speedy trial act has to aspects to it one of the trials must begin within seventy days but no more but the defendant has thirty days from the time that he first appears to consider a case and prepares defenses and that was not done in this case that the shortly before the trial was to begin the government superseded or found a new and i'm sorry when you say that was not done what was not done when you think that was not  means that now what it said well his first appearance was ten months previous that's what i'm getting at yes but his first appearance on the charge that he went to trial and you have a case that the parents me first the parents from the most recent mended indictment yes united states versus harris one thousand nine hundred four it talks about the indictment on which the defendant ultimately goes to trial that was the second and i went and he was arraigned on the very eve of trial and there's no nothing in the record that shows that he had any notice or time to prepare the government did that of course to eliminate his possible defense of constant surveillance because the agent was watching this particular crossing point presumably least i'm sure mr sanchez would have said that the agent had him under constant supervision or was constant surveillance and therefore he did not legally or in the legal sense did not answer and could not have been found in the united states government cut away his defense by superseding and changing the charge to attempt which required which of course has nothing to do with with constant observation and added to new elements which the government had to prove which were not in the indictment namely a mental state period in which to consider his new new charge against him in this case there is prejudice i would submit that prejudice is not necessary but here the defendant had a plea offer right up to the day before trial up to the final pretrial to go to trial within seventy days of his first appearance but no no earlier than thirty days and of course here he had just basically one day just over night which was not sufficient time to consider the plea offer wh had not sufficient time to discuss the matter with his attorney and the record just doesn't show at what point in time he actually found out about this indictment but it couldn't have been very much time because it was basically within a few days prior to the question about whether someone is observed all the time or not like a border crossing right there on the border at the fans they will eliminate they will supersede and charge him with the attempt as opposed to the being found in or the entry so i can't speak for the government but yes there was a motion to dismiss the indictment page five of my excerpt motion dismissed the indictment for failure to allege an essential element but there was not a request for a on which the defendant first appears through counsel and we submit that what they stand the harris case what that means is they're talking about his first appearance on the new charge that's the only significant way to interpret this the statute  just briefly i'd also like to mention the sentencing issue judge campbell first of all the defendant did object on the record to paragraph twenty four he said that the petty theft offense was not his offense it was some other guy who did this judge is entitled to due process that's clear on the part of the sentencing judge maybe he misspoke maybe he didn't i know that we do have a lot of these thirteen twenty six cases it's very easy to confuse these cases they're very similar but he just the case should be remanded for we sentencing if nothing else based upon that misperception of the record and i'd like to just reserve a few minutes for rebuttal from the government and you'll have a chance to it please the court my name is emory hurley appearing on behalf of the united states your honors the harris case that is mentioned by mr baggott has been abrogated by r the supreme court and carson bloom in this circuit the clear language of the statute says that the thirty day trial prep clock begins with first appearance through and we should say first appearance through trial counsel as opposed to counsel which is appearing for a limited purpose touches a detention hearing or their first appearance on the indictment whichever comes later in this case the appearance of actual trial counsel and arraignment on the indictment occurred on the same day and that was some nine or ten months prior to the day that the case went to trial your honor as the defendant was originally arrested on a complaint which alleged both attempt and entered are found in he was then indicted originally for entry or found in and the superseding indictment then went back to the attempted entry into the united states his trial counsel had been on the case had received discovery and had been in a position to begin trial prep for far longer than thirty days additionally the clear language in row us contrasts and cars of them says that the superseding indictment does not restart the thirty day trial clock just as it doesn't restart the seventy day trial clock if in course of them the defendant was charged in an eight  counts one through seven of that indictment were dismissed for failure to allege a specific victim count stood the defendant demanded immediate trial on the eighth count which remained on the indictment the government then superseded corrected the problems that were perceived in counts one through seven by adding victim names and then the superseding indictment also contained a count eight which was identical to the count eight that was in the original indictment then the defendant some period of time passed and the government ran past its original seventy day clock or actually the only seventy day clock eighth count of the superseding indictment was then dismissed for speedy trial violations but the defendant went to trial on counts one through seven which were the crew versions of those counts that were in the superseding indictment  held that did not restart the seventy day trial also certainly doesn't restart the thirty day trial prep clock if it were to restart if the circumstances that we have in the case at bar we started the seventy day trial hawk and the trial prep clock because the two were together then what the government could have done is superceded with an indictment which ad of attempted reentry and then arraigned him on the new indictment and then before trial dismissed very next day dismiss the entered or found in that makes no sense it would not be fair frankly for the government to be able to restart its seventy day trial clock simply by filing a superseding