re enter this country illegally at sentencing the district court heard in refusing to believe that mr might guess when this was kidnapped and that this was the reason why he reentered the country the district court also procedurally heard in  made consistent statements both in his letter to the court in the p s r and during his allocution and corroborated this claim with evidence of a police report about a kidnapping in addition the evidence that he had hired or attempted to hire immigration counsel turned out that the so called immigration counsel is not barred and coupled with cooperation of danger in honduras including the brutal murders of four of his family members two of which were murdered at the same year that he was kidnapped the record is nothing but consistent with his belief with this with this kidnapping and his belief that he would be killed in one door ace if he stayed there which is why he really entered the country illegally nevertheless the district government had the opportunity and it did it attempted to point out to the district court why the claim of asylum and the claim of fear and the claim of kidnapping were made up however all those were actually mistakes the good government pointed out what it believed to be errors in the dates of the police report that is it believed that the police report was made in august of two thousand and ten but claim to describe a kidnapping that occurred in the future which would be factually impossible but the record shows that in fact the dates  were the opposite the kidnapping occurs in august of two thousand and ten just a matter of months after mr marcus went his was deported from this country and that the report was made just a few months later in october twenty ten by his cousin the government also points out a mistake a so called inaccuracy or inconsistency in the second police report which detailed the brutal murders of mr marcus squinty his cousins and also that was a mistake made by the government th there is nothing in the record for the district court to have concluded that the kidnapping did not occur and that's why it's a clear error that warrants recent saying are we are reviewing for plain error here yes your honor we are reviewing for plain  do think that we have met each of the burdens we think the error of the district court disbelieving mr marquez went as it lacks any support in the record there is nothing but consistent evidence of the kidnapping and of his bonafide belief that he would be killed in hundred should he be returned what what what evidence was there in the record that did not come from him the evidence that the not come from him are the police the police reports that were submitted by his counsel and there's a letter that come that comes from his fiance as well who had known him for a few years and there is the and then there's the evidence about the immigration counsel being retained so therefore seats in what appears to be a contract all those are consistent with a bonafide belief that he was scared to go back to honduras and nevertheless without any without any support in the record the court disbeliefs and that's where we believe the error occurred i think the error is clearly playing because of the prior longstanding law in the ninth circuit about about due process requiring that a person be sentenced based on accurate information that's carty that's two thousand and eight clearly predates the sentencing in this case and of course as far as substantial rights and the likelihood of affecting the fairness of proceedings that is easily met in this case where that is the main mitigation argument that mr mark has when tis is presenting sentencing and just believing that someone was kidnapped and made made up a kidnapping storing made up a reason to reenter the country when the offense here is entering the country would clearly could have affected the may have affected the sentence by a month or more which is all that's required under this under this court's law if i may turn to the second issue your honor i think another proper another proper basis for remaining for recent and saying is what there's no dispute over that there was a clear air and that's just for core believing that mr mark has went as was convicted by a jury beyond a reasonable doubt convicted if he admitted the the reason it makes a difference is because he did not even admit the facts that made a conviction for domestic violence what he did in that in the state proceedings is that he reasonable doubt by a jury of the spears then the court would validly be discrediting what he's saying to the sentencing about protesting to the facts that is he would have gone through a process evidence would have been submitted to a jury twelve individuals to union a mostly agree that the government approved each and all of the elements of that domestic violence conviction whereas all that happen in the state proceeding is a stipulation of not even a saying at that point is saying you said one thing and now you're saying another but that's not but that's not what happening and the just record here is acting on and on a misunderstanding of what happened previously now the court if it really believed which it appears that it did that he had been convicted by a jury of his peers has wouldn't and now comes and says you know i didn't do this at all then i thought i understood why the court might be angry with him and want to sentence him more but that's not what's that's not what actually happened but i thought he did admit one hearing that he did indictment and the element to commit to be convicted of a legal reentry with an enhanced penalty doesn't require that you committed the underlying prior it only requires the you were convicted of so the indictment charges him with having been convicted previously with a domestic violence conviction at the change of plea when the court is advising him of the necessary elements for the sentencing and handsome and the court advice assume that it has to be that you have to must have been convicted not that you had to have committed but you must convicted this is the framework in which he's now answering the court's question no two i think i think basically it would be a reasonable answer for someone of his education working through a translator to understand the question the same way that it has been presented to him in the indictment and in the advisement about what is necessary to having been to have to be convicted of a legal reentry with an enhanced penalty and that is that you were convicted now it's very clear under california law that if you plead nolo to  offense then for the legal effects of the no law please are the same as guilty plea so he understands he has a conviction he never disputes that he has a conviction and my argument to the court is that when he says yes to that question he's not he's not morning your honor may please the court you are seen mohammed representing the united states your honor there was no procedural error here not under the plane or of you and the defendants low and guideline sentence where the court started with  correctly calculated guidelines range took into account the thirty five fifty three a factors considered the defendant's mitigation arguments provided reasons why i didn't believe that since mitigations arguments all of that the sentence was substantive  what the district court said that it found those particular police reports unpersuasive them clearly say that you believe the defendant was hit actually with the district court said was that this report accepted as true the reason for which the reports were offered your honor actually because this the court said that i'll accept as true that hunger is a dangerous