briefly framing the issue and then making two important points about this case and distinguishing this case from other pickup truck cases in this circuit mr maldonado joel was charged with unlawfully transporting someone he knew was an illegal alien he pled guilty to count two pursuant to a plea agreement with regard to that violation of eight united states code one three two for a pre sentence report was prepared the government did not make any objections at sentencing the judge sue a sponsor raised the possibility that enhancement and enhance specifically the enhancement to one point one be six it is an enhanced man if the offense creates the substantial risk that death or serious bodily injury will occur to some other person in this case the two points that i would like to make are first that no substantial risk of death or serious bodily injury was created because the distance was minimal and the speed was minimal secondly if there was air the air the government cannot convincingly demonstrate to this court from this record that that error was harmless to on the question of risk isn't it reasonable to infer that even though the stop was made very shortly after the truck began moving in them or reversing whichever was that the truck would have traveled for some distance on some kind of road or or highway in other words the word risk is sort of a forward looking word isn't it that there would have been a a t least a substantial risk of judging this particular yes if that were the issue in the case however the guideline refers to the creation of substantial risk creation create being the operative word is that bringing into existence the substantial risk not any risk not some risk but a substantial risk of death or serious bodily injury on the word substantial and generally in the case law for example the word substantial evidence just means something more than us until it means something that's real in there but it doesn't have to be predominant or or great or excessive i believe that in law substantial is often used to be to mean more than a preponderance almost two thirds and i'm taking that from  instances in which tax letters are requested and the question is whether or not there would be a substantial risk that the i r s would notice a particular tax scheme tax method is being used furthermore this court first in kyler identified the substantial risk from traveling in the back of a pickup truck on hop on a highway at highway speeds and this substantial risk was that someone would be thrown from the truck or that serious bodily injury could occur on this record at this speed and with this minimal distance even opportunity to be thrown from the truck is nonexistent what does the record show if anything about what kind of a road or a trailer or whatever the truck was on know is it's referred to as a levy road and there's another instance where the record states that mr maldonado chose were turned off onto a refuge road stopped that brings up another important distinction that i'd like to make in this case mr modern auto cho was under surveillance as he drove on lady road as he drove on levy road he had no one inside the pickup truck with him neither in the cabin nor in the bed the guideline does reference substantial risks to any other person border patrol agents watched mr maldonado stopped they watched the pickup truck be loaded and they almost immediately turned on sirens and activated emergency lights at which point mr maldonado stopped and everyone was able to get out of the truck the argument that unless and until the officers let him go further purpose of the enhanced correct judge i think that at that point the substantial risk that this court identified being thrown from the truck that did not exist and it was not created more importantly it  wasn't wouldn't be until somewhere down the road later perhaps if there were evidence in the record everything that all the ingredients of they are turns of at one point drop was empty it's not in people in the back this is not and at this point it is not created law enforcement very often in proactive investigations to stop a more serious tragedy or event from taking place as the result of a crime and the law punishes the acts of the defendant not his intended acts if they do punish the intended acts there under attempts statutes or in kohei crime statutes that's not the issue that we have here we have a guideline that very clearly speaks to the creation of substantial risk there are other places where the commission in the guidelines talks to the intent or the intended harm for example under the last provisions of the fraud guideline the intended harm can sometimes supplant the actual harm that's not what is happening here and under two l one point one b six second point your honour's is that the government cannot convincingly demonstrate that the area if you find error is harmless and they cannot do s because the district court did not in this case say that it would have imposed the same sentence for the same reasons absent the air the judge only said same same range is that right correct most the judge said that she believed that the range with the unhandsome it was the correct range this court recently in martina's remeron identified that particular issue the identification of an improper range as another hurdle for the government to jump when proving that the error was harmless specifically it page ninety six of the martinez or mero case the court makes that remark so for two reasons both of which are present in the record this case should be reversed and reman to the district court first the record is insufficient to show that there was substantial risk and secondly the record does not assist the government in convincing this court that the district court would have given the same s same reasons absent here thank you as as for the question of creation of risk do we defer it all to the district court here or is this to no orator concerned with respect to the creation of risk i do not believe there was a finding in the cord that would be a review of application of the guideline to the facts that were found in the district