deterrence your client has repeatedly come over the border and has been warned not to come over the border and continues to come over the border sounds like a thirty five fifty three a to me your honor i think those are all those are  that it's actually not one specifically delineated ones but yes under deterrence and protection of the public but let me answer the bigger question because i understand you're saying those are all relevant aspects but the fact that he entered the you're right there's something to be weighed but let's look at for example deterrence how is that turns relevant if you enter the united states a gun point your mind was standing at the border when the gun was pulled out figuratively i don't know how close he was to the border but the reality is why was he at the border to begin what he had been told don't come back and then he comes to the border and he decides to change his mind as a last minute good for him but he put himself in this situation being there to begin with now no it's not what the court ignored the fact that the gun was pulled on him the court considered that the court mentioned that the court that didn't take into consideration he could have gotten twelve months running consecutive right yes six months seems like nothing but that but the issue is if it's wrong it's wrong whether it's six months or life a and b if it were me or my loved one having a third next or six months unreasonably i would i would have a problem with the system so i think even though it's six months  we could say yes i agree with you he could have given he certainly could have given him twelve months consecutively so that would have been even more unreasonable and i think the issue is this is a little bit this is when you know if you have a name convinced me of the six months was unreasonable and now you're the consecutive is within his sole discretion so the fact that he really had hers and he gets caught and he pleads guilty to that he's also in violation of supervised release which it's going usual sometimes and sentencing to give that a person that's being deported again he comes back it runs consecutively that's all within the standard of all you still haven't show accepted the rats explanation for entering and i think that's your best argument that he just accepted the duress and lord it's a six month he said i was going to give you twelve right but i'm only going to give you six should because we defer to this record and if we believe that how is it reasonable to give somebody another six months but also doesn't give it to them another six months and it's not unreasonable for him to do that will but i think here's why i think it's i don't think the law says that he can't the law says that well here's what i think we look at all ok god the supreme court addresses the i the issue here with we're talking about appellate review he can't at the difficult level he can assume that the guidelines are reasonable you know he can't he he can't just adopt the guidelines of that considering more than that and so when i'm saying is if we as we all to the to it that stood out to me and what i thought was unique about this is if it weren't for the fact that somebody had a gun held to their head and was told they have to enter i think this would be as the court has a mine run case but i think that that is pretty unique feature and it goes to the issue of voluntary and i'm not suggesting voluntariness to the level that he had a trial direct defense but because it goes to the level of voluntary net that you're and the fact that the court accepted it what is accomplished by the additional six months so it's not just generally is it unreasonable is unreasonable in the deportable an ordinarily civil rights really shouldn't be reimposed because they we assume that the deterrence and protection of the public is to adequately address a nuisance rain got the new eighteen months it sounds to me like you were saying that he took some guilty act he might be guilty and just for getting to the border in my house even hiring that well look whether he's guilty of something or not in terms of when you think about deterren part of it is do you think about people will put themselves into a situation where bad stuff happens if i walk into a bank you know they made a crime of this i think that is a if i walk into a bank the thinking about i'm going to rob the bank and oh i decide all the sudden i'm not going to rob the bank i have and have a gun and somebody sees me with a gun and boom it's over now what am i going to tell with a wonderful defense lawyer like you what am i going to say later oh well you know i changed my mind ron i really was the bank that's what i wanted to do it just things got out of control on the situation the guy walks in self up to the border he's about to cross the border and says oh you know i don't really want to go over the border well you're to go over the border because i got a gun against your head he put don't come near the border were some guy will put a gun in your head that's exactly what i'm saying and i think that is deterrence but you keep them from committing a crime i'm not saying that the data itself was a crime the fact that he was at the border then he thought better of it didn't want to do it and then a smuggler point a gun at him and told him you will go cross and your honor i understand your argument the argument that the government makes but we don't punish people for going to the border for wanting to cross for one to remember we only have that we don't give them credit for that either and no and if you're at the point there's not punishing him for the act of being at the border what we're doing is deterring him from engaging in the in the potential for criminal conduct if you do things that put yourself in a situation where things like this are going to happen what did he do he paid somebody do we have conspiracy charge we could have that to pay somebody to take him over the border ye deterrence relate to him and i'm sorry i'm saying that the court within his reason because if if i'm going to deter you you so that you'll know next time you will think twice before you do this and when i looked at the transcript there was a lot of talk of sort of unfairness by burchett what the guidelines were doing you know the guidelines were giving them a higher sentence because he kept violating the law if he didn't keep by a lady mole he would have been in the band to get eighteen months that he got right on the underlying of what you're on and that's another whole issue but i think obviously incremental just incremental punishment makes sense i or stand that we do that in our life with our children and i get why