this court's recent case in colvin sand of all the timing of a person's deportation is a necessary element that must be played in proven or that case there were two different possible deportations a jury could have conviction that the judge found to raise the statutory maximum however the deportation the timing of the deportation was not alleged in the indictment and i think one of my main argument is that there's the statutory maximum of twenty four months because that was all that was alleged in the indictment and anything that happened at trial whatever was proven at trial nonetheless there's a twenty four month statutory maximum because there are structural that have to be proven under subdivision d of thirteen twenty six to increase a person staff for the maximum free legal reaction from two to either ten or twenty years depending on the nature of the conviction those two things are a prior conviction which is controlled by all  this and this circuit is obviously recognized the problem for stores remains good law from shapard although i do raise that issue as well the second thing that must be proven is the timing of the deportation without the timing of the deportation no why can't that as a matter of sentencing fact finding look at the date of the prior conviction he's got the date of the illegal reentry charged in the indictment see that the  constitutional doubt that's not the factual situation in this case the date of the deportation as opposed to a deportation the date of the deportation is not alleged in the indictment against mr flores rodriguez and that is what i'm basing my to consider the prior conviction you have to necessarily determine that it was prior to the date of the current sent the date of the current federal conviction on which the defendant is about to be following your argument it seems to me that this is no different from determining that the defendant had previously suffered a conviction otherwise it can't be considered i my question and maybe i'm not articulating it very well likely me parent in a determination that a defendant has suffered a prior conviction is a determination by the sentencing corps that the conviction was suffered prior to the conviction for this offense for which i'm about to sentence the defendant how is that any different from making a determination that the deportation for which the jury has now convicted the defendant must have occurred on a particular day the difference is because under kogan sound of all that the timing of the deportation does not fall we'll fall within that narrow section to the rule of a creditor that applies to convictions and facts surrounding convictions undercoating stand of all the timing of a deportation doesn't that i believe i understand the court's question maybe i don't because i keep keep reverting back to i think i'm just trying to rehash what i said before maybe i didn't mean to get too hung up on that but maybe if you've got other points to cover that actually is the major point i didn't want to address i think until covina sound of all squarely addressed what the timing of the deportation has when judges made factual findings about prior convictions i mean as a as a logical matter a district judge always had a reference out against the timing of the deportation or the word prior becomes meaningless after covering sand of all however the issue is how that second determination is made or that second piece of the puzzle is made to it is the fact that's essential the timing of the deportation is an essential fact whether it be an element or sends in fact or it's an essential fact to increase the statutory maximum from two years under subdivision a tithe or ten or twenty years under subdivision v the sequence so to my mind see how there's a panel decision after lopez they didn't recognize lopez's as being in direct conflict in cody and i think lopez has to be read in conjunction with cokie and if possible and i believe that there's a principled way to do conviction the argument that's what the language is every time the argument is raised it's always the two in conjunction because the timing and then then in lopez and if i could read the temporal sequence of conviction and removal as distinct from the facts of the conviction itself be proved to a jury beyond a reasonable doubt is foreclosed by lopez even lopez uses the sequence the conviction and i believe that's what the lopez panel was addressing it's the only way to read that in harmony with what coding is found of all squarely address the case that came before if the argument is that the timing of the conviction and the timing of the deportation conviction it's only the timing of the deportation that's the one issue that colgan squarely addressed that's the difference between the two cases and a final point on that because i was trying to figure out how to reconcile these cases it's interesting jury the date of his deportation or his prior conviction i frankly am a little confused now which which it was complained about i think i would respectfully suggest that there was a kind of shotgun or scatter shot below i would respectfully suggest that i'm frankly not certain because it's very difficult in my opinion to wade through all the various kinds of grounds that are raised in the opponent's opening brief on this point but my second point in this and this court cases it's a with another case with more extensive briefing and with a briefing has already that that issue has been raised from the very beginning and i don't think that's been the case here so what you're saying is that the only real issue is whether of print he requires it to be proved in the indictment because clearly the jury had the facts before it as to when the deportation occurred and when the reentry right there was only one deportation that was the august that was that his criminal convictions preceded that deportation so why does the temporal sequence not have to be played in the indictment well i would respect respectfully suggest that nowhere has the court said that prior that this is something he was deported on expats august twenty fifth two thousand and three and the court can use the jury's findings on the date of the deportation and the date of the conviction those two days are fixed and and  so i don't screw that you're all right i thought i guess what i'm really asking is is this any different from drug quantity i don't believe well i can't i can't promise i can answer that question i don't really have an opinion on that question i would suggest that the morning in the more limited context of the thirteen twenty six cases and in place of deportation dates a prior conviction we've got a jury fixing the date of the pri deportation proved beyond a reasonable doubt and we've got a really no dispute about the date of the and a jury and a court finding the date of the conviction wonky the people  at ation follows the conviction really isn't anything i guess the argument would be whether or not if there is a variance here between what the united alleges and what the jury found well where's the harm to the defendant because i think that this is the direction that this whole universe of litigation is going to require the government to fix a date in the in the indictment of the deportation so that then there can be more problems later on this really you know it really didn't which was for someone under twenty one which by this time he wasn't any more correct but you're saying that even apart from that it right that he was going to get in that way right now what about that other two the so to speak the operative date he would he would be up for a visa but remember that was granted under the under the other oscars that is that he was t i don't know this for sure but i suspect you have to read the file you see i'm saying it's not it's not like a i don't i don't believe he gets the benefit of his previous attempts as an l t r song but i would suggest that that by itself wouldn't be sufficient because what would the immigration judge do just say well i think you're eligible for too t i'm just suggesting and response to the locals question that i don't think it can be right that the judge should just say well you might be eligible for people of age belief without and then i'm going to continue this matter so w right i had a panic attack last night because i thought that you weren't the only one to find that sense out of all these kids that the latest case that's consolidates where they said that's a good name for proposition and i think this panel can say that's the proposition all three cases we're addressing which is separate from what covina dressed in terms of the timing of the deportation if the panel disagrees with that i don't think it's something the panel can just push exception to a printer is not only the fact of a crime or conviction but also the date of a prior conviction and if the judge can properly find without a jury finding that there was a prior conviction the judge can also find the date of that and then since the jury necessarily found the date of the party protection the judge's finding of the fact and date of the prior criminal conviction is passes muster under i have to disagree with the court standard is posible is because if you're advised potential relief and you live in this country for a long time you might say you know what maybe i'm going to impose on my family get a lawyer and figure out if i do have a shot i'm not saying i never said the immigration judge has to tell someone marry your girlfriend have your mom do that's what i say but you're writing out the immediately available requirement i don't think so and i'm certainly not trying to well i know you're not but it's a two step process first you have to apply or get married i guess in this case and then file and i won thirty application form and then it has to be granted so that it is a mediately available appeal there was bound to be a due process violation so it was remanded back to immigration proceedings