in carrying marijuana across the border from mexico into the united states illegally is conduct that's part of the instant oftens of illegal reentry and that's because he committed the offense of carrying marijuana illegally across the border in the immigration rian or the immigration charge would under your theory that the relevant conduct with that mean that his immigration sentencing guideline would be good with the drug guideline to be increased not necessarily because the grouping rules have completely different sets of rules and there are some offices that just by rulers specifically excluded from being grouped together and i believe immigration drugs fall within that specific of exclusion so it's not necessarily that they would guidelines themselves two is the case law that i've just cited to the court and three is the set of facts that set out in four corners of the p s r itself so first to the guidelines the guidelines that we're dealing with is section four eight one point two anymore which says that a prior sentence gets criminal history unless the conduct not the office but the conduct for that prior sentence is part of the i'm instant office and i emphasize conduct here because the government has argued drawing on cases from outside the circuit primarily that it's that the court should look to criteria such as whether the all offense the state of things that were going about and how it charged as part of the federal office or whether it was used to prove up the federal law so i think there's just some confusion some to how the rules apply when you're looking for a very specific fact situations and starting at the rules let me ask you this hypothetical what if an individual and they charge him both with illegal entry and they charge him with robbing the bank those two are all different crimes and they would serve the purpose of a match sometimes and i think what i would border and it continues until he's found so it began on the date that he crossed the border which he admitted as says in the p s r which he admitted was that very same day of july twenty fourth this court's precedent under gooner of from two thousand and seven also immigration agents by their own presentation on the website that we cited report to by their own mission statement saying what therefore they found him on july twenty fourth right at their at the border they found him right beside the marijuana he admitted on that day  pity respond it's july twenty fourth twenty seventeen because that's the day the c b p agents who are immigration agents that's the part of the department of homeland security part of their mission when he was found on that october or november when some other agent really interviewed him again but it's an on or about statement it was a statement that he could admit to because certainly july and november were close enough in terms of on or about and again i admit this is a plane or a case i don't know that people were really thinking of the consequences of what they were saying at the time but certainly wouldn't make him innocent of the off chance if he'd gone to trial to say well i was found in july not november with the instruction which he on or about so he committed the offense he committed at the same time all those facts are in the p s r and at his evidentiary admission at the sentencing itself and what makes this case very similar to henry which is the one positive case that we've cited too is that it's really the unity of time and place and action that was the same as in him in that case the man committed a state offense by trespassing on his girlfriend's home entering her home at the same time he was subject to a restraining order and it turns out he had a gun so two separate completely separate often says but this court accepted that because both of those two separate often says neither one of which was necessary to prove the other they were committed at the same time in the same place by the same individual in the same set of actions all is a unity and that's what i'm arguing here that they go to least cross the border with that marijuana's he admitted he crossed the border to italy illegally reenter himself all at the same time in the same place this is it should have been honestly it should have been plain to everybody and if we had paid attention to what you care you're in i'm not gonna and vargas garcia really say they didn't say that criminal offense is never part of an illegal reentry office they said look at very clear because that's the case this court decided in favor of the defendant if you look at the three factors time temporal proximity spatial proximity those were missing in vargas garcia and you're am i gonna rain i'm a goner the guy was found near the border edinburg texas but he found him with his drug offense a month after they could prove he had already entered the united states illegally that's not what you've got here so yes it is a difference but it's very similar to henry henry was cited in those other so all the rules have been set out clearly before in this court case law all the rules are there right in the guidelines themselves and all the facts are right there in the p s r for the most part with the one evidentiary admission that he made at sentencing which was i crossed the border with the marijuana right then you're right that was something that was otherwise because they found him at the border right near the brownsville landfill which any commercially available map shows which is within a mile to two miles of the border and they found him with the marijuana right beside him so yes that is an inference but his admission that sentencing is what brought those two things together the other issue i would like to address is societal harm because that was the third factor and yes one of these often says an immigration off and the other is a drug offense but again the context of the border gives us a very specific societal harm and i locate that harm again in what customs and border protection identified as being its own reason for being they identify themselves as an agency that is there to protect the border both from illegal incursion of substances or agricultural products to protect the border from those illegal incursions by things but also to protect the border as is the name border patrol from the incursion of people so in this case because of that very close nexus to the border what you have is a societal harm in what they are always did of the violation of the border he did it in two different ways but it was the same societal harm violating the border by crossing illegally with drugs violating the border by crossing illegally with himself in his own illegal pres and it was that societal interest defined in what c d p means and what it does and its mission statement that shows that it was the same societal harm same temporal proximity same spatial spatial proximity as well so for all of these reasons this error was clear and obvious we should have been clear and obvious based on the court's law the guideline the facts set out there the government has been argued at all that we haven't met the third of the fourth problem but just briefly the difference from the top of the right guideline range to the bottom of the wrong died line ranges a difference of nine months almost a third of the sentence that was actually imposed so wonderful you know martin is that sufficient to to meet that burden of showing up on substantial rights and under this is a case that the court should correct that it