as the pre sentence report indicates mr foley has appeared in martinez was arrested on september fifth two thousand and four he's been in custody this entire time so september first two thousand and six he had already served a two year maximum as of june twenty second it's been pending we're waiting for justice and to come out in the morality scared of cases but the reason is is the reasoning is the same that it was an illegal names so but both of those sticky issues can be avoided in this case both the moralities carol which is on bach and the vitalogy to the aiding and abetting can both be avoided because august thirty first the court validly removed from the united states after his two seventy three point five what he admitted in front of the magistrate judge and it's clear from that transcript that we preserve all issues including keeping to increase the statutory maximum from two years to in this case twenty years the government has to prove that subsequent to his aggravated felony he was legally removed from the united states and the date of that removal and the fact of that removal is have to be either found by a jury or admitted in the court and he never even hinted that there was a legal removal past the date of his has aggravated the date of the prior deportation the practical implication is that the government will require defendants to admit that they were removed legally removed from the country after their aggravated felony in order to take advantage of a plea agreement that's adventured to them so what because the two other issues really can't be discussed here until we have the provide extra copy to the clerk and he'll distribute them to  supplemental excerpt of record page eleven that is the judgment but here he is basically admitting that he was removed on the same day that he heard that conviction on this fact alone this court can find that than because you're saying well then the sentencing judge can draw inferences the real question then is did he admit here in the plea the fact that we need to sustain i mean  know we bother to put the special allegation he knocks it out and now incensing he's think oh well you know you didn't find the actual date well that's what we originally there on the wanted to do and i think what happened was that after booker came out the government believe that which the jury was not instructed and quote such that we must quote inquire whether it was clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the air and these types of case minori which once has internal quotation marks that the defendant although he objected to made legal objections based on this kind of issue he never actually objected to the statement in the p s or that he was removed several times after this conviction and it's supplemental removal after his aggravated felony quite the contrary and i take exception to the argument that it wasn't exactly two there was it that's what this case was all about was objecting to whether or not he was removed  admitted that he had been deported that doesn't resolve the issue before you today speaking to mr alden the prosecutor the statute required for this to be an aggravated felony or for him to be punished for an aggravated felony that he must if it committed the underlying  important in this case the government has to prove beyond reasonable doubt that he was removed after that date not on or about not before after and he did not admit and nor did the jury find that he was removed after may twenty first two thousand two so that was in dispute whether or not he was removed and the conviction was entered because he didn't think the two thousand for reinstatement and removal are valid in light of morales the scared off the court and looked at the luna case and based on luna finds that the court can focus on the physical removal itself and mr ray he talks about how physical removal is fine even if it's illegal that argument flies in the face of the united states supreme court case mendoza lopez with the supreme court sad switch if a play talking about thirteen twenty six and saying that there is a due process analysis that has to go into this before a criminal court can greatly increase someone's sentence based on administrative proceeding that administrative proceeding has to have due process and then that's when we start getting into the morass of scared zero issue whether or not