aside i'd like to sort of move a little bit more to the merits of the government's cross appeal the first the first issue maybe some of us are procedural which is i'm not sure whether the government has adequately preserved the issue for this court to level resulted in the pacific race the fence level under the guidelines that number whatever was thirty five or thirty six or whatever would indicate a base offense level of twenty two now that is in ineluctable resolve and that being the ineluctable result how could that possibly increase his exposure beyond five years when he did not want it increases maximum because i know she said that but that's not the way the statute is read it and let me actually if i can read from this united states versus thomas case which was just decided within the last week or two in that particular case the defendant should have been twenty years imprisonment although his one hundred twenty month sentence was below the statutory maximum the finding that he possessed more than fifty grams of cocaine base exposed him to a maximum sentence of life imprisonment sentencing thomas for american goes up from five to twenty years now your position is well the error is harmless because of guidelines are still below the five years that's what i'm understanding is that you're saying there is really no problem still i understand that by holding them accountable for seventy two all grams of marijuana on increasing statutory maximum but i'm going to find that that area is harmless because the guideline ranges underneath the five years what the government is essentially asking her to do is  the guideline range the defendant faces for example well while not present in this case if there had been a firearm in the car if you had used a minor to facilitate is that coming into the country if for example he had significant criminal history all of these facts could increase sensing guidelines are absolutely clear it is simply not possible for the defendant assuming the court complies offense and guidelines to will face an increased exposure than what he was charged with in the indictment down by the jury beyond a reasonable doubt that simply could not have happened that's trial when the defendant testified he was asked when you drove that car to the border did you know there was marijuana inside is answer was no at that point there's no question that knowledge was of that material issue second issue was were the two incidents re too remote in time they weren't here they were only two and a half months apart is the evidence the fission support a finding that the defendant committed the other act it was here the defendant on march nineteenth two thousand too was a driver the sole occupant and the vehicle in both cases there was marijuana in the vehicle in both cases the marijuana was in a non factory compartment and of amounts of marijuana were virtually identical as well thirty six point one two kilograms of one case thirty four point  that the government respectfully request that this court remanded kate back to the district court so they can have the opportunity to consider the relevant context from the march nineteenth flows and determine at that point free from any worry that it be violating a pr that provision does is it let's say you have got let's say the maximum is is five years or sixteen months and you have a guideline range that goes from fifty seven months to sixty three months under that provision five g one point one they do cap out the guideline range in sixteen months the because you can't go any further but under the statute in this particular case of judgments i'll sell him accountable for more than fifty kilograms he still wanted the statute would have been subjected to to a higher statutory maximum he would have been exposed to it which is the word that the court keeps on using in cases like thomas and others just exposed whether you were actually exposed to it or not so while he may not have been exposed to more than five years under the guidelines still under the statute he would have been exposed to it in addition the shoah to use was a guilty plea case where the defendant the needed the amount of drugs the the relevant conduct that was included in that case he admitted he was involved in all the drugs that the government wanted to include and this particular case and this goes to judge ward last question but the defendant vigorously denied that he should be held accountable for those other drugs the got and when it comes to the judge determine whether or not to include relevant conduct the government