happened afterwards can and do something that happened before that was sufficient on its face to waive this right the answer that your honor is that a miranda waiver is not good for all time in all places just because you've signed it once i think the case was pretty clear that you can revoke your miranda waiver in other words if they would like to talk to you guys and then maybe they bring up a new issue maybe they say well what about this murder you committed you thought you were in for a let me back up the warnings need to be unequivocal and they need to be clear miranda they were right anyway just miranda rights except later they said well here's the immigration stuff and he said unto them  miranda because it made the defendant think that they were talking about immigration issues civil immigration issues which have different rights and different responsibilities and different standards in terms of what the government has to do so by giving him a warning this does nothing about you  right to an attorney giving him a warning that says you need to talk to us now otherwise we're not going to consider your any claim you may have to an immigration plaintiff and that they're doing what they've reportedly done at the beginning so i think you  the response is that you can undermine the miranda warning by your conduct later in the game so that after they've given this warning which may be clear in what you signed the fact is that they go and they tell him well it looks like you really don't have all these rights at least that's my argument because they're giving him an immigration warning that doesn't have the same language and i think that's in one cruise a very apt on that point and it really outlines the danger that a custodial interrogation out is number one the right to counsel in other words it's there's no mention that you have a right to appointed counsel it doesn't say you don't have a right to counsel but miranda tell me how again the disparity i think that leads to confusion in the mind of the defendant also i think that the coercive language is is perhaps in the positive what is in there in other words it says this may be your only opportunity to present information to this immigration official it will be used in this administrative or other industry to proceedings and an administrative proceeding is really a determination by the justice department as to or that executive branch as to you know whether you get immigration benefits it says nothing about any criminal prosecution and this particular officer knew that this was going to be a criminal prosecution this is not an inquiry as to well maybe this individual has some kind of basis to come united states no she was he was brought to her because she was going to interrogate him and later use recent in the defendant's mind and this case it was just the reverse so that the more recent warning in the defense mind was the inconsistent immigration warning if you want to address the enhanced moment which does seem to be a problematic issue very which was the burglary of the courthouse and i think that there's two very important things to note well as a general matter i think that my argument is that the record is insufficient to support factually of the terminations under the modified  and california law clearly discusses that uninhabited well inhabited underprepared for five nights is currently used for dwelling purposes whether occupied or not so it would cover the vacation house that would cover the  owners aren't there they've only you know they've signed the lease but they haven't moved in yet and that would would be inhabited it would be inhabited in this case though the charge was uninhabited which means it's not being used for dwelling purposes and the sixteen level has but requires that it be it welling secondly the complaint says the house well you might think a house is a house but not apparently under california state law and that's what the supplemental authority that i submitted just now discusses so under california law apparently the definition of house is very proud of what include a structure with four walls and a roof that shelters property or people or animals so you can't tell anything that's kind of neutral i guess true and there's no there was not reason if you're wrong i mean isn't it possible that an uninhabited house could equate to the california version of occupied house but we don't know that i don't think so we don't wouldn't wouldn't and the combination of these three things meaning the second degree burglary which appears not to comply with the issue i mean that that seems to be what he's convicted of in the minute order that plus the abstract judgement when that be enough to tip over the whole use of that conviction even if you were wrong about more punishment because there's the more risk of danger and more risk the all the crime of violence type language and that's why we're out of that so i think clearly the sixteen level has which should not apply i'd like to reserve a little bit for rebuttal directly record support for the proposition your client was confused by the ministry wording when you want to that's what the court and the district court relied on that there was no evidence that he was confused i think that that's not our burden i think the government has to clear it up when they give up to him consistent warning  he was of low intelligence and had a learning disability in trouble in school but that voluntarily and then he was advised of the immigration rights or the rights pursuant to the immigration proceeding and from there the transcript was prepared after the transcript was prepared it was gone over page for page with the defendant he  at the bottom that it was that were it and he signed it at the end acknowledging that it was accurate and true under these facts the district court did not clearly err in finding that the defendant had knowingly and voluntarily waived his miranda rights or those rights with regard to those findings it was clearly stated in the record page twenty and twenty one and further in the district court's title holding it page forty three that the defendant knowingly voluntarily and intelligently waive those rights and never once did he ask questions pertaining to those rights expressed any uncertainty with regard to them and therefore they were voluntarily waived given the the totality of the circumstances in addition to the defendant's character and background here we have someone who has three prior juvenile convictions seven prior adult convictions for those or mystery misdemeanors three of those being felonies