our final case for today is united states against this narrows mexico the government states he was flying on a mexican passport and of course a one way ticket now was he citizens of mexico in which case he actually on the plane in one place and said he was on the plane another place and said you know they caught him at the airport but your honor first of all mr cisneros was not the united states citizen he was flying on the only passport that he owned was he legally in the united states i don't know the answer to that question your honor she'll tell you why i'm interested in that following up a little on which i drove there was saying we have this application note about avoiding or fleeing from arrest is not enough to put you over the line for obstruction but there are two things even if he was legally in the united states if he was a mexican passport holder citizen of mexico and he gets back to mexico he has you have to be returned to the united states he can stay there as long as he wants to because the us mexico extradition treaty allows each country to exercise discretion over extradition requests of its own nationals so mexico would have to extradite a guatemalan to the united states but they don't have to extradite a mexican citizen any more than we have to extradite an american citizen to mexico so going to the country of his residence is a much more profound level of sling it's actually moving yourself entirely outside the reach of the american authorities who are some guy who just runs down the street and jumps over a few fences and is fleeing from arrest isn't nothing like that situation so i think fleeing to another country certainly in general ought to count as obstruction and of course in his case attempting to flee to another country well your other even worse of course if you're an illegal because he doesn't even have any right to come back to the united states in that instance i believe that mr cisneros situation is that he is one of these unfortunate souls caught in the middle who has been in the united states since he was a child has had his status regularized completely or at all i don't that was my understanding and so that's that's why if he once he gets off the airplane in mexico city or wherever it is he was flying trying to fly to he can't even come back to the united states and he does so under certain he leaves under circumstances that it seems to me the district court was well within bounds to consider fleeing from imminent arrest their whole conversation is obviously pointing that way or the district judge could so infer well your honor i think there are some countervailing factors that have to be added into the mix here if if it were exactly as you said and that he was purely an illegal resident and he was attempting to go back to his home and all of that i would agree with you but that's not the those are not the best for mr cisneros because not only did he consider this his film but he was married he is married to a legal resident here he has a child who was born here his mother and immediate family are also here in the united states so i understand that but you probably know we see a never ending flow of cases where people are in exactly his position and if he doesn't himself have to right the right to come back here you know these are of some type he can't do it so whether he knows anybody in mexico or not is sort of beside the point he's not even allowed to come back without the permission of the attorney general well your honor because the record is not clear on that point whether he was a permanent resident or whether he was in process or something of that nature and if that's the turning point of your argument i'd be happy to investigate and supplement you know i see i don't think it makes any difference because even if he's a legal resident here if he holds a mexican passport they don't have to extradite him if he's illegal there's just sort of an extra reason why he doesn't have to come back well the point of the matter with why  went back to mexico or wanted to or try to go well your honor i think i would take him as it is for what had happened to him was a series of events over two days that that were very difficult first of all he is detained but not arrested and the agents make it very clear to him that they don't want to have to charge him and they want him to cooperate which he agrees to do but they lied to him and they tell him that their county officials and they give him a false police report so that he can have some evidence for the people that he he might owe the drug the money for the drug two that he'd been legitimately arrested arrested for marijuana which had nothing to do with anything in the case so then he does cooperate with them they tell him to come back to this meeting place on the next day at which point they say oh no by the way we're not county officials were federal officials and we've been investigating you and all your friends and associates for the past year and we want you to tell us you know more than what you told us yesterday which he does but not only that we want you to proactively cooperate meaning wear a wire against all of these people that you associate with now that brings it to a whole different level because you know telling us telling the police about what he's doing or telling even about what the rest are doing isn't a problem for him as long as nobody knows what he's done but taking the risk of cooperating against somebody when you're involved with individuals who will threaten your life you know so supposed close he'd say you were in light of what they just told him he wasn't going to cooperate w said he doesn't know we've told him exactly what they want from him if he says no they arrest him as you said so he goes to mexico to avoid being arrested well he tries to go to mexico and what country that tries to  you know they what he said to them was not what he said to them was this is a very serious thing you're asking me to do i need an opportunity to think about it and he has all of his family and everything about his life well they're not giving him the opportunity to think about it so he has to make a spur of the moment decision so he decides to flip none of that they did agree to give him an opportunity to think about it well they fled anyway and the next day he said he had to get his mind clear wanted to think about it in a place where he wasn't around all of the people who know that's not true you know that's too facile you don't have to go to mexico if you want to be able to think quietly with me and surrounded by people  well this is the circumstances of his attempted flight were that of a spur of the moment decision because he took very few things he took only the money with him that they had just given back to him that was eight hundred dollars fried rice which is not going to do you a whole lot of good in mexico for very long i mean certainly would do you longer than it would here but the point of the matter is it's not that the sort of case or does not rise to the level as in other cases in this district this sort of this idea that spend said out of fly clus because he didn't take any of those prior contemplative steps that all of these other individuals