objection gave a sixteen level increase this court reversed that in lopez months and yes so we have a guideline error which results in an eight level difference the way i calculate it it's about a half reduction in the guideline range down from fifty one to sixty three down to twenty one to twenty seven so under cantrell reversal is required and it can't be harmless was the court has any questions on the sensing i'll proceed to the merits the first issue i'd like to address would be the deportation there a challenge to deportation based upon the failure to advise mr by his terrace of his his rights to apply for the relief of voluntary return now the government in its response brief makes two arguments says number one that he wasn't eligible because he couldn't show good moral character and number two that he didn't show that he had the means to be to actually repatriate himself that just i should back up from it he's from nicaragua but the actual deportation order which i think is a our thirty three said that the written deportation order says that he was willing to go to mexico as a second residence rather than nicaragua so i'm going to assume that he does needs to demonstrate the means to go to mexico so the first going to the good moral ins exercise its discretion on his behalf to release him on his own recognizance with no bond whatsoever so i think it's strange credulity to argue that it's implausible to say that they would find that he had good moral character on the one hand but to acknowledge that in fact they would release him three months after the deportation order without any conditions whatsoever other than he report on a regular basis and that's at one fifty six f so i think that since we only have to show a  plausible basis for relief it is entirely plausible that he thought he could meet make the showing of good moral character because the lack of criminal record and because the ins is own evaluation of him that he was worthy of a no are released the government second argument is that he didn't demonstrate he had the means to get himself effectively to mexico and that also is refuted by the record if we go to e r one fifty six h which is a internal i document that reflects that when mr body sterols was released o r that he had sufficient funds to get a bus ticket from oakdale i honestly don't know where oakdale is but from oakdale to houston to san diego now i know texas is very big but if he can afford to get himself from houston all the way out to san diego he certainly could afford to get himself from houston to mexico so there's effectively irrefutable evidence that he had the means with which to voluntarily return himself to to with that question the government has the burden under lopez vazquez and baldo figure relit to demonstrate a knowing and intelligent i guess the actual language and in the ball that was considered an intelligent waiver of the right to appeal and there simply is no record that mr biased arrows ever had his right to appeal explained to him there's no deportation tapirs so there's no record contemporaneous record of mr by sterols receiving any sort of explanation of that right whatsoever there's no written record that he received any sort of explanation of that right so wonder lopez vazquez the government bearing the burden can't possibly prevail on that issue either  i think you're now talking with weight right well my point and i may press some respond to the wrong question my point is that we there's an exception to the exhaustion requirement because there is no basis on this record to find a considerate an intelligent waiver of the right to appeal the initial one thousand nine hundred sixty four taishan ruling and that's because there's no record here that demonstrates a knowing and intelligent waiver as fast as there was actual actually the judge told all the individuals that they had a right to appeal and he provided some explanation of it but this court nonetheless found that that was insufficient here we don't have any record at all of any sort of explanation so my position is that number one that violates due process because he was  judicial review because the government can't demonstrate a waiver and number two it satisfies any exhaustion requirement that he may that may be imposed by thirteen twenty six d because of the above the case and the lopez so the bottom line is that if he had appealed the voluntary return determination he had a very plausible chance of winning because he was both eligible and the government can't demonstrate a valid waiver with these cases and in the vast majority of them you've got a deportation tape that explains the right to appeal to the individual who's in the proceedings that's number one and number two in addition to that explanation that's included on the tape there's often  form that's provided to them that explains their right to appeal and then there's indications on the record that there was a translation and so on and so forth so this is by no means a floodgate type issue we've got a relatively unique fact pattern here where you've got a deportation hearing that doesn't have a tape you've got a hearing that never actually was even reduced to a final typewritten order and number three there weren't any documents offered to show that the mr baez stereo's was advised of his right to appeal so by no means is this a slippery slope this entry what happened here is that there was a two tiered attack on the entry into mr vice their offices home the defense argued number one that there was no consent to enter the home and number two it argued if there was consent it was gotten by way of a groups which is not proper under this court's decisions in philips and bosie now what happened in this case was that agents came to the door it's only six thirty in the morning and the sixteen year old son is the person who answers the door there's disputes about what was said between the agent and the son but the son goes upstairs gets the mother the mother comes downstairs now here's where the parties accounts diverge the agent testified i didn't tell the son anything about the roops which is that there was some accident involving a vehicle and he also says that i didn't answer the mother according to the agent was the person who actually gave him consent the answer so that's the agent's account by the way the agent also said that it was the mother that answered the door but then he changed his testimony later on so anyway agents account is no mention of the roofs mother lets me in ok the son testifies the sixteen year old son testifies that the agent came to the door and he told me the roost story