without any uncertainty or ambiguity set forth all of the elements of an offense charged this court and vasquez hernandez made clear that an element of attempted illegal re entry is the specific intent to be free from official restraint or the jury instructions proper on this point the current model jury and so ones that were given at his trial no your honor they were not so vasquez hernandez considered no in your case with your client is all right the jury instructions proper yes your honor the jury instructions complied with this court case law and set forth that specific elements so a jury found that this element was satisfied that's been convicting him so doesn't our recent decision i know what happened mostly after the briefing but there's the united states versus return just a few months ago from our court doesn't that case mean that because the jury instructions were proper and he was convicted under them that this issue goes away no your honor i believe that the controlling case law on that point is do  believe that case law is still the controlling case law of this circuit and that and this court has examined multiple times but reed said that if you're convicted with jury instructions that have the element that you say was missing from the indictment as long as everyone knew that that was the charge you're fine and i think that was the situation here your honor i'm not familiar with reid as your as your honor mentioned that he came out after the briefing in this case and what i have done is examined the case law in light of the cotton decision which i know that the controlling role would be that a missing element from an indictment requires automatic reversal you're reading a lot differently than i do where do you find it in a situation like this as my colleague points out in this situation as i understand this your client was fully aware of the element in the indictment there was no question about what was required right i think that's right you know i was no objection really like that the jury instructions fully gave the opportunity to the jury to find what was necessary to prove that element of the crime right yesterday so i was on the read panel so i can tell you this that that's not that's enough and the other cases that that you cite the factual situations in my judgment are quite different what's your best case are the ones that you've cited in your brief that you think is right on point that you think is not historically as attempted illegal illegal reentry elements have developed in per neo this court did what i am asking the court to do today it reviewed an indictment it consulted current case law that set forth elements of attempted illegal re entry and it found that the indictment must include those elements if the court does that today the court that it would or that the case that it would refer to would be vasquez internee out the court constructed in such and i'm sorry your honor the court consulted a jury instruction case and i think vasquez hernandez is the most recent case that sets forth the elements of this offense and i take your point but let's assume for a minute we put that aside and that aren't there are lots of cases that say that if the indictment parrots the statute and it's the element that's enough yes your honor then doesn't that what happened here well the indictment the statute of attempted illegal reentr silent on the point of means raya all the indictment or all of all the statute says it attempted illegal attempts to enter the indictment here i think as the government agrees certainly is required to do more than that to establish the element that's where the jury instruction comes in well i mean that's only that did clearly have the elements you're talking about include it right it did if an element however is necessary to convict it is also necessary to indict i don't think there is any dispute on that what i'm what i'm not giving here is if i understand correctly the indictment track this statute you indicate your client knew what was required to be proven there were no surprises there the jury had instructions that clearly specify the element as you want it specified in the jury found that that element was satisfied what more do you need i think there is one problem that is presented by the language in this jury instruction that we haven't discussed yet so if your honor would allow me i think the problem here is that the court's case law makes clear that to satisfy the element of mens rea it two things are required the conscious desire to enter without consent and the specific intent to be free from official restraint on the face of this indictment which alleges only that mr davalos knowingly and intentionally had the conscious desire to enter without consent someone charged with that language would not be guilty of attempted illegal again to the jury instructions were proper right you already said that yes your honor by the time we got to trial the matter was resolved however i think the issue that this really presents is the defendant have the right under the th amendment to have the grand jury pass on every element and a grand jury did not pass on every element here if another person aside from mr davalos who was coming to the united states for example someone seeking asylum they would have had the conscious desire to enter without consent but they would not have had the specific intent to enter free from official restraint and if they had been charged with this indictment they would have their the indictment would have been returned in the grand jury would not have passed on an essential element but now that we know that the actual trial jury thought he was guilty of this doesn't matter what's the harm well your honor i think for my position does reed say that you go is no longer controlling ma no it just says that the jury instructions once they're proper and he's convicted