they please the court jane olson on behalf of miguel hernandez fuentes i'll do my best to watch my own clock and i'll try to reserve two minutes for a bottle with the time that i had when i was i'd like to try to address both of our principal claims for relief of first the factual error and second the guidelines issue with respect to the factual issue your orders assuming for today's argument that plane air review applies we satisfy all four prongs of the test first the district second the air was clear and obvious within the meaning of the plain air rule in addition to the recitation of the p s r mr hernandez went to his personal e referred to his work in the united states as a central component of his own sentencing allocution united states but he was certainly very serious offenses when he was in the united states as well you know i believe that was the government i'm sorry i believe that was government counsel your honor you don't think it was a judge counsel said that he had worked in the united states i guess i'm troubled by the fact that i don't know what difference in this particular case whether he worked or didn't work in the united states had on the ultimate result here help me with that when you push or of course because the district court spoke almost directly in the language of planar review your honor the test from joseph that we've cited in our brief says that there has to be a reasonable probability of a different result and the district or the district court almost spoke in the precise language he said you're eighteen mr hernandez quite frankly i would probably be a lot more sympathetic to your position if your record showed that you came to the united states you stayed out of trouble and you on to say and then you're twenty thirteen conviction is quite troubling to the court i think to say you're not willing to conform to the laws of the united states that are out immigration you're here and you put other people at risk and never again mentions employment so even if you hear it in engineering the lack of a record of a crime in the united states the the clear focus of the court's coal queen is are the courts is about his the judge explicitly explained why he was rejecting my client's requests for downward variance he says i'm not going to do very downward in this case i don't think there are although there are thirty five fifty three factors that would ordinarily warrant a downward variance so we're starting there with a presumption in the district courts mind that there would ordinarily be a variance here is there are other thirty five fifty three in fact horrors plural your honor that certainly do not mitigate in the defendant's favor and those are the fact tours plural that i put on the record and the two factors there one is the lack of employment history in the united states and the other one is the two prior convictions and so what it what it tells us about the district court's analysis your honor is that he viewed mr hernandez for instance as a person who came to the country and not only committed crimes but was also unproductive and didn't contribute to society while at the same time as committing the two prior offenses so if you take out that half of the analysis the domestic employment his view of mr hernandez what is good within a reasonable probability have changed is there any case law in the ninth circuit and there's an error on one factor and the court finds that that's a prejudice you know i can't think of a case of the top of my head that answers that direct question but i think if we take the rationale to its logical conclusion i mean no sentencing judge in the downward variance but there's two there are these two things there are these two reasons why not so so so are we were left then with way whether the one factor along would have been enough for the judge not to vary downward how do we possibly measure that news the probabilities time how does that how does it fit in plain air review because i don't i don't see how we do that because he spoke in the language of plain error of you he said i would probably be more sympathetic to your position but for these two factors so if you take one of those two one of those factors out then you have a reasonable probability and joseph is clearly joseph case and we're not guessing and we're not trying to put words in the district court's mouth we're we're sort of theorizing there's a reasonable probability he might have down one down a month even though he only mentions that once you think that that was one of one of two major factors in the district courts and alice's because as i mentioned he goes on quite for quite some time talking about the depend on employment being as important to the judge as the park and fictions no it just has to be is it has to be a significant factor in the judge's analysis which it is because he brought it up he said it was and said it was important and running on time when i would like to  morning judges may it please the court lori price for the united states the defendant has not proven that the district court committed error much less playing error when he did make that single statement about the employment record at sentencing the defendant's entire argument on this point is based on a single sentence in the pre sentence report that is uncorroborated and lacking in any kind of real detail there's no detail in that sentence basically the defendant told the probation officer i've had four jobs will have been in the united states this is a defendant that had been in the united states at that point more than twenty five years he'd been there since one thousand nine hundred eighty eight there's no information about employers that the defendant may have worked for no information about wages he may have made no information about duration that he worked at jobs or dates he worked at jobs so so from the court's perspective what your response in part is that so the court picked this up but the reality is that the defendant in this case did not come up with any information to verify the fact that he was or had been employed united  states that's correct your honor and what the what the court had before it was this single sentence in the pre