court i do not believe that that's a fact that's an application of the guideline enhancement witness said that the this is what was in her complaint she said that the truck never took off but slipped on the gravel so we know that the levee you know was a levee we know that it was a gravel road we know that the truck slipped on it beyond that there's no for their description of the road and the record we just know that it was a levy and i think that's because the judge brought this up and it was a nationally in the p s r for the facts to be explored further do we understand it to be like a road that runs along the top of a realty or do we know to be quite honest we don't know much more than it was on a levee it was a road on a levy and it was gravel and fortunately there's not much more description there but we do know though is that when mr maldonado stopped his car approximately eight well there were more there were ten undocumented aliens that were actually up at border patrol but we know that approximately eight jumped into the bed of the pickup truck they were unrestrained they were uncovered we know that the that they wan levy road that it was a gravel levy that they started to go at the truck slipped and and this i believe is sufficient and the case not to show that the defendant created a substantial risk of serious bodily injury or  do we know i remember from from the briefs that the if the truck had been put in reverse and was backing out for some distance can you tell us what all of the records show about how far in front of the truck went forward afforded to go backward well the first thing that i'd like to point out is that the defendant pled to transporting he admitted that he transported an undocumented alien so when we look at the factual basis for the plea the prosecutor stated that the view as the vehicle started to move agents activated emergency lights and then he stated that the defendant transported or moved the end community alien within the united states so those are the facts that the defendant tied to the p s r describes it and i believe this is from the agent everyone jumped off and ran and then we have the female material witness who said substantially the same thing but in her complaint we have the truck never took off it's looked on the gravel so all of the male undocumented aliens were in the bed of the pickup truck in the females are in the front so everyone has a different perspective what we do know is that the vehicle moved whether it went forward and backward or attempted to move which would be consistent with being on a gravel road perhaps it didn't go as quickly as they wanted to or he was trying to get it to move further  so we know we have movement the district court found that there was transportation the defendant pled to factual basis that included transportation so we know that the vehicle did move i think the question in this case is we have transportation but is there enough one like like you know we have i don't believe that there's an and i believe that's why the ender's brief was rejected by the court and said no we need to look at this further because there is a case of it is specifically on point here however if you look at the other the case is that this is supposed to be enemies in a case by case basis and i think here when you have eight undocumented aliens in the bed of a pickup truck who are unrestrained uncovered they're being transported and it's on a levy that is gravel wait we know that the vehicle slipped at least once that's sufficient to establish a risk of serious bodily injury or death and that was sufficient for the enhancement very briefly just to address the number of aliens in the bed of the pickup truck other i don't think that it is material to the ultimate decision what the record says is that the females were instructed to get into the cab of the pickup truck and the males were instructed to get into the bed of the pickup truck nowhere in the record is there a distribution or an indication of how many females and males there were there is an indication in the p record one twenty nine paragraph eight that there were females plural and males just one in the event yes sir with your response to counsel ops it's a burning transporting he was charged with attempting to transport or attempting to move very often for practical reasons there are discussions between clients and their attorneys about the threat of a charge what he pled to was attempting to transport or transporting he did in his statement accepting responsibility so that he could get three points sign a statement a statement saying that he transported there's nothing in the record to demonstrate that that transporting was any more than the distance between you and i or the back of his courtroom so that the double it's sort of i completely understand and i think that they hope for you  you know and i think i mean we all know people plead guilty to a lot of different reasons but that is what you do it's their right yes judge and in this case there is no evidence of exactly the the distance the transporting was going to entail in fact at the very beginning of the sentencing hearing the trial court judge speculated that if there was evidence in the record that mr maldonado show is simply going to go trying to you know hit the gas and you know sort of like spins away but there's nothing in the record that there is nothing in the record judge but i would like to call your attention to the findings that the court adopted through by adopting the p zero one twenty six paragraph six record one twenty six paragraph six of the p s r one of the facts she adopted was that the truck appeared to be attempting to reverse before it stopped there are a lot of qualifiers in there i think it's very clear that border patrol stopped them immediately and there was no significant movement it did understand someone to say that the wheels  in reverse spawn the gravel or slipped in the gravel or the female material witness in the complaint recording her hearsay statement indicated that information that information my understanding it never was adopted by the district court