the money then sprung up out of the fingers on behalf of mr lopez mr lopez conviction must be reversed because the district court in just a certificate of non existence in violation of the confrontation clause now this consider whether a reversal is required measured by whether the error if any is harmful actually your honor and i disagree this court has repeatedly stated that waiver principles apply to the government so i don't really think it is done but i'm also saying can't we if we wish look at a record and still a spondee say this makes absolutely no sense to rehearse because prosecute could use its discretion but this court could use its also discretion in use waiver principles against the government and there have been cases where the government has not argued harmless air and this court has stated because  the government didn't argue it we are not going to reach that decision so you have the authority to not reach the harm was there i understand that what i'm currently on that you saying if we wish to why shouldn't we say here the defendant admitted to the border patrol agents that he didn't have permission to reenter that he had no documents allowing him to do sell that he was a citizen of mexico it was stipulated in the a file shows no paperwork  indicating that he had permission to be here and as a matter of just common sense you look at that and you say what difference could the certificate of non whatever  because the cia are sorry what the statute requires is that that the individual did not receive permission or that the individual did not receive the attorney general's consent to reapply had permission to enter or be here in the united states which is a fundamentally different question so there is still this open area of whether or not to see an art was actually the only evidence directly on point to the element of the events further the government relied on the scene are heavily in its closing argument it was the first thing that they even argued and there should be some waiver principles implied in this apply in this case the government had a chance to breathe to bring these facts to the court's attention to say we believe that this in this case we even without this we could have proven this beyond a reasonable doubt they didn't but moving on to the sentencing issues in this case regardless of what position this court takes on the and only remember which i believe the government's going to be requesting for additional briefing on that i feel regardless of whether or not it is there needs to be a full remain and because there's two  of the guidelines in this case first district court should not have increased for sixteen levels and second it around easily held that it did not have the discretion to depart when it really did turning first to the enhance respect to that i think at least to me it's appropriate pretty clear that california the california statute is broader than some part one of the god i think that's right so the question to me is sub part two and what is meant by forcible sexual off fans in context of our decision in theory i don't know how to pronounce it either  those cases actually say is that including a term that doesn't have an element such as sexual abuse of a minor will that there is something here what they say is that every one of the  using physical force to commit a sexual offense i mean if you took forcible out of it it would be any sexual offense meaning anything that's been involved consent conceivably could then be this sixteen level increases but you know unique is all other definitions of crime the violence has this catch all that if the vents were produced a substantial risk of physical injury then it can become a crime of violence well when they committed these guidelines i believe back in two forcible if you read the government's argument ok because it has an inherent risk then you've taken force out of it and the language is clear they have to have force in the guidelines specifically  n has to make between the c n r and the review of the records undertaken by ruth jones in washington the the under the review of the alien file undertaken by the custodian records testified to this specific question was asked of the answer no so that's an accurate record on eighty and eighty one and i think that there's not any doubt that this was harmless error and also obviously the admissions of the defendant on two different occasions in this case both application or understanding of the guidelines that's an academic question anyway so maybe what you are to do is explain why there was an error because it's right in the least to me it appears that the california penal code section is broader than the guidelines yes rather and i think the the focus of the government's argument look the main argument is that under forcible sex reason has perceived authority over the victim and involves no physical no violence no physical restraint correct all psychological correct have economic consequences but it doesn't necessarily translate into physical force it doesn't translate into physical force but a threat of force when an individual unlawful restraint another you're saying this that the guideline contemplates the use of psychological fourth yes so any time so a man a taller man over a shorter woman even if there's no official but that implies force even though there's no touching or anything else if the psychological force of that sort to qualify under the penal code and it qualifies under two of the under granted i guess your question i'm sorry yes yes yes this answer your question ok so you're saying that for purposes of the got guidelines where it kind of place force it's enough that the guy was taller than the woman and therefore got convicted under california law even there's no touching there's no official restraint or conviction requires two forty three point four eight requires unlawful restraint if the individual beyond a reasonable doubt had been proven to unlawfully was strange the boss says you can't leave the building here if you leave the building without submitting to my government form that says you need permission in the first year is that still my government my understanding and mr trump and feel free to correct me if i'm wrong is that we no longer use have form and your departure yes you are certainly at the at the time of the sentencing he could have and certainly now he he can and that's abundantly clear and we believe in looking at the totality of the sentencing hearing both reading and sort of cover to cover believe that the that the judge did in fact consider this i stand of the record is is not crystal clear on this point however he did indicate there was a dialogue between counsel below and between the judge regarding this form and how sort of the judge was saying while i was correct to reapply would be in the eight file but the specific question that was asked were you able to locate any information that he ever apply for permission to reenter the united states after his order issued no i was not so the specific question was there any evidence that he made