we'll hear the next case and so that the argument you made as to why durrance said it can be raised in an appropriate case if you say that that case that this case is appropriate to raise that we are stuck with vendor and you have to go back and recognized microphone please inventor in a page twelve the panel states to be clear we recently recognize that if the issue were properly presented for appellate review section seventy five or for a provision that whether or not they're going to seek rehearing or in bond hearing on the issue before writing to the court with respect to the decision in vander and and how to proceed today and i felt that having read what the court stated in  and that's this case is well well i would submit not exist not exactly it is both cases but i think that panel and i'd ask that this panel also think in terms of the specific facts of the case they are as they relate to the the plea of  in an in the district court level there was a hearing conducted before judge solomon to make a determination as to whether or not that the government has shown by a preponderance of the evidence whether or not the scope of the statute appl jurisdictionally and immediately afterwards literally an hour later both defendants pled guilty at that time so in essence as a result of the district court making a determination factually which was before a judge by preponderance of the position that in the under an as in my initial brief in this case we did not attack the constitutionality of the statute as opposed to whether or not as applied to the appellant in the case it was unconstitutional and those are two rather distinctly different issues and i would submit that the panel in the end there in specifically begged the question and that's why i wrote to the court to ask for the opportunity to argue that precise issue because it is indeed ripe for this court to consider the number of and the alien cases that are being brought in the nd circuit at this time is the highest in the united states other than in the th circuit and in the th circuit that's the only circuit that's already ruled that it's unconstitutional it's time for it to be heard rather than waiting while people are in prison for fifteen to twenty years rather than having the opportunity for reversal they remain and and a trial where a jury could determine factually where here really valid as fiji indicated that well it expired well there was no indication in the record as to whether or not it expired before or after the vote left there was no indication in the record as to whether or not the occupants  boat knew that it taken place and there was a real question which the vendor and court determined was a was waived as to whether or not the right the confrontation was waived by not being able to attack the documents with the individuals who presented those documents and each of those waived as a result of the plumbing there a determination by judge sullivan by a preponderance of the evidence that well this is jurisdiction here so they really had no choice because they had nothing any longer to to to  trial of the case and as the enduring court ruled in this court will rule the consequence of the plea will use those confrontation arguments that were that were raised and i would submit that to a large element into a judge determined right thank you may please the court my name is jason swer gold i'm an assistant united states attorney in the southern district of new york i represent the government on appeal and i represented the government in the district court as the court is aware from the letter that we submitted in response to the court's order we do believe that vand in squarely addresses and rejects all of the arguments made by mr suarez who was his codefendant we think that the issue that mr nelson wrote about in his letter was in fact waived under the ruling in vander in and unless the court has any specific questions for and between what conduct the statute prohibits and the threshold limitations of the statute scope and i urge the court to consider this either in this decision or in the very near future because many many  can split at some level this will go of the supreme court i believe so i don't believe they will actually is a circuit split at this point the there is one circuit that's ruled upon it and determine the statute to be unconstitutional two circuits that have determined that that it's unconstitutional but reversed on other grounds which is similar to what the current product in a the you understand that in a circuit appellate system where we are bound by what other