heroin and it turned out that agent garcia's interpretations that he was lost or confused were in fact true so that when the defense did present either according to  across the border yes he did he pointed south towards an eel valley my r of operations towards the o'neill valley yes and was that when he made the statement that he had crossed earlier that day that's correct so he events then awareness of crossing the border  were the statements he made and i don't really have a testimony i you know i don't know what she said and where when he made the statement he crossed earlier that day that's correct that mr ortiz indicate where he had come across the border yes he pointed south towards the o'neill valley yes and was that when he made the statement that he crossed her earlier that day that's correct i mean what you do with that his statement i'm contradicted as i crossed the border earlier that day and his statement if we refer to the border voluntarily and then took heroin what the time crossed the border and saw it in garcia he still was voluntarily in the united states i think that would be a very different question but is there some evidence they should hire one before you cross the border i think you statements where that you're taking heroin earlier in the day before he had later found out that he was in the united states i don't want to beat a dead horse but i don't see how you can claim there's sufficient evidence to get an instruction corner over there certainly and at that point in time when he's talking to uniformed united states border patrol agents in a marked border patrol vehicle he's figured out he's in the united states unquestionably i think the showing we are from the conviction what kind of a man is your client get something unfair about our question i miss i misunderstood much the answer the answer is we think i that he should get a full remission and because the church must list at the time not only did not know that the guidelines were not entirely binding on him or that they were advisory but also that we objected numbers starting at the end of line eight and going to the end of that paragraph at line eleven ok knowing that this state of the law may or may not change you wanted to object to the calculations based on the predicate findings that require more than one factual finding for criminal history points the law is in flux he objects to the calculations and the increase above the statutory maximum of two years based on the finding of criminal history point which is what normally well challenge would require normally full challenge would require a reference to the sixth amendment but i think this court has held that any time the constitutionality of the guidelines has been called into question that that is enough to preserve a full remission and and here although in artfully done in saying that the law is in a state of flux our position is that that was preserved by saying that the law is in a state of flux just wanted to object to the calculation based on predicate findings this require more than one factual findings with me and i mean specifically that the factual nauseum that the defendant was over the eighteen at the time of conviction that the conviction documents were in fact what they state to be that according to shepard the conviction documents were adequately proved the panoply of arguments the fact that that it's a constitutional issue that's being raised here the district court judge moscowitz had to find that mr ortiz brothers priors were not related that they all scored as they were supposed to and that calculation of the criminal history points and the and the court adjustment of the plus two plus twelve and hence men under that to a one point two guidelines i don't know if it reaches the level of a constitutional challenge  had sustained the years in which they occurred the ninth of the sentences the type i'm not even the title of sentence just the date whether they were related to one another in the length of the sentence and those are the findings that carroll had me a tactical decision not to call those two individuals and that's a supplemental excerpt of record page fifteen with that said that what we're left with is the agents on observations of the find the then in this case we had evidence that the that the defendant was it seems tipping some water walking towards the border patrol agent answering the questions and responses matter albeit smug pointing page thirteen in the s t r and basically it's a sheet of paper that this individual was transported from the border patrol station to a detoxification the server the where he was cleared just a few hours that same day at four o'clock that afternoon