place i will accept as true that his family members defendant's family members were killed the defendant did in fact intend to seek political asylum when he came to this country but at the same thing he believed you know the court never specifically said that the court believed the defendant was kidnapped but the court did question those police reports and under the plane or looks like the district court made an assumption that's not entirely supported by the record right i mean because the district court and i'm trying to figure out if the district court erred in assuming that mr marcus was back in the united states when his cousin gave the statement to the police ok so what the record has in iran is that the police report says that it was made on october fifteenth and mark has the defendant said that he was going to leave the country on october tenth that's when he told his cousin that's what's in the police report now the court for the court to conclude based on that police report when the cousins making the police report five days later that the defendant is out of the country that's at at best that's up to reasonable dispute we don't know the record indicates that he may have been in the country may have been out of the country but under the second prong of plane air review the fandom carries a burden because it's up for reasonable dispute and coming to the third prong he fills even more miserably because is this report accepted as true the reason for which the report was offered that you came to this country intending to seek political asylum from a very dangerous country court except that is true so on remand whether he was in the country or not at the time the report was made it's not going to carry the day and so he's going to he feels also on the third prong of whether  affected and that would be my point unless the court has more questions about the police reports that would be my point in the police report and move on to the conviction so the domestic violence conviction there's no dispute that there is a conviction there and it was whether it's a no contest or a jury verdict or a guilty plea as a court asked question of defense counsel it doesn't matter so what else did the court have the district court have before it in the the defend it admitted to committing the spouse about of crime not that he had a conviction but actually that he committed the spouse the better crime and that's important because under blacklist the court rule is that  criminal history so one of the things that the court relies on in terms of the defendant downplaying his criminal history is that he's denying this crime that he pled no contest to then that he told the district court that he actually committed and now is sentencing when he wants to minimize he's saying that he didn't commit the crime and that's one of the other part of the district court discussed of his criminal history in the defendant downplaying his criminal history is the white convictions in the p s are in paragraph sixty your honor defendant says that he's never had any problem with excessive alcohol use and that was important because the fed has three dui convictions another to dui arrests where for most of them the blood alcohol content was greater than point zero eight he has a drunken disorderly conduct arrest in the d v conviction i mean the defendant in the narrative that conviction the victim reported that the friend it wasn't able to complete his rate because he passed out of alcohol consumption that's the record in terms of alcohol use that the record that the court has before it and defended in the p s r denies that he has an alcohol problem i mean on this record and then also the court has before it but this is also a battery conviction accounts for the majority of the sense i mean it's for the base offense level to be increased agree absolutely on that and so i guess i'm just one isn't it possible that the judge could have sentenced him to a lower amount of this of this issue the court actually noted i mean the court didn't just rely on the spouse about reconviction i was important but we have to note that there are other issues another battery conviction where the defendant was ordered to undergo sex offender counseling there were two additional battery arrests and all the work victims here women i think that when the court was was analyzing this conviction that was one of the things that the court analyzed but also the dui history the fact  defendant came to the country and would engage in this dui practice of one of those the uighurs runner he crashed into a wall and the court also found important of the defendant just come to the country and seek political asylum both times you re entered illegally he engaged in drunk driving and he was caught by the police and in this particular instance he started his his political asylum proceedings after he was found by immigration authorities let's talk about the subs is seven months was what the government awkward but doesn't that suggest that that what would have been sufficient in this case you know your honor because there is a bargaining process with the plea agreement so the fastrack the whole point of the fast track is you know what we're to offer this we're going to be bound by the defendant would agree to not argue below the guidelines the defendant with agree not to appeal sentence and that is a bargaining process defendant rejected actually the court did analyze the issue and it said that the defendant rejected the fast this and so i don't think that on remand the court would go below the guideline sentence on this basis the court's already analyzed this issue thank we'll give you a little more than you think you have anything i want to just start with the kidnapping because i do think it's clear from the record that she does not believe that the kidnapping occurred and she doesn't and the district court does not believe his proffered reason of why he reentered the country and if the court looks at the record it's twelve is where really she starts discussing what she credits and what she doesn't credit and the just record is very clear she only credits that his cousins that family members are deceased and that the family intends to apply she does not credit the kidnapping right she doesn't say anything about the kid credit kidnapping she doesn't even credit that it's a bonafide belief of his that he would that he might be this report and that's very lee clearly saying i don't believe what's what's being said in this police report because why would someone make it now of course one reason why some would wake it is because it happened and because a cousin is wanting to make documentation of it and seek police assistance in locating the the kidnappers and i think that's very clear that that's what we're arguing the error is in these in the court kind of strains to come up with potential reasons why she does believe the police report but ultimately what she's with this record is disbelieving is his kid nothing is is whether the kidnapping occurred and i think i earlier i went through what we believe the record shows about the kidnapping i just briefly on the second issue of the conviction the government's  focused on whether it affected his substantial rights and went through some portions that the government believes would justify the sentence impose some of those and largely of those it that the government proffered before the district court and before and now are  she doesn't believe about the kidnapping and she thinks now he's lying about his conviction and that that would have if someone was lying would have properly been considered and in arriving at a sentence and once you take that away then i think we've