sentence report with the vague description hey i've worked for jobs and then it had all these specific details about what the defendant had been doing while he was in the united states but the court did erroneous lead to did not say there was nothing in the record to support employment in the united states because there was something in the record there was the p s r there was  have your honor he did make that statement yes i would not say that that was an error i would distinguish it because i think that in the context of the conversation what the district court was talking about was an employment record a history of the defendant actually working in in the united states it's not just a single statement made in the pre sentence report and during the sentencing although it doesn't contain much specific information the defendant even said to the judge i've been here for more than half my life is that your fourteen and i have my children here i have my wife you're my work i have a way to earn a living here i know how to earn a living here seems like the defendant is even indicating that he's worked here i would agree that the defendant was indicating that he had worked here and then the prosecutor made the statement referenced by judge smith where the prosecutor said i don't know what work he's been doing here but here's what we know about the criminal history with the felonies with the drugs and guns and the court had all of that information before it when it was considering has the defendant been a productive member of society and the court concluded no he i don't have the evidence in fact that he has been a productive member so i guess are you saying that when the district courts and that there wasn't evidence the record didn't show that he had a record of employment that he was referring something to something more substantial that more evidence him up was in the record as opposed to saying there was no evidence of employment at all that's correct or i'm talking about a broader calm i'm i'm talking about the district court make it a broader comment about the defendant's productiveness in the united states as as you pointed out your honor the judge was very aware of the record he was very aware of what the defendant was doing in the united states but it doesn't seem to be exactly what you know  speaking of a record of employment the judge said and i quote i don't see that in the pre sentence report what it is in the prisons report and then said i don't see any record any record of employment in the united states but there is a record in the prisons before is that a record of what the defendants or is there any corroboration could the judge have been saying there's no physical  to show that the defendant the work that his age is that what he was talking about yes so so that is the distinguishing point that we are making your honor is that there was no corroborat information and for a man who had been in the country for decades there should have been some kind of information about specific employment or durations of time that he had been employed those four jobs that he listed those could have been for a week a month six months a year and it still would not have been this robust employment as the defense would like to characterize it a little bit we do look at the fact that this records and he says it that he's talking about the presence report it talks about your employment while you're in custody it talks about your employment in mexico and that goes on and more troubling what i see as his criminal history but he does oh throw the two parts of the p s r which talks about  information that was the information he had about what the defendant was doing with his time in mexico and in the correctional facility it was just in the it was that was all the information in the record he had was from the p s r he had a lot more details about what the defendant was doing in the united states from the whole record including the defendant's prior criminal convictions and one thing we haven't talked about is the defendant's statement to the court at the sentencing hearing where the defendant says i'm going to keep coming back to this country you can he essentially says you can deport me as many times as you want to and i'm going to keep coming back in the district court actually asked him blatantly are you saying that no matter what sentence i impose you're going to come back to the country and the defendant said that's correct and when the court started going over the thirty five fifty three a factors that was the primary thing that was the primary factor that he started with was the fact that the defendant he had a deterrence issue and a and a need to promote respect for the law and the need to protect the public safety because this defendant was deported all the way he was deported all the way to el salvador and less than seven months later he's back are you saying that in light of what the court's there and what the defendant said the court was in effect applying without saying so the thirty five fifty three factors to keep the sentence at the lowest guideline but didn't go any farther down because there were other factors in this case the statement by laws of the country i think that that goes to the defendant's statement at that sentencing hearing that he's going to keep breaking the law no matter what the court does and that in that scenario  the difference in our case your honour's is that we have given the court a detailed chronology of california case law going back to the california supreme court's decision nine hundred seventy one in the newman case and all the cases from there to two thousand and seven in montero in those decades t have tension in california case law to be got to go as far as we have the adams line of cases which says under penal code six fifty four we would treat it as an element but under the kid the definitive california case so we've cited that actually numerators the elements of possession for government supreme court have never done that so when we have this tension in the law assuming we're bound by the decision yesterday which of course we are on that aspect of the holding it still doesn't meet taylor and matt this is