good morning may it please the court marissa conway i'd be happy mr cruz and i'd like to reserve one minute from a bottle of donors in this case mr ball ms cruz entered into a fast track agreement with the government and which he agreed to waive a significant number of his rights he agreed to waive his right to have the case presented to a grand jury he agreed to forego his right to litigate and emotions he agreed to give up all his trial r for his second offense the district court then relied on those erroneous facts again to deny mr cruz two levels for fast track and to impose a sentence at the mid range of the district court's calculated guidelines that was there and we're asking this court to remain and based on that it's now it's abundantly clear from looking at the record and the government can see is this fact mr obama's cruz did not have eleven prior deportations of the didn't his own counsel disputed that he had the prior removals and she agreed i believe that was that you can find it were in the e r but he inquired that she agreed that those prior moves did exist i think which she essentially does which she was playing a little loose gets married changes their last name is the same thing if i call you know a married woman by maiden name i mean is that prejudicial i don't think so let me let me clarify what happened here though he had one official proceeding in two thousand and one time before an immigration judge in which he was ordered deported everything else was essentially a catch and release it was merely an arrest is it any indication in the record that this distinction that you're lying on in any way effect that the sentence that the court somehow misunderstood as i read the record he was using the partition colloquially and so did other people and so that that's going back to judge the she must point i just don't see what difference it made in this particular case there are cases where the distinctions may matter but this doesn't seem to be one of them i think it absolutely is this these are just of which we know absolutely nothing about to go to the border you know ten years ago and said let's apply for a visa and he said no you need to leave are turning around to show up with documents and they said these aren't the proper documents for admission there are no facts in the raw regarding those eleven prior apprehensive when the district judge was looking at the personal characteristics in the history of this particular offender and he was concerned about the fact that this individual had basically been found in the united states illegally eleven times returned weatherby by voluntary  departure as opposed to deportation i don't think makes any difference here the judge seemed to be concerned the sentencing judge seemed to be concerned this man had been coming back and forth over the border for at least eleven times but that's my point is i think we need to have some evidence in the record that showed the circumstances surrounding that underlying rest and also some evidence in the record showing he was told he couldn't come back you can't have a guy someone is a reset of us if you don't know the circumstances surrounding the arrest and there was no information ever didn't have a conviction for illegal transportation of aliens yes that would have been a conviction from ten years ago in which he was a passenger and then he successfully completed his three years of supervised and wouldn't that give him some knowledge that you can't come over here without permission and he did remain out of the country for eight years which is obviously a significant span of time in relation to those prior arrests now the other thing i'd point out to the court was the judge and michelin categorized  defendant is entitled to something in my view the fact it's been eight years but i wouldn't give him the folks four points with this history of deportations and apart immigration felony it incentivizes people to return to the united states when you make the guideline range lower than what manipulate the calculations under the guidelines in order to produce a guideline range that will allow it to impose the sentence it prefers did that happen here in your opinion and if so why was it race solve this rule that a sentencing judge cannot manipulate the calculations to reach a particular guideline result i would say you are correct i did not raise that i'm happy to submit a supplemental pre fund not but i think the other issue in relation to that in terms of what you're saying is the judge's statement there essentially disregards the guidelines it disregards the thirty five fifty three factors and it's premised on the simple belief that you have to get a higher sentence for your second immigration  offense it completely disregards everything and throws it out the window and so the combination of the fact that he had a lever priam preemptions we know nothing about and the belief that you need to receive a greater sentence the second time around regardless  offense and regardless of the thirty five fifty three factors that was there and that was the crux of the entire sentencing proceeding in which the judge reads his determination when you add in the additional six levels for the prior offense essentially that runs another fourteen levels up that's one month less than he did on the underlying offense and ultimately got to the guidelines the junk use those the appropriate sentence because it incentivizes people to return to the u s when you make the kind of language lower than what you got for the last immigration felony which is what the government's offer does here so even though a four is not warranted i go to points and then he goes on to say i'm looking at it under the three five five three factors and this is my analysis make lot of arguments you want the district court didn't prevent the  defendant from doing that it considered it and if it reach its determination what's wrong with saying that well lit applied the wrong standard first in denying the fast track and essentially was relying on prior deportations or the prior not a legitimate consideration but he didn't look at any of the factors under that that are required eligibility for fast track it not once in the entire sentencing hearing acknowledge w here the fact that the district court did not look at any of the criteria for fast track instead applied the thirty five fifty three eight factors in denying fast track you're running out of time but i'll give you a minute for the united states to answer judge simon's question about manipulations guidelines first that was not raised below so that would be waived but also this is not a situation where the court was manipulating the guidelines he was trying to give me some credit some recognition for fastrack a few points rather than four hundred and you say he's not trying to manipulate the guidelines when what he says is i'm not going to accept the four level reduction under fastrack because that would result in a guideline  think is too low because he can if he wants except in say i accept that guideline reduction but i'm going to go above the guidelines based upon this defendant's particular characteristics he could do that and in fact he manipulating the guidelines calculation in order to result in a sentence within guidelines as opposed to then incurring the burden of imposing a sentence above guidelines and having to explain move along quickly without an explanation second is that the court was trying to give again some credit it's not that he's only looking for a certain range it's that the court is recognizing there is some merit to your fast track position just not going to for americans that are in everything's of two illegally several times it's not so much how he was removed that mattered it was that he came back several times and according and said this would be different if this was you maybe the first time or for example if he had previously had status and then tries to return is told no that's that's that's