a change of plea on the sixth count which involved re entry after deportation and this is a case that involves the hostage taking illegal aliens and also the harboring of illegal aliens there have been a number of issues that have been raised in our brief in the first issue that i'd like to do to address this morning is the issue involving the vaccine challenge the court of the where there was an individual by the name of mr  s he did that quite forthrightly you know everything you're saying is correct but when the prosecutor was called on the carpet and asked for a reason why this had happened the prosecutor said that as a general rule my policy is to pick people who listen and understand without it being repeated because that's not what happens during the trial and the prosecutor said that's why i kicked off the streets of paper because he didn't understand questions and i want jurors who are attentive enough and sharp enough to be paying attention and then we have a trial court's ruling who was sitting right there saying that that's a not just for minatory explanation and there's a failure to show that this is a pretext or pretextual for the purposes of challenges that i now how do we as an appellate court penetrate that trace there's a reason given the person isn't paying that close detention routinely i knocked him off in the trial courts as i'm sitting right here watching this and i find it's not a pretext how in the world do we penetrate that on appeal well of course it can be misunderstanding but i misunderstood the question that's true the jury did serve in the prosecutor says i don't have time for people who don't understand what's going on and i'm saying that that is not a realistic view it is not true think i have to agree with pot in the sense that it's very difficult to trait that in terms of the trial court was there he didn't tax thank you misunderstood it it's not you know it's not without reason that employers would be concerned about someone that doesn't get something right the first time i mean i think you're better art i mean you're better argument and i don't want to tell you how to spend your time when it goes  statements that were made about telling the panamint maining and the security guard i mean i do have some questions about that but i'm islands movement issue number two i'm not really i'm not really persuaded by the charter argument i will just tell you that well the might be a little problem with prejudice to his client if this information about killing a panamanian shooting a security guard came out in front of the jury and he made an emotional rather simple motion  i mean obviously that the prosecutors argue that it goes to i think both to victims state of mind and also to to defend state of mind as to intimidation cracked correct and obviously there's a lot of other evidence about intimidation you've got got to play and you've got you've got all of us but the argument be made is what would be what would be more productive than you know threats of violence to others if you playing with guns and they're you know talking about these things i mean isn't the argument be made that you know i mean hey you think they're both going about their you know using it to intimidate them but how much more sympathy than a gun i mean i guess the worst thing is that they used a gun and someone else but then isn't doesn't that make more profit instead it would be more intimidating you know i don't know it's hard to pull the it's hard to pull it out already gone on don't they already know that their lives are under threat by armed i'm not going to stand here and try to say that people and rightfully so wouldn't feel intimidated in threatened by the against them that had already been made by someone harmless there even if you're right well i just admit to the court it's not that the overall effect in this particular case knowing sleeping and in fact if you read the testimony of this particular you know witness there's no indication at this point he in particular is cowering from there he basically is listening to this it's late at night and there's really made was made to intimidate i'll tell you what i don't mean to interrupt you but we've got to hear from your co counsel understood thank you any case or rule that says you've got to balance these out an individual situation i couldn't find anything where you had a case in which group was sentenced first and then there was a wait time and then another guy comes in and they decide to change the way we think about this or we're going to do it differently i didn't find a case that effect and i you know i have to tell you and i will not use this in deciding this case but the other day i was watching the senate judiciary committee on c span and the senators were beating  pickering to death from mississippi because he dared to reach out in a case involving three defendants and tries to try to equalize the sentences and it was very interesting to watch because i had been studying your case and here the senators were hounding somebody to pieces and accusing the judge of being a law breaker because the judge felt that he ought to balance the sentences between three defendants charged with the same cross burning so for what it's worth i guess that's why we don't use the senate judiciary committe is rather strange way of attacking someone who is trying to do things to be right and that's kind of what i'm asking the court it is and that's why i ask you is there any rule or regulation or guideline or case well even justice the power to do that well yes there i we're going to get in trouble with the supreme court on this one go ahead the guidelines chapter one part of section three the basic approach and i'm quoting second congress not reasonable uniformity in sentencing by narrowing the why disparity disparity so they're saying look we don't want what the purpose of these guidelines is that we don't