that there was this accident so then he goes upstairs leaves the door open says he did not give permission for the agents to answer he goes upstairs and then the mother comes downstairs now the mother's testimony is that when the son went upstairs he told her that there are agents downstairs and they've told us about an accident involving the car so he conveys to her the roost story that the agent was providing to him so his testimony is corroborated by the mother's testimony which indicates that he told her about the roost which he would not have known if the agent was telling the truth the mother comes downstairs and her testimony is that the agents were already inside the house and that she never gave them permission so we have two very significant conflicts we have a conflict with respect to the roof story and we have a conflict with respect to the actual consent to  now the district court's findings in the case are pages one thirty nine to one forty of the expert of record the district court never addresses the direct conflict between the testimony of the son and the testimony of the agents he does say that the agents actually didn't provide the roofs to get into the house but he never says that the sixteen year old son came in and lied under oath about what happened when he was met with those agents at the door now but just record then goes on to address the consent issue the consensus you he says based on the evidence and testimony that i have heard as well as the credibility of the witnesses i find  again the son was corroborated by the mother and then only a bleak reference to credibility with respect to the consent issue i think that of the skate courts cases creates of the and taylor versus maddox that those findings are just completely insufficient particularly as to the roost story because there's just absolutely no reference whatsoever and if i could just quote from the taylor versus maddox case it says in making findings a judge must acknowledge significant portions of the record particularly where they are inconsistent with the judge's findings well there's absolutely no recognition here that the testimony of the sixteen year old son and the agent was diametrically opposed and this certainly isn't a case where the agent's testimony could easily be credited because in fact was never reduced to writing you've got a guy who is in my experience and this never happens again i who was released o r three months after he was supposedly ordered deported and then he's not physically kicked across the line for ten more years until  so the defense said look this is all crazy stuff this is not proof beyond a reasonable doubt of an actual order of deportation the statements that were taken from mr by stereo's he they were included in admission of deportation so th if adequate miranda warnings were given doesn't that render the prior warrantless prior in improper search harmless but no not at all under brown versus illinois even if the violation if in fact we were to win on the fourth amendment violation that would constitute the most egregious fourth med and you can have violation you can have an actual entry into the home and arrest within the home so i think there's a very substantial claim but of course the district court never addressed that in whalen in this case actually did consult in the thirty five fifty three eight actors in fact highlighted the ones the factors he thought were most salient as to mr ballesteros and that was the need to deter future criminal conduct as well as to protect the public he allegedly had returned just a month after being deported after paying for a false mexican passport and then returning illegally to the united states and also the fact that he had a step prior felony conviction as evidence   because it is there any possible relief from deportation that he had at the time let and yes your honor mr public i was pointed to a number of things that have arisen in the record since that time however it is the question of did did the immigration judge he have demonstrated before the immigration judge at the time all of the different things that he was required to do and the fact is if us our wish obviously was created many years later in connection with this and seeing me ever raised a couple of the circumstances or facts about him the fact that later on the order of release on his own recognizance suggest some things about him doesn't go to the fact that that is the question of well what can you demonstrate at the time and at the time there was simply nothing that was raised in the record below two was supported his claim that a voluntary departure would have been appropriate for him i would note that on collateral tack it is the defendant's burden to demonstrate not only that he can previous occasions and that he was in the country illegally so to the extent that he was required to show that he was a person of good moral character he was in the country illegally there was no evidence that he had any means in terms of what kind of employment he had the consistency deny voluntary departure and if without any criminal record and generally speaking in this kind of case when you say that typically the immigration judges yes would look to certainly that the the factor of what their criminal record was what it weighed in but again there is no automatic well simply because he had no record he would have gotten voluntary departure there's no case that holds that and that would rob the immigration judge of his discretion which of course is consent to enter and that the agents entered and arrested mr ballesteros at a place where they had permission to be the second stage is whether or not and this is the stage i believe mr masters hasn't really addressed whether or not the alleged evidence that arose from would concede i presume that the agents tried to use a ruse to get in i would not agree you're on i believe the district courts finding supports that because the agent said that when  there's no question that at some point the officer said untruthfully that they are interested in finding her husband because there been an accident right there's no question that he at some point said that i would submit that quote you know i understand a careful reading of this court's ruling in phillips suggests that that is not correct and in fact in phillips the court there discussed that when determining the law enforcement agents entry into a home regulatory officials purpose in being there and that the court found that was an affirmative misrepresentation as to his identity and his his purpose and that his things that he was able to observe there which