issues i intend to address only two of them today the third issue which i will not address unless the court of course has any questions concerns the increase in statutory maximum from two years to ten years as a result of cruz's conviction for second degree assault that issue i think we noted was included for preservation purposes of supreme court so i want to address that the two that i will address are the inclusion of a term of supervised release that the district court ordered contrary to the recommendations in the sentencing guidelines at chapter five d one point one c and the first issue which i'll turn to presently is the district court's failure to grant mr della cruz via says motion to dismiss the indictment the parties went through motion practice it was premised on two violations two defects in the deportation process in immigration court one of them concerned waiver of the right to counsel and notification of their right to counsel the other one concerned mr della cruises mr dela cruz via says eligibility and application for relief in the form of voluntary departure with respect to the right to counsel the first point i want to make is that the government has the burden of proving the validity of the waiver i think and it's an important point here that could be determinative in a way that's not always present in every case i want to start with some legal principles and then circle back to the colloquy that the immigration judge in gauged in with mr dela cruz vs first the advice of rights in terms of notification of the right to counsel this court has said it needs to be meaningful in addition the right to seek relief again it needs to be meaningful and to explore a little bit the purpose and function of that it's it's so that the respondent actually knows and understands the rights that he or she might be giving up or waiving its not just so that the immigration judge can say the magic words and tick off a box on a form that shows that they said it there's a purpose and a function behind it the immigration judge is supposed to inquire specifically that the that the respondent understands the right to counsel and to extract a knowing voluntary and affirmative waiver and again these procedures exist so we can be left reviewing the record with the firm and definite impression that the respondent really understood what he or she was giving up in addition with respect to voluntary departure the immigration judge has the duty or the responsibility to help a pro se lit there of course was an issue as to post here involuntary departure because of mr dela cruz says conviction for a crime involving moral turpitude and the immigration judge seemed to seem to assume that because of that conviction involving moral turpitude that that categorically meant that mr della cruz vias could not make a showing that he was someone of good moral character and that's one of the problems or one of the requirements that's that they need to show to be eligible for post hearing voluntary departure but out of what do you think are the facts that would give him the most positive factors he worked supporting the local economy for some time he worked in landscaping he worked in field work he worked in a restaurant i don't think our economy can function without those sorts of  jobs being filled by people like mr della cruz vi as he had that limited criminal history and he did have family ties here in the united states he stayed with a cousin and the cousin spouse they had a united states citizen child his immediate family hasn't had a child he didn't correct correct his immediate family it's true was in mexico but he did have some family ties here so i think  trained lawyer would have been able to identify at least some aspects of mr della cruz via says background that council grant a voluntary departure i'm not saying and i don't believe in good faith i can't say that he would have necessarily been granted it how long has he been here for approximately one year he came in two thousand and twelve for the first kind of ironic because then argue with respect  honor and that that is a an issue that i wish to raise with respect to supervised release perhaps that's a good opportunity to turn to that issue unless the court had other questions about the the deportation  process with respect to supervised release my argument is not that the district court lacks discretion to deviate from the guidelines recommendation we would never make that argument because for the most part that's something that tends to benefit defendants rather than than harm them my issue is more that the imposition of supervised release was rendered procedurally in a reasonable because of the district court explanation of why why it  and in our view the district court identified what are really common place monday in factors that are circumstances that apply to the lion share of illegal reentry defendants the district court said that he came back after he was deported of course that's a prerequisite for the offense no illegal reentry defendant is charged without that being present in the first place the district court also said that he arrested again after he came back and that in my experience in any event is true in almost every case that's how someone comes to the attention of immigration authorities in the first place there was really nothing specific or particularized as to mr dela cruz vyas that in our view warranted or justified the conclusion that the term of supervised release was needed to deter putting it more in guidelines language there's nothing about this case that really takes it out of the heartland of cases that chapter five d one point c was was meant to address and i do find it ironic that you know defendants all the time complain about or try to convince a district judge or a sentencing judge to not follow the guidelines because they lack in pyrrhic will support as drug sentences fraud child pornography  so forth but this is a case where apparently the recommendation in chapter five on supervised release for deportable aliens did have empirical support the commission studied this it released a lengthy report in july two thousand and ten and then the amendment was passed its amendment seven fifty six to include the recommendation that deportable aliens not be given supervised release the  district court's conception that it imposed some kind of deterrent effect is hard to square with the facts it's hard for me to imagine that a defendant would i would not be deterred by the prospect of facing a new prosecution and up to ten years imprisonment in this case or twenty in other cases where an aggravated felony is present but that that including supervised release would actually deter them and lastly i see my time is just about initial deterrent i thought was the rash and i think that was the rationale i just disagree with it and if i could just be afforded one last comment i see that my time is up thank you  too to address your comment about the inconsistency i think it is an inconsistency because the district court's view that mr de cruz vyas lacked positive equities on his behalf in terms of voluntary departure at the deportation phase can't really be squared with his comments that mr dilip cruz vyas had a strong incentive to return to the united states and that was why he was imposing supervised release all his immediate family was in mexico he had a place to live there he was going to be able to work with his family on their farm there and he also lacked a lengthy history of deportations enery entries that we frequently see in these kinds of cases my time's up but i miss them and i have one other question certainly and i'll ask the u s attorney as well i mean given they generally are not to impose a supervised release for individuals in the situation unless there is something particular ised do you think examples of cases where there have been particular ised reasons given by the district judge that didn't circle around to the fact that the person was an alien who came here trying to think of of what those circumstances might be that would justify it and not frankly i was having a hard time coming