under them it basically gets rid of the problem i mean i certainly will enjoy the opportunity to read however i think that do you both still controlling on the point of deficiency in an indictment nobody goes over what now again with respect i take your point but i think when when the indictment tracks the statute devote doesn't say that it doesn't deal with that issue and other cases make clear that that's enough particularly when it's combined with proper jury instructions where the jury was required to find the mens rea element you're talking about think my understanding of supreme court case law is that tracking the statute is generally enough but not always if the language of the statute doesn't fully and expressly set forth all of the elements on ambiguously then there's a problem certainly with again your final you're doing your job with respect that but i and i mean your clients come in the united states illegally eleven times previously this is not a new adventure for him so if this court were to find that there was some error in the indictment i think the error was harmless and we know that because deval is his argument would have been the same he focused on official restraint throughout the trial  opening argument and closing argument were devoted to it his questioning of witnesses and his theory of defense jury instruction all hit on that point and then the jury was instructed on freedom from official restraint both by the court and in the theory of defense jury instruction that the court gave so the defense was the same and the outcome would have been the same because the jury rejected that defense so i do think the error is harmless but just to reemphasize this point  my understanding is that this was to grab them and of their defense that a day does repeatedly hammered what they now say the indictment didn't warn them about right that's entirely right your honor and the jury instructions addressed that court address that and the jury said we don't buy it right that's right your honor and there's no dispute here that the jury instructions were proper and i do agree that was the focus of the trial in fact one relevant quote from the opening argument of page six of think the best case that defense counsel listed on her side was vazquez or nand as i think the reason vazquez hernandez isn't relevant here is because it was soley talking about what you need to instruct the jury on that and that of course is very different than what we need to include in an indictment and i'd meant requires a plain concise and definite statement whereas jury instructions need to instruct the jury on any element that wouldn't be understandable to a common person and that's what the case says a footnote three that is not the requirement for indictments so i think what's relevant here is that unbroken line of case law saying that you do not need to define a legal term of art in if there are no or the questions on that just briefly on acceptance of responsibility the court applied the appropriate standard it said at least half a dozen times so that it was not treating the fact that deval this went to trial as  in fact at one point even says lest i be misunderstood by the th circuit let me reiterate i have not applying a categorical barnier and then the court went on to consider every factor that the follow says the court should have considered at pages thirty two through thirty seven of the record the court considers the pretrial statements that of all us made the statements he made at sentencing the element of contrition the stipulations he entered into but the court ultimately found that because he had gone to trial and contested an essential element of the crime on the merits repeatedly and fervently that weighed against the acceptance of just him and that is the district judge required to articulate every element here she acknowledge all the factors of all of said it was required to acknowledge it simply found that there was no acceptance and that for example the district court was aware that he had previously come in eleven times right that's right he had come in eleven times he'd been convicted nine i mean no disrespect to your position you know that certainly honor this is all part of the job and indeed it is i understand that the the court is focused on harmlessness i would just like to respond for the record to a couple of points that the government made on the issue of whether or not there was something omitted from the indictment to be clear vazquez hernandez was a jury instruction case but it was not so limited as to find that only in jury instructions is this issue relevant it clearly held that an intent that an element is specific intent to be free from official restraint as to the point of resent us ponce i don't think that case controls here at the court only considered the question of what is required for the actus reus element and not the intent this specific question has never been presented or resolved by this court or the supreme court so that case does not control regarding the acceptance of responsibility issue my comments on that would be that ruiz st says that the court must state the relevant standard for the adjustment before applying a guideline here the court did not do that the court did not state the correct standard that it didn't defendant must demonstrate must clearly demonstrate acceptance of responsibility the court instead said the standard here is that the defendant must establish his case is rare that is not true rarity is language that comes from the commentary in the guideline however i think viewing the a click ability of the adjustment through that  makes the analysis improper what this court did here is find that mr davalos was not entitled to the adjustment because he had a jury trial and he did not roll over on every single element essentially creating a rule that a defendant must either