would form the basis for a later individuals in their homes like anyone else can and so all right and since i'm so if it's true under boston just assume hypothetically the posse prohibits the use of ruses by a law enforcement officers they have ruse but it's a two step ruse that is to say the son was talked told an incorrect statement in the son and then went on to tell his mother and his mother may have given consent based on what she learned from the son there what about of the record in that case there were i believe or one government what is the two defense witnesses the court in that case cited one or one of each but totally ignored and and failed to to cite to the third witness which was  favor of the defense in that case here there is no identifying well you know i consider this that but not that in or is any any kind of a mission in this case the court simply said the way the credibility of the witnesses she had four witnesses that  i don't i don't at least i don't see it here what i see is the gist of course saying using a ruse is ok arguably improper under basi your key distinction is that they were just record credited the testimony the mother that she invited the man although he doesn't really say that specifically so there's no there's no is the threshold of the whole that is what is protected there but that individual an argument can decide who they want to have inside the home and they can invite someone to give consent for someone to come into into the home without any constitutional even if you're honest which is fine that the district court has clearly erred as let's admit that there is that still the threshold question that hasn't been met as to whether or not the evidence resulted from the l h d reality which is the arrest in the home and i believe that the harris versus new york case is clearly controlling and is very helpful in this context and in that case the supreme court said that these pollution ery rule does not bar a state's use of the statement made by the defendant outside of the home even though the statements taken after the arrest made in the home in violation of pages that case where lee are on will applicable to the fast here where we have a statement that was made later on outside the weight as cases in which the alleged illegality itself was the lack of probable cause the agents had no right to get at mr brown or mr taylor and so the fact that they had a person in custody unlawfully and statements resulted from that that was to crime has committed there and that they have probable cause to believe has been committed consequently because the statements were not and he had the right product and it's certainly not a but for test which is sometimes that tempting would because simply just jump to the attenuation analysis but there is the threshold question is it a result of the rest in the home or somewhere else versus outside forces anywhere else and and that this court in the crawford decision has applied the to put five minutes back on reverse order this time and deal first with the fourth amendment with respect to the facts that the district court never explicitly said that there wasn't a ruse employed so there really isn't a finding there's no resolution of the factual dispute and just so we're on the same page with respect to the record the agent testified that he didn't tell the son about the roofs and that's it even our seventy four the son testified that the agent did tell him and that's an e r one nineteen and then the mom did say that  the son told her about the russo facts and that's it e r one twenty six now the district court's ruling where it said it was wayne credibility was only in the context of the notion as to whether or not there was consent it wasn't with respect to whether or not there was consent by way of the roofs so the district court never actually resolve that issue so i think that at a minimum the needs to be a remain and to figure out what the ultimate facts were with respect to the roost and it is true that the evidence that i heard that they didn't have the door opened or certain any legal authority in order to get the door open so i think you're absolutely correct with respect to that now with respect to the issues as to what the remedy is going to be if in fact there is a fourth man in violation that's what the district court never reached and i think that that ought to be developed below so that the whether or not this court's decision i think the latter case that was cited this being one that follows harris where it was based upon the distinction that the officers were legitimately present in the showing that it was plausible that there would be a finding of good moral character and that's at page one fifty six f of the excerpt of record and that order was entered on november twenty sixth one thousand nine hundred sixty that's only three months after that handwritten order of deportation so that's contemporaneous evidence that the ins didn't think he was such a bad guy after all that with respect to whether or not he had the ability and the funds to get himself to mexico if he were offered a in that order when i looked at it during this choose presentation that he was at f t c oakdale louisiana so i'm assuming that means some sort of federal detention camp in oakdale so the likelihood that he was earning more money between his deportation hearing in august and his the finding by the ins and december of one thousand nine hundred six that he had funds to travel from louisiana all the way the same diego is highly unlikely so it's almost certain that he had that amount of money at the time  and finally with respect to the whether or not there was an actual waiver of appeal the language that's used in the form just basically says respondents are actually it's  last responded waived the right to appeal now if i were to come up here and say that the agents didn't provide any miranda warnings all they did was come up to the guy and say do you wave miranda i don't think that anybody would be saying that that was legitimate and so what's lacking from the government's evidence here is any sort of explanation of the right and i'm referring to the language of near the bottom of the page of export of records thirty three the service last responded have waived appeal obama figaro which is a post thirteen twenty six dk so it does apply that the very statute that ms chew was citing to the court determined there has to be an intelligent considered waiver there just simply is absolutely no evidence whatsoever that any explanation was provided to that case on the oral argument calendar certain underwriters versus crav