should remain for the district court to reconsider the sentence one because of the degree of that difference and two because the district court didn't identify any other countervailing factors to say that the court would have done the same thing otherwise with knowledge that the court might decide to do something totally different once the court knows what the correct guideline ranges the court might impose a variance but that's for the district court to do in the first instance so we're asking i'm sure your point i don't know his exact release date i believe the two year mark will be in about october of this year so he got a thirty month sentence so taking into account account good time credit should be somewhere around october of twenty one thousand aren't thank you count thank you for the united states i want to emphasize right off your honour's that bagel does not challenge his illegal reentry conviction on appeal the indictment for his illegal reentry conviction  prosecutor read the indictment he confronted it when the prosecutor read the factual basis and they confirmed it when the district court said asked him about it and used the date of november twenty first not on or about actually said november twenty first already confirmed was not supported by the record well in other words he didn't understand the nuances that were implicated in this age well your honor terms of let's just assume that july twenty fourth was alleged in the indictment it doesn't matter because there's no evidence in this record underplaying air review that the prior sentence for the drugs was crossing the river basically since he did not have money for the fee he was asked to go with a group of people but they had bundles of marijuana when he was arrested he did not have the marijuana with him he was arrested the marijuana was near him himself that's a relevant conduct the illegal reentry he argued that because he said that he was resisting arrest because he didn't want to be he wanted to avoid detection for illegal re entry so the defense whole argument was the t proximity of the to do which is what we have here today the defendant is arguing that this court in darkest under plain error of you reject that argument and said the two offenses were distinct offenses they involve different criminal conduct conduct to the drug offense and this court held again that there was no evidence in the record that one offense was in preparation for the other that one offense was during the commission of the other the core specifically held  that the temporal proximity element it's not solely dispositive yes it's important but it doesn't give a defendant carte blanche to commit every x contemporaneous crime and have it be considered relevant conduct the court  way not also distinguished the henry case what the federal public defender allies upon and i just want to touch on the fact that henry was a government concession and in your reign of this court distinguished it because number one it was an illegal  case and number two it was a trespass case where the defendant actually used the firearm to commit the trespass offense and the government agreed there was a clear link between the two under your reign of this court is also looked at the sixth and eighth circuit cases where the those courts look to other elements again decide simply the to coral element there such as the prosecution by different solver ends with different we have that here the fact that the federal indictment does not reference anything in the state offense or the state's facts there's different societal interests we have the drug offense protecting society from the drugs versus respect for immigration laws and again the court noted that the illegal reentry offense does not give the didn't carte blanche to merge all of the conduct that occurs in a single time speak for other in response to the government's argument that we are tied to the indictment in the didn't that in there i think once again we just have to go back to the so fundamental point that the law sets out in this court's  is july twenty fourth twenty seventeen applying the facts there in the law that this court has already decided over twenty years ago that's the date he was found and the date that he admitted to it his plea had a legal significance that was not taken into account with regard to the sentencing at that point it would have been better of course if someone had objected that it wasn't necessary at the time because it still falls within on one of us here in terms of plain or not when established your honor in the p s r itself if i history of case law established that fact i also want to get to the issue of the admission about what the limited thing admitted admittedly very limited thing that the defendant's attorney said there he said that when this defendant was the marijuana wasn't on him it was near him that was clear from the p s r anyway when he added was that admission that he had the other together with a group of people because he didn't have the money to come into the united states and had com across with a group of people carrying marijuana that's what the crux of what he admitted was and under this court case law in a case called child is hernandez from two thousand and twelve this court used a very similar admission in that case it was the age of a victim in a prior case just call that an evidentiary admission defendant was trying to say i've been here all this time and so what i did at the very end when i was found that's relevant conduct so that's the exact opposite of what we're saying here we're saying it's the exact conduct when he actually first committed the illegal reentry offense  that time together so that's what the government's missing we're not doing what you're a know was doing we're not doing what fargus was doing we're not trying to say wait until we're found some months later and some place later and then tie it all together and give us carte blanche because we're looking at same day same time same place same sort of action all done together and that's why it's like henry i would say that henry is a case where the government to prove his federal office was not required to prove the trespass he didn't miss is there's no evidence in use the gun to commit the trespass the gun was found in the house where he had committed the trust and the person holding the gun was the victim who was found by police holding her own gun and his gun the man's gun who was later charged was found somewhere in the house and she said that gun was same societal harm those other factors predate the focus on relevant conduct by reason of the commission's amendment to the guidelines there's no reason for them to be carried over now in terms of factors that the court should consider because they go against the very breadth of the relevant hundred regime that was brought in in that ninety three amendment and speaking of consequences if the court were to adopt that as a as a set of factors in a drug case any fraud case if from now on the defendant is going to be able to say you didn't rely on that other fraud to prove up my federal case you didn't rely on those other drugs to charge me in this federal case so it can't be relevant conduct that would be a very strong narrowing of one b one point three that's not what i think the court is doing and that's why those factors should not be brought in now all right thank you to both sides it's thank you to keep in mind the really standing trying to get up and you know out as promptly as