he's give n statements on two prior occasions he was not on equated with the criminal justice system he knew what his rights were he voluntarily way of those and turning to the arguments i guess the defense counsel sort of advocating a double procedure in that you're advised of your miranda rights you make a statement then you get your immigration warnings and then you make a statement that procedure would be redundant obviously because the rights that were given here are actually they complement each other and they provide additional safeguards but in addition to that it's not practical in the just verizon where we literally have hundreds of thousands of immigration related arrests the year it would become necessary the three areas that are complained of the first deals with the defendant and his right to counsel and as this court has already indicated he is advised his right to have an attorney present during the miranda warnings that's not undone there is nothing inherently contradictory during the right to contains none of that and we look at the transcript that the defendant initial that each page and signed at the end and never once has he indicated what about my right to an attorney he never asked a question with regard to that i think it's clear that  expresses no confusion with regard to those rights the administrative warning here says this can be used against you here or in any event a straight proceeding it doesn't say this can only be used against you in a straight a proceeding and no one is ever going to use that against you in a criminal proceeding there is nothing inherently contradictory in that and again we review the transcript of the defendant statement he never states where in this i have confusion about that the last area deals with the defendant's right to remain silent  destructive device convictions for now we don't need to reach it because based on the burglary conviction or own that justifies a sixteen level han information specifically says that it is that the defendant entered an uninhabited house specifically stated it was a house to house there's a dwelling with regard to that and if you're giving giving a house it's common mean it's a building where people live and just because when the defendant entered that house he found that he was all alone it doesn't make that house not a home and essentially your honor our point is  regard to that that's why i filed the twenty each a letter earlier in the week that was never raised below it was never contested whether this was a felony or misdemeanor the first time this is even hinted at and i stress the word hinted at is in defense reply brief when he says quote it may have been a misdemeanor that's the first time we hear any mention of that the defendant was on notice that this was a felony not only from at one time of the record the information where it states a felony not only from the judgment of that record which is contained acting now i'm not trying to interpret a vacuum or on a modified approach and the burglary conviction by having it be a second degree it's not which is one third of the mid level of the guidelines of the range which would be twenty four months mid level of twenty four months meaning that the defendants exposure for that conviction then was forty eight months four years you don't go to jail for four years  that not only was it indicated in that abstract that it was one third of the mid level range which would be the eight months but also it's indicated in the information which the defendant pled guilty and that was also indicate in the pre sentence report where it indicated where it was specifically delineated and where i think we're missing each other on what i'm talking about trying to figure out whether i'm in my fight can approach this actually  issue i mean the fact remains that the information delineated it as a house it's the california dichotomy from what my my understanding of it is is that it's uninhabited it could be as well when it's still a dwelling and people might have left stuff there or there might be furniture there but no one has a president tension of dwelling there sleeping there at night that doesn't make it all right now but that's my one of what was he convicted of according to the court order he was convicted of second degree forget the felony whether it's time that's not the issue the issue is what what does that document mean which says he wasn't convicted of first degree which as i recall said that welling whether or not somebody occupied it that's first degree he was convicted of this any other kind of burglary well how d pursue that last issue that penal code says that inhabited means currently being used for dwelling purposes whether occupied or not so that it makes a distinction between whether somebody happens to be in a place or whether the whether or not somebody is currently sleeping there and spending the night there now no i think you've missed me try again it defines inhabited in terms of whether the thing is currently being used for dwelling purposes somebody may be for the evening for example the concert or not occupying it so it makes the distinction between a use for drumming purposes and whether somebody happens to be occupying it at the time of the invasion and what he's charged with so no i'm saying your honor that it's all bound together and it was very clear we were talking about this is not a dwelling and so they're all tied together and i think that they were well raised at the district court level and at the opening brief and throughout i think there are a trilogy of facts that show that this was not a type of offense that should get the sixty level enhanced number one second degree takes it out of the welding and number two uninhabited in the charging document which is basically all we have and i think that's  insufficient but even if we only use that when you have it it has a specific legal meaning and have it is defined in the very statute he's convicted of as currently being used for a dwelling whether occupied or not so if it's a dwelling doesn't matter if they're home they're on taylor approach and in my letter brief i talk about all the things that are in the california statute that are not in conflict in the federal statute so firearms offense firearms offense under the upkeep you know it's also includes an explosive device then you follow through all the rules on exposed the device and you find for example that a firecracker is legal under federal law however the fire marshal and other authorities with the ability to do these things has made firecrackers illegal in california so