the justice system does that but his in actually engaging in criminal conduct a paying somebody to take him across the border but i was right but the issue is the supervised release violation was not paying somebody to take them across the border the violation was coming into the united states and that's what we have to look look at and how did he come into the united states and i will reserve my time  three convictions related to his illegal entry or reentry into the united states and one prior drug conviction just seven months before he came before the district court for revocation of supervised release in this matter he had been sentenced by the same district judge on his third illegal reent the district judge recounted all the warnings that he gave to actually just seven months earlier to deter him from coming back to the united states illegally he remember telling a tro leave us quote don't come back and here's an additional reason not to come back because you are under an unsupervised term of supervised release unquote he highlighted his common practice of telling reentry defendants quote if you come back the sentences get longer and longer and longer so don't come back unquote in spite of the district court's earlier efforts to deter ochoa leave us from returning and in spite of all the criminal consequences that he faced in his priority legal reentry cases he came back to the united states just seven months earlier well the argument is that he came back under he doesn't use the defense of the receive times and he came back under united states with his family right and it's my understanding his family's now back in mexico so should the district court in if i'm correct about that says the district court taking that into consideration calibrating the need to impose punishment to specifically deter him i think the court can take that into account because we don't know if his family is going to return to the united states and if it does then that his conduct in this case indicates that he has a strong motivation to continue returning to the united states if he does that family here who has troubles of his first impulse was to come back to the united states illegally so i guess yeah i get that but i find her standing with this family is not here right yes and even if they're not the we don't know what their plans are in the future and so we'll still have this impulse in him to come back to the united states if his family does return is the you know it leases understand the defense's argument in terms of a lot of the park money principle in the idea that the senate should not be any more severe than necessary to achieve the goals of the a sentencing here why what is your best argument for why this isn't too much i mean you know i mean he'd already got eighteen months within a line crime he was situated to he got on supervised release the i i don't know whether it's history will predict this but the least and the inference would be that he would turn around and go back to mexico so arguably the thing the answer would be that this an unnecessary pound of flesh to impose in addition to what he's already received i mean what's your response to that adjoins i think your point in response to my colleague criminal liability for the illegal reentry but he did argue partial course hundred arrests at sentencing however looking at the way that this court treats coroner durant's as an affirmative defense to criminal liability it also shows why it wasn't really a compelling factor at sentencing and why there is still some need to impose a to tional time to deter him from returning to the united states illegally again and specifically what do you mean by that  yeah and so that's an indication that he still has to turn effect and needs to be imposed upon him in order to prevent him from coming back to united states illegally i think if he had a complete change of heart he would have come to the united states after the main point of the gun is h recklessly placed himself in a situation where he was course to commit a crime and this of course spans from the core principle that the arrest or coercion is only available as a defense if you truly have no choice in the matter but if you recklessly place yourself in a situation where you where you should have seen or you you did see and recklessly disregarded the risk that you would face coroner address then the crime really was a product of your free choice can i follow up on something with you so you were talking to a judge holmes  about the that's a draw for this defendant to come to the u s was that his family was here and the other thing that's in play and now they're not here but the other thing that was in  play in this case is the idea that he had changed his mind once he got to the border so it seems to me wants to have it both ways on that issue that he was sort of disavowing the idea that he was coming here for that his family was a strong enough draw to make him count because he came to the border and decided to abandon that i should we really be considering now the fact that his family post  getting arrested moved back to mexico i guess i don't think that i agree i don't think that's particularly compelling in his favor given that given that he may have other reasons to come back to the united states or his family may return to the united states at some point and if that's the case then he has demonstrated the as an impulse to come back when things get bad and that that will continue to exist in the future if circumstances change from the way that they are now so i make other points in my brief regarding states illegally if the court showed any leniency to him whatsoever and in order to in order to rebut the presumption of reasonableness and of course did show leniency on i mean the court could have run his sentence of twelve months consecutive right correct  by the guidelines exactly the guidelines do indicated that that when a person faces revocation of supervised release as well as sentencing on a new matter even if they're for the exact and conduct the entire the sentences should run entirely consecutively and he did accept the there were three prior illegal re entries in a prior drug crime and that the reentry happened in such rapid succession i mean his that chronology of his offenses were that he was convicted of illegal reentry and false claim to citizenship in two thousand and seven possession of return the rest of my time to the court thank you coun coersion is a legitimate sentencing argument and that we're not making a trial defense and i don't think that there with respect to why didn't he turned himself in once he got across the border i think that's speculation we could