discretion or still plainer or clearer i think it would be clearer i don't know but i think it would be very clear but i think under court well before this hearing contemplated the parties dispute over the guideline range both versions of the guidelines were set forth in detail is a plea agreement at the beginning of the she cheerfully hearing defense counsel which was set forth in the stipulation of facts and our position is that the word encountered was likely deliberately used in the stipulation of facts as if in contrast to the word found because the word encountered is not a legal confusing when he said that or you ablate he could have been found in two thousand and seventeen after he had already found that there was a stipulation through the guilty plea so at least for me i in other words let's say we hypothetically we agree with you that the defendant that the district court mistakenly found a stipulation in light of what was preceding preceded  some indication that he found that it was either two thousand and eighteen or two thousand and seventy i think that question is did he make sufficient findings about their earliest days i think i understand your question but i think they're all the funniest were there in two thousand and seventeen day to me in terms of the briefing and all of that was a little bit i don't say half an hour because obviously it's a significant part of the facts but it's not consequential to the extent that it doesn't affect the guidelines and i don't think that th he knew the issue keep but the reason that you ruled it out was because he characterized the plea as a judicial admission he didn't rule that out because of any fact finding and that's that's the problem there was no fact finding done after the earliest date and as i just said for an ex post facto violation the fact funny is required i mean this is a constitutional question and so this court case law says that a prior to fo and based on all of the other information that he gave to our forces and on that date our position is that the government could have found him he gave his true name his true name and birth he didn't give him you know yes it is an address where he was living in britain colorado even mexican id card he had it looks like from the documents that he had an f b i number and that seems consistent with his prior convictions which included illegal reentry convictions so you would have obviously have been known to the f b i at some point and there was no finding as to whether he was arrested ringback and booked the fingerprint issue i think was focused on the district court because they were going to seem to be sufficient to determine this question but i don't think that they're necessary i think that the question can be answered through other facts that's that we have here and the problem is that no factual finding was made and so  obvious that the defendant and the government disagree about what exactly the defendant stipulated or admitted to and whether it was proper for the district court to hold him to those admissions but at the end of the day it's the district court's actions here are reviewed for pla air and that's because the defendant didn't object or even respond when the government made these arguments below or in the district court except so when they buy this i agree that we have to review for playing there but if you look at it from the standpoint of if proper objection had been made and that it was and we take that as the error then the question would be was the finding with the district judge made either clearly erroneous was  conclusion could arguably be a legal conclusion although i think perhaps the question of whether something is an admission is maybe of a mixed question so that could be made to novo but i think the alternative the alternate holding that the  think decided the factual dispute here would be reviewed for clear i'm not sure how helpful that was but i would like to actually to start with the rd prong of clean air because i believe that that's fatal to the defendants claim this court knows the rd prong requires the defendant to show a substantial probability that the outcome below would have been different and i think even if we put aside the question of the defendant's guilty plea and his plea agreement all of the evidence in the record we have supports the government's position that ice wasn't notified about the defendant and told me two thousand and seventeen at the very earliest at the same time there's essentially no evidence in the record to support the defendant's position that he and there is some confusing language in the court's decision but i but when he says there are two reasons that i'm denying this objection i think the nd reason represents the courts finding that ice didn't receive any kind of electronic different because even if we accept what the defendant is saying is true and saying this is an error because of the evidence in the record as well as this alternative holdings by the district court saying you know that even putting aside all the admissions i'm going to find two thousand and seventeen and not tw and i think that there's no no way that the outcome could have been different but i do think there is a real question here as to whether this error could even be clear obvious and the reason for that is because looking at the  guilty pleas have to be knowing and voluntary and i think everyone agrees that the guilty plea in the sense that the defendant understood that he was getting his rights trial was knowing and voluntary but i think it's an open question whether factual stipulations or admissions like this have to be knowing involuntary and what i mean there is that i think the question of what it means to be knowing is is a really open one did the defendant understand when he signed the plea agreement that he was agreeing that ice had apprehended him in january rd two thousand and eighteen yes i think in most cases that is what we mean when we say a factual stipulation is knowing the defendant has the competency to understand what he did was it knowing in the sense that th defendant believed or understood that he was conceding this argument about the found and they you know i would say no but the thing is if we look at the th circuit case law there's simply you know neither party has found any decision with some sort of analogous situation where it tells us that that's incorrect and at the same time we have these decisions in rows all of the ray and morrison where this court has essentially said well when a defendant pleads guilty  an indictment that specifies this day and then later tries to challenge that date it doesn't matter because by pleading guilty to an indictment with the state in it that's essentially dispositive of this issue so we can understand you know at the very least w recognizing that perhaps what went on here may have been problematic it's a gray area and we are on the plane air standard review and so would the district court of suicide to recognize that this was problematic without even an objection or any kind of argument from the defendant for me i think that answer has to be no and so the air there can't be clear obvious unless we can find some case that tells us that holding a defendant to the language of the indictment that he pl at the broader context of that statement the fact the court is saying i'm giving two reasons for denying this objection here's reason one and here is reason to that is strong support you know i spoke to trial counsel about it his best guess was that it was an error in the transcript but i do i will have i have some additional evidence to support this idea for the court and i apologize because it wasn't in the brief but later in the sentencing proceedings the district court actually relies on that may two thousand and seventeen date specifically to calculate the defendant's sentence because one of the other objections was was the defendant under a criminal justice sentence at the time he committed this offense and it's page fifteen says so either the notification to ice or the actual physical encounter on january rd twenty eight dollars team together with the admission of the guilt paragraph where he's discussing the twenty seven thousand notification the ice and he says so either that notification only or the actual encounter and twenty thousand convinces me that the defendant's argument has to fail so i really didn't say to either that note he says so either the notification to ice or the actual encounter on january rd twenty eight  so i i think my response to that would be i don't think that was ever discussed whether ice was notified in two thousand and eighteen ice was notified the government's argument has always been understand your concern about you know giving us the benefit of the child not however i do think that the you know ultimately this case even if we accept that there was an error even if we put aside whether the  this alternative holding there is simply no way for the defendant to show that the outcome here would have been different because there is no evidence in the record that ice had any idea about the defendant until may two thousand and seventeen so should we re the district court could make findings on this i would argue that that's unnecessary based on the record however you know if the court disagrees with the government then that would be you know  voluntarily in that case there was some question about whether mr livingston had waived certain constitutional rights and stipulations it's not exactly on point but i think the language is pretty clear that in the th circuit it's plain that a constitutional question and i think that there are some questions about what the district court did our position is that he relied solely on the admission and rejected in the earlier date and as i explained before because this is an