unless the the court has questions regarding some of the other the other issue i believe just only one other issue i'd like to spend my time addressing the acceptance of responsibility issue and then to also addressed in reasonable in addressing it stated that mr because mr lopez between you had gone to trial the government argued that he had challenge the facts and that court found that mr rodriguez floor was entitled to the third point for acceptance because in focusing on the because i think for two reasons primarily primarily because the court  actually punished him for going to trial and that was that was the this court's finding and also because the focus is really the fence contrition in making the statement he very timely admitted all the elements of the offense mr lopez between you know it made it all the elements of the offense as a matter of fact admitted them twice once in two thousand and three and then and what i'll call an updated seem to give your client credit for what you've just described but he won't take that additional step if the panel concludes that booker doesn't alter the requirement that the government move for super acceptance i guess another way of asking the question is why should we conclude that booker alters the prior law that would require a government motion for super except i think my my argument to that your honor is that the end result is that a person never gets the third and the third point if they go to trial because obviously from the government's perspective i don't ever expect them to make a motion for a third point if a person goes to trial even if as in mr lopez pitino situation he in fact confessed to every element before the prosecution began he was in custody but it was before the prosecution began you can think of the way in which going to trial would might not super acceptance and it's what was commonly done by criminal defense lawyers before the guidelines and they've sumption them was unless you try the case you could never get the full story of your client's behavior in front of the judge and the only way to do that really was to try the case and say so with the end of the case that we're trying this case should we try this case your honor so you could get the f panoply of what the defendant's conduct was not some summarized version of it so in that instance perhaps super exceptions would be required if not consider it i'm sure there are some circumstances where it might happen but but the way the guideline is worded it's obviously left up to the government to make that motion and i don't i don't see a circumstance where they are going to make that motion after a trial has taken place and i think that might be really asking is to say that that provision is invalid somehow and reasonable arbitrary the provision requiring the government i think the court i think that's what that is where we're going so it's not the only way you could win i think that i think that if the court considers the book a factors guideline calculation without that and then you would argue that it's unreasonable not to give him what he would have gotten had the guidelines been written differently  i'm not going to give extra credit for this super corrupt co operates was unreasonable in not doing that here i think i think that's correct here i think that would have to be a correct analysis if and i realize we're kind of headed s the first instance that i had had with the district court had to address the issue of the book or factors what the court did was summarily addressed them recognize as i make this argument that we had discussion immediately prior to the to the imposition of the since we had some discussion about criminal history so i can't say certainly based on that argument that their judgment of wasn't considered criminal history because clearly he was but there are other factors and those factors were not address then and our position is that the court has to go through some sort of analysis of those factors other than to respond of responsibility not was standing the fact that he went to trial but declined to give the additional level for super acceptance of responsibility for extraordinary acceptance of responsibility given the fact that the defendant went to trial i'd like to distinguish the enacted in april on april thirtieth two thousand and three and this particular case in our case the offense happened in march of two thousand and four clearly after the enactment of the feni amendment so the difference between rodriguez lara in this rodriguez lara case is in fact distinguishable from this case three one point one clearly says that the additional level it's warranted when the defendant acknowledges cooperates with the government constitutional or legal challenge he went to trial and he went to trial because he wanted to tell the judge his story and at trial even though he did make two statements before trial during the trial the defense argued part of the argument was that one of the statements was in english and maybe the defendant didn't understand english well enough and it should have been made in spanish going in fact to challenge the evidence at trial so we would submit your honor in this case the court the probation officer jaime backtracked actually did not even recommend the three levels for acceptance of responsibility the government argued that the three level two can be given the judge on the other hand considered all of the factors went over the defendant's history noted that he had three prior illegal entries that actually goes to my reasonable us our you know storage recommended two levels but told the judge the third level was up to him i believe your honor it was my understanding actually the p s r it did not recommended that the dissent and not get acceptance of responsibility but i just said that they recommended the two and then said the third or super acceptance for their departure judge is up to you right correct your honor and they recommended a low end of ninety two months actually in the judge on the other hand that's correct the judge on the other hand indicated no i'm going to give him the two levels the government argued none of the level should be given the judge decided i'm going to give him the two levels he did in fact acknowledge his guilt before trial but i'm not going to give him the additional level first super acceptance of responsibility and that's exactly the wording in the statute that the wording is that you have to have to take extraordinary have extraordinary acceptance of responsibility and your honor the reason for the government having to file that motion is because the government as the comments see two three one point one indicates the government is in the best position to know whether or not the defendant has in fact assisted the authorities by coming for went through the different factors in fact i know that the defense is arguing that he didn't consider defendants the exact years in fact judge when jury did that he indicated that he the defendant had three prior illegal  he had eleven criminal history points he had a number of dui convictions where they weren't even counted as criminal history points and he acknowledged and reviewed all those factors in told the defendant during the sentencing hearing you know i'm giving you a break here you're getting two levels off don't come back because if you come back you're going to be looking at even more time than that so the judge did in fact go through the defendants the civic factors that are outlined in the additional authority cited by the defense so your honor we submit that that that the court in this case considered all the factors of thirty five thirty three acknowledges the guidelines are advisory apply the advisory guidelines gave the defendant two levels for acceptance of responsibility and correctly did not give him the translation in the sworn statements is that we start to tread very closely or on the right to trial and the right to trial means just that it doesn't i don't think that that cross examining the agent about spanish english translation amounts to challenging the facts and that is the distinguishing feature that the guidelines set out challenging the fact of whether the defendant  and i don't think i just want to mention also briefly i don't think that that we can distinguish right or just lore the way the government has distinguished it being guidelines are still in effect the court looked at it the court said i'm not punishing