indictment it does not change the amount of time that the defendant had to prepare it doesn't change the trial clock that the government has to adhere to the superseding indictment did absolutely nothing to restart those two clocks the defendant did not make any motion for additional time he did not ask for a continuance or recess to address the superseding indictment he simply went to trial but clearly not the issue that the defendant was concerned with the only issue the defend it was concern with prior to beginning this trial was the issue of trying to preserve his argument should all interest torres be overturned sometime in the near future which it hasn't as to the judge's misstatement the judge simply misspoke the judges the trial judge a statement with regard to the paragraph twenty four prior yes the judge said it was it was in the factual basis of the plea ramey what he should have said was it was a prior that was not contested paragraph twenty two i should say is the prior that was not contested by the defense the paragraph twenty three was linked to the defendant by a positive fingerprint match twenty two and twenty three were on the same f b i record as paragraph twenty four paragraph twenty four was thus found by the judge to belong to the defendant but it is clear from reading the record as a whole that the judge could not possibly have thought that there was a playground in this case he was listening to argument about whether paragraphs twenty three twenty four or twenty two belong to the defendant when he has actual as the judge was determining whether the offense in paragraph twenty four has been adequately shown and this is the sentencing record transcript at page fifteen it's the excerpt of record at page forty seven and that's the lower half of the page but the judge says i base my conclusion on the fact that the petty theft offense which is paragraph twenty four appears on an f b i rap sheet that is based on fingerprint matches with the individual who committed the offense in paragraph twenty four upon the fact that the same f b i rap sheet included includes the delivery of a controlled substance offense in paragraph twenty two which the defendant has admitted occurred in the factual basis of the plea agreement he should have said that he should have said the defendant never contested paragraph twenty two which it's clear from the record that he didn't and the fact that the same rap sheet includes the paragraph twenty three offense for possession of a narcotic controlled substance which has been matched to the defendant by fingerprint analysis is a simple misstatement viewing the record as a whole clear that the district judge didn't apply the clear and convincing standard that rather appears to applied a preponderance standard your honor from our perspective it isn't as we noted in a footnote the government persists in a belief that the preponderance standard is appropriate after booker in this case and we've cited cases in support of this proposition although the judge may have misspoken the record itself your honor presents clear and convincing evidence that those three priors are attributable to the defendant the clinic the judge allowed the wrong standard if proper burden of proof standard in this circumstance because of increased concerns that was the state was  clear and convincing and the judge didn't apply that rather applied to ponder on what standard do we then review do we review of the underlying facts and up hold only if the district judge would have know the judge would have been compelled to find my reading your honor is that the judge could have found that the as much as long as but that's the standard usually applied when the judge did find but if the judge didn't mind i don't think we can uphold his decision clear and convincing standard if he didn't find it himself without a rematch and lastly confines of the evidence would have compelled him to do so because it wouldn't compel him but he could have found one way or the other think we have to ask him is not right your hon your honor i think what i'm what i mean to be telling this court is that so long as clear and convincing is supported by the record then the standard has been met and it has been met if the district judge has found that it is met by that standard my my alternative argument as well your honor would be that in on this record a district judge would be compelled to find by clear and convincing evidence because there is no evidence to the contrary his finger he concedes twenty two twenty three was match by fingerprints and twenty four paragraphs and each time i say that i mean to paragraph paragraph twenty four was on the same f b i thing or print based record as twenty two which was conceded in twenty three which is matched by a positive print i would suggest that well i would argue that so long as the record supports clear and convincing it need not be ran remitted i would also argue that this record surely would compel the district judge to have found by clear and convincing that those three priors are attributable to this defendant your honor if the court has no other questions for me i've run out of things to say and would simply ask that the conviction and sentence be affirm speedy trial argument i wish to make our position clear that we believe the statute says that if there is a new charge a different charge that both clocks a restart of the thirty and the seventy days the short clock and the long clock both and it's a that section c applies and what superseding is basically otherwise dropping the first charge and substituting a second distinct charge for the first charge that's why the clock starts its  want together because we believe that when the charge is different that both clocks start over again the east side a case of rojas contrary in the supreme court did not change the charge and change the date of the prior deportation  not an element of this offense and to change it by ten days from december seventh the seventeenth or something like that but it didn't make any substantive change this is a substantive change and we believe the issue is whether attempt is a separate and distinct offense from enter and found or whether it is just a different means of committing the same crime i've submitted in the brief various comments and rulings by this court that says in fact they are separate and distinct offenses and that would restart both of those cox so we submit that based upon the speedy trial act would what happened here is there was a new distinct separate charge against the defendant and he did not have this mandatory thirty day period to prepare and decide what he wanted to do about it