my argument a trespasser offense i think we would have to agree that at a basic level that's what we're dealing with here my client was coming to work the pre sentence report which was provided to the to the court  indicates an employment record page nine paragraph forty three that he did have an employment history in the united states in mesa arizona and salt lake city utah he also had been working on a factory on the border with the united is right across from the godless arizona just prior to coming here to the united states in december of two thousand and four my client stated that he came here to work in michigan with the other individual that was arrested and detained with him when he arrived when they were both contacted by the border patrol officer already he was coming in the middle of the winter to go to to go to michigan to work in his statement of acceptance of responsibility that's what stated he was going to michigan to work that was his motive for committing the crime of illegal re entry the court in page nine of the sentencing transcript excerpts of record page thirty three indicated starting in line one that was different about this quoting is what is really different about this case is your client wasn't coming here to work at least apparently under the pre sentence report so that appears to contradict entirely what the present report says it appears that the court did give my client full acceptance of responsibility but i rewrote it does he says that's sensibly why he came but he's he goes on say he wasn't coming here to work at least apparently under the present through board when a crime wave when he's been since nine convictions so he may have come to work but his actual conduct is inconsistent report and having given my client acceptance of responsibility on which he the court indicated he was in fact coming here to work in michigan in the middle of the winter that would appear that would be a reason to go to michigan i don't think if you were coming here strictly to commit crimes that he would need to go to michigan in the middle of winter to to do that he would he could just stay within a few miles of the border to do that if that were in fact his purpose in coming on this occasion so i believe the court committed in effect an error  giving my client credit for coming forward for work related purposes as part of his acceptance and then saying that apparently under the pre sentence report he was not coming here to work so i think that's first of all that that's an error there i don't believe that the other factors that are raised which i acknowledge are unusual i acknowledge their unorthodox but i also believe they are pertinent i don't believe the court could have addressed them adequately having stated that he was not coming here for those reasons at all that is coming here to work and in fact was coming here to commit a crime so that even if my arguments had video come for both it would be speculation on my part to to give a direct  rephrase the question i didn't which i was at is whether or not it was reasonable what i meant to say was a reasonable or not for the district court client may have come to work but he also came it could be reasonable yes and in light of my client's history of of petty crimes i cannot say that that was patently unreasonable but his recent history apparently had been working at gainful employment and right on the border region he did have a prior positive work history in his country and was going to michigan the middle of winter presumably to work there was no indication that when he crossed the border he was committing any other crime other than coming here illegally with no weapons drugs or anything of that sort found as asked of the other factors that are raised your honor i believe there's there's a huge disconnect in sentencing fall asleep when it comes to individuals such as my client and what is going on in the real world that just simply is never addressed appropriately and i have in my opinion and i've tried to present that without really any basis or background anywhere else to try and work from i was i was bringing forward issues that i don't believe i had ever seen raised before one of the issues is that employing individuals like my client in this country is a crime you i agree your honor i don't believe you can but i believe that of a factor that needs to be taken into account in the sentencing of individuals committing this type of trespass very offense is the fact that the federal government simply never prosecute the seminal causation point of these type of crimes which is the employers they are breaking the law they are committing crimes the interim staff report of the sentencing guidelines commission regarding immigration related matters stated that there's a need to find a balance between enforcing the law and border protection protection and the fact that our economy is not dependent on an illegal migrant workforce if that's the case and what they're saying is that our economy is dependent on criminal activity criminal activity which the government could put an end to by prosecuting the cause which is the employers but they never do so in effect people are lured here but the prospect of them fly men even though it's illegal and the employers are able to do so because they in effect defacto have immunity from prosecution which gives them impunity to put out the i guess i could say help wanted signs which people then cross the desert to fill those positions hundreds of them with arguments of the mood in congress recently they may have your honor i just i just feel it's a factor there needs to be raised and i don't believe it gets sufficient attention in sentencing hearings particularly in this and in the case of my client he's seventy months of incarceration for an individual who's essentially committing a trespass who pleads guilty without a trial who's given acceptance of responsibility yes he had a criminal history there's no denying that but it's still a fairly harsh sentence when one considers that his reason for being here is and was at least he didn't as you noted apparently or us offensively to seek employment and across the board certainly in the district of arizona employers are simply untouched i mean there could be people implying undocumented aliens across the street from the courthouse they won't get prosecuted and i believe it's a factor there needs to be noted i would respectfully like to reserve my remaining time for rebuttal you may misread it thank you yeah but with regard to this case mr herbert below and here has emphasized certain considerations about the kind of global nature of the problem of immigration problem is that is even suggested this is not one of political branches to make a kind of legislative policy much of the question of what is an appropriate sentence for defendant has already been hashed out in sensation and that of course and the only reason why the defendant is facing these things that he did is because of his lengthy criminal history it was not just petty offenses the thing that put him into the sixteen level headed henri was a prior sale of narcotics  to determine what is reasonable by first going through the guidelines analysis which is exactly what the just recorded here he looked at through the history and it's not just this one the at the district court exercising this person with departure and judge roll look at the entire record and said i don't believe a departure is appropriate in this case i don't want to take you below the guideline range but he did say having looked at everything including all the me appropriate essentially for the reasonable in light of your past history including this particular aggravated this no sale narcotics and everything else the nine convictions the fact that he'd already been on probation a couple times and i haven't helped the fact that even expelled from the country a couple of times and hadn't helped this was a reasonable sentence not only within the guidelines which i would suggest who may have had some kind of abilities to work when he wanted to but the time that he was in within the united