did in terms of changing identity using has meant is a finding of fact by the district judge and the district judge here comes to the conclusion based on this sequence that we've all been talking about that he means to get away he's doing it intentionally he's doing it to avoid arrest with the purpose of avoiding arrest and he's removing himself very significantly from the reach of u s law enforcement and so it seems to me entirely rational for the district judge to draw the conclusion that this was obstruction as three c uses the term well three c the application note says flight to avoid arrest is not obstruction and about but i'm saying that there's flight  flight there's the guy who's running down the street flight and there's the person who goes to the moon slight and he's closer to the moon than he is to running down the street and it's only most of the time anyways we've emphasized in other cases typically typically where you have firms the obstruction it's been when there's been so when the person is actually left when the person has taken concrete steps as in the case of order to change his identity move his family sell assets all that sort of thing you haven't found in a case like this where it's a spur of the moment decision and it's not achieved because the other temps are covered you're not saying the temps are kind i'm not saying that attempts are not covered but this is not the sort of a case that rises to the level of you and i'm sorry about you know the time lapse is if the accord is had discovered him before the flight took off surely he would concede that his departure and he would have to pardon did with the one way ticket it would have significantly impeded the investigation and the prosecution and don't we have to look at bad well judge i don't think we should be sentencing people to six to eight years of additional prison based on something that didn't actually happen and i don't agree that that that would have happened because the d a is an a t f and all  very active presence president the president says in mexico city he was traveling under his own name it would have been a fairly easy thing for him to have been apprehended but that aside if you are prosecuted for impeding  criminal investigation the statute of limitations is five years i mean the maximum penalty is five years and in this case he was given an extra eighty months for something that didn't in fact impede any investigation the investigation was done it didn't impede his prosecution because they grabbed him quite quickly and so that the punishment is excessive both in comparison to what would have happened to him if he had been prosecuted for it and in comparison to what the application no but which is specifically why flights to avoid arrest or attempts to avoid arrest are not given the obstruction so i think that either way you look at it what he attempted background investigation he was found to not have citizenship in the united states to have no status here i do not know what his wife's status is in the united states however when he changed his plea when he entered his blind plea he was advised that he would be deported from the united states there was discussion at a sentencing hearing on page twenty of the sentencing transcript about the fact that he had planned to return to mexico given his lack of legal status that his family and his children would join him there and that milwaukee to mexico under the balance of factors here if it was a one way ticket to an attempt to evade prosecution i don't think it would have i do think it's significant however that he was going to return to mexico on a one way ticket not a vacation he had a substantial amount of cash with him and i believe it was two thousand and fifty six dollars he had a very small amount of a longings with him indicating he left in a pretty substantial hurry without his family members accompanying him it came a day after he was to by federal agents about the scope of the federal investigation as well as the pending arrest that they were anticipating and they he was told as the defendant agrees and represents in his own sentencing memo that was filed by the district court that he understood that he was in lots of trouble he was going to be indicted federally and he has his choice was to walk free or not and given given those facts and the specific circumstances of his attempt to depart the united states it was not clear error for the district court to find that that was a will kill attempt to leave the united states and it wasn't just panicked flight it it does not matter that the agents were good enough investigators that they managed to show up at the airport and stop him from from boarding that flight it doesn't matter that there was not an impact or substantial impact on the prosecution this court repeatedly has said that it waiting area you know some of the briefing says on the plane some of the it says in the airport where was it i believe he was on the jetway so it's the pathway between the gate at the airport and on the airplane itself he was waiting to board the plane on that jetway so you've already cleared everything by the time you're on the jetway he would just leered security you would have presented a boarding pass that one way ticket he was about to board that plane when the agents entered the jetway and arrested him now we've criticized in the past the difference between panicked or you know if you will flight and more deliberate flight because people often do things you know with with panic but they mean to do it anyways so what what is the distinction between the type of flight that notwithstanding application no five can count and the type of flight that falls within application five i think this court has distinguish it on the basis of deliberateness whether there is a plan in place that indicates that they understand that they have the possibility of charges forthcoming and they are actually trying to remove themselves from the jurisdiction from the ability for the government to to to prosecute them the court talks about is focusing on the conduct one of them has a substantial ability to hinder law enforcement and that's the flight that that is deliberate and calculated as opposed to an instinctive flight where if you know the police are giving chase but ultimately typically are able to catch that individual and that's reflected in in what happened in the laundromat in this case the defendant saw the police he had this instinctive reaction and through his drugs he turned back and went in back inside of the laundromat and the police gave chase and took him under apprehension but that's substantially different as a factual matter in terms of its potential to interfere with law enforcement from the time deliberate calculated offense that we're we're talking  as in going on a high speed chase and second and secondly i did not address the fact that even in view of this under this court's case law the district court erred in not giving him acceptance of responsibility even though this even had occurred so we would ask that the district court's decision be overturned all right thank you very much thanks full council will take the case under advisement the court will be in recess