end up with a situation just like we have here today where one guy because the judge has melkor gets half the sentence my client does for the exact same crime and the only thing that we can point to is the fact that the probation office just changed their policy in the little of this case as to how they were going to congress had been worried about that they would have either enact a statute or a guideline would have been created to give the sentencing judge the power to override just very he's created by people appearing at different times that that just hasn't happened i understand that's fine asking you to do that how balance it out and then who's to bear and so how could you take somebody who got four months and say well you know the probation officer says you should get four months but these other people got thirty six years we're going to give you thirty six years and we're balancing it out to make it all fair but i think i think that that's a little bit different in that in this case the prosecution had the opportunity to appeal the sentence if the sentence in the first two cases was administered iranians actually the government had the opportunity to appeal the sentence and say  look you didn't count this right you're supposed to do this this dismissed and you didn't do that and because of that the sentence is now half of what it should be they didn't do that they were they were willing to accept the sentence as correct and i believe that the sentence when your principal allow a judge to say i really think that that's where the sort of research going to elevate these other people in the in the interest of equal protection and blast them with the same sentence even though the grids and everything like that suggest that that's not appropriate for their  because i think that the trial courts have the discretion to stay look there's a reason why i'm going to give this fellow a much higher sentence and i can afford to part that without breaking the sentencing guidelines as long as i give a good reason i can  that the order that a new pre sentence report be written that same method of calculating the sentence used by the for the the first two defendants that same method of calculating the sentence to be used in  the infirmity and that's the problem nobody's ever said that what they did the first time around was a mistake so all i want is them to not make a mistake in my client's gift that they seem to say that there was a mistake in the first tooth so we're going to punish the second guy and i'm saying that that wasn't a mistake and the first time around it was the method they'd use in calculating sentences for years literally years in our district what i've seen your honor is that under under of penalties under terms it implies that you're going to be sentenced according to the sentencing guidelines  it seems that you know as a former trial judge we don't really like it very much from we make motions and you know we rely on emotion and money and then the prosecutor goes right against it and tries to sneak it and then now you know i mean the united states did lay because she forgot i was prosecutor i forgot i did lay proper foundation and i don't forget when it's something like you want to get in that some guy murdered someone or that they you know that they shot someone you know forget that type of thing because what you're saying is if we believe that the proper foundation once who made the statement the prosecutor was never given that you know actually the problem he didn't say that that had to be the proper foundation he said he didn't see it mattered who made the statement and i is making the statement well that is that is why we have to analyze that in terms of the law but i think you're defending you know i mean that's not very you know i don't think that having been a prosecutor i don't think you forget those type of thing also the state of mind to think well after the statement came in did anyone say to the court after well give a limited instruction to the jury and tell them this isn't for the truth of the matter that they did in fact you know keller panamanian or she just security guard  have evidence that the defendant and others rack to guns that they threatened to kill people and they actually verbal he said i'm going to send you home in a box and the victims they thought they were going to die and if they were going to be killed judge found that it was just statements certainly not poor for being material as raised in the briefs it was never presented that it actually occurred it was just that it was impact on the state of mind certainly be making misstatements however again i think that the error if there is any is as harmless as well the evidence is overwhelming everybody testified that there were guns the defendant not is that a factor have a limiting instruction be more like four of corby and there was certainly no evidence that this ever occurred and the prosecutor mentioned this several times did the prosecutor ever mention it in terms of the truth of it or does the prosecutor always try to t were properly calculated there's no dispute in that the expense counsel then raised that they were improperly calculated in fact it's not raised on appeal by either defendant the judge found that they were properly zero three in our district and there was a quite a large one prior to this and that's where they learned that perhaps they weren't doing it correctly and they should be adding however the difference as stated in the  no one knew i mean it's not like the united states knew that they were wrong and could appeal it it had never been calculated a different way previously fars united states in the district court knew in the first time the sentenced that was it was proper and it was a mistake and they didn't benefit from this mistake but they also had much less of a role in the two defendants who are here today you also had the