say locals with two counts of attempted attempted entry after and also found an aspect of the thirteen twenty six after deportation without having any kind three portion at the rule eleven proceedings the magistrate judge question whether he can even be convicted of both attempted entry and found and eight thirteen twenty six even the defense magistrate with the bat background of the confusion about that it leaves the scene charge there was a comment at the beginning that they believed it was the same charge and we didn't go to the scene charged that throws confusion  for you to be found guilty of count two and third there was actually a factual basis missing as to count to testify around and there was a mr say a lot as was found he thought he was a new mom but it turns out he was actually in the near border of san louis that's not even an element of the of the crime that's really a defense and so i don't think you know a rule of law no police call queer i think the government has to dispel every possible defense i particular case the fact that the state is there put tracks found in the desert just east about five and a half miles east of st louis border we do not know if he was under surveillance we could not raise the seriously affect the integrity the public reputation or the fairness of the proceedings that took place below the magistrate judge read each of the two counts to the defendant individually  and reading those two counts that's informed the defendant of the elements of those counts and then went back and explained that the government would have to prove the following things and yes the magistrate judge did say that you attempted to enter or  were found in the united states but that was after the magistrate judge had already explained that he was pleading guilty to two different counts and explain the elements of those two counts separately before doing that during the course of the  talking about the found in he committed a substantial step and that's the lay out small the novel decision of this court and the act of crossing the borders of the substantial step toward the completion of the offense the defendant showed that he had a specific intent to enter without permission a number of different ways number one he crossed through the desert not through a port of entry number two he did not apply for consent prior to coming across and number three he lied about his identity when he was arrested he said that he was someone else all of those things show that he had the specific intent to enter without permission and his admission that he did not have to apply for express consent also shows that he did not obtain it as far as being found in the united states the evidence in the case showed that agents found footprints in the desert near the border and they follow them to the defendant this court's decisions in cassiano star city and which you mentioned judge wrong person as well as this court's decision in  numbers that out of both show that agents following footprints does not constitute official restraint it's not continuous surveillance and therefore the defendant is not under a threshold restraint and the government need not come forward with any offense to the defendant they are given discovery in these cases private answering a guilty plea and the defendant had the opportunity to review the evidence and review the charge with his lawyer before coming in if there was an issue of official restraint that could have been covered but there