up with what those might be but in any event i would i would argue that they're not present here thank you  starting with his initial deportation hearing where defending the taxes thirteen twenty six condition conviction by collaterally attacking that deportation hearing i think government's position both the defendant knowingly intelligently waived his right to counsel and that he was evaluated for voluntary departure and that the immigration judge acted well within the scope of her discretion in denying him very departure turning first to his right to sink counsel during his deportation hearing the other gratian judge in this case initially went through the right to counsel with the group this was a group deportation hearing and then she took up issues with the friend and individually i when she went over the issues with the group the with the rights with the group she talked a lot about having the right to an attorney or qualified representative at no expense to the united states government and of no when she was talking about that representative the immigration judge and i'm referring to excerpt of record ninety five she kept talking about help she said you were given a sheet of of or containing organizations that may be able to hope you for little or no cost the group on the sheet is called northwest immigration immigrant rights projects they hold the legal orientation programs and workshops where they help people and then she talks about how continuances can be granted in order to get that help in order to get that representation and at that point she also discusses some other rights to include talking about the rights to present evidence that will come back to you but then when she takes the matters up with the and individually she says good morning did you understand those rights that the court explained to you and he says yes any questions or know that you want more time to see if you could get help with your case no i am excuse me i don't think so then the court will find your waiving your right to an attorney and electing to represent yourself and of note defendant did not interrupt at this point and say no i want an attorney defendant was well acquainted with what an attorney could do having just been in criminal proceedings for an assault two and relatively short order prior to this but that is not what happened and i would also invite the court to listen to the actual deportation proceeding the recording was provided by the government in this court accepted that recording because i would note in the district court's opinion in this case he noted and i'm an excerpt of record thirty two that upon hearing the actual recording that when it was defendant's turn to be asked about getting legal help he stated without hesitation or a tone of confusion i don't think so your honour's this is this is a knowing and voluntary waiver and i i'm cognizant of the amount of issues to get through but i would just briefly note that the cases that are cited by defendant are not even closely comparable to this case all those cases record which aliens had elected to waive those rights and which had elected to pursue the issue of counsel so this court was left in a position of not knowing who if anyone had sought to assert those rights and the other cases fall in that same vein additionally the cases that defendant cites point to prejudice they talk about the alien being confused the alien trying to assert some form of relief the alien having avenues of relief available to him and that is not the case here and that goes to the first issue the only avenue of relief that would have been available to defendant was voluntary departure and as it pertains to voluntary departure he was evaluated for that relief he had no positive equities that would vote in favor of affording that relief and the immigration judge went forward then to deny to deny that relief is the standard  defendant at this point has had multiple good lawyers he was represented by the federal defenders in the district court and then he has a different federal defender on appeal and they are unable to come up with positive equities that that would favor him being afforded voluntary departure defendant had an incredibly serious conviction and he noted lack of criminal history defendant was only in the united states at best for a  year and he walked away with this conviction why shouldn't he just get on a plane and go home and why do we need this supervised release i think think you're and terms of the supervised release i think it's the government's he says that he promises he will not return to this country and he just wants to get the least amount of time possible and that the reason why that's relevant is because the district court judge earlier had talked about supervised release and that some of the benefits of supervised release are that it is an additional means of deterrence and that it would encourage someone to defend its position not to return to the united states but he also talks about how if defendant who's promising to stay in mexico noting that all of his family are in mexico his job is in mexico he will stay in mexico if he doesn't make good on that promise then if he has supervised release the united states doesn't have to go through indictment and a full jury trial in order to pursue this defendant again that he instead could just be found to be in violation of his supervised release so the government argues in addition to the deterrence impact which the government thinks is certainly reason enough possible and he promised and that was this is all one sentence he promised that he would not return to this country ok and the reason why that's really what's keeping me here that way you are sure you can't return i mean the whole thing just seems a little bit of an alien is placed on supervised release that supervised release runs while they are outside of the country and it would only be triggered upon re entry into the country yes and so i think they do mr court judge's point was your promising me you won't return and so i'm going to give you a shorter sentence which he did you that he departed downward from the guideline range but if you return to this country the government doesn't have to go to the hassle of having you indicted and prosecuting you for another thirteen twenty six you will be found to be in violation of your supervised proactive support of a probation officer and i understand that the government understands as i hear you are saying well this is really for the government's administrative you know i just noting that as an additional reason i think that the primary impetus behind imposing the supervised release was for a deterrent effect and i would note your honor that the provision that is being referred to is in section five d one point one of the guidelines and the reason why i indicate that is because it is this is not in the thirteen twenty six guideline this is in the general guidelines so in other words if illegal alien is convicted of that of bank fraud or an illegal alien is convicted of a gun offense or comparable this might make more sense that someone who it is going to be removed from the country anyway not me said that to determine supervised release this defendant however had already been thank you your honor he's just two too brief points the first is that mr gregg more indicated that the immigration judges discussion of getting help with your lawyer in the context getting help with your case in the context of a right to counsel would have meant to mr de cruz vyas the same thing when the immigration judge asked him individually do you want more time to try to get help with your case and that's a connection that trained highly capable lawyer is making i'm not sure it's the connection that my client would have been making in his mind with limited english skills and a ninth grade education and it's basically the same argument when this great war says that the district court gave mr du a cruise vyas the sentence that he asked for because he asked for less time he asked for less time imprisonment i don't think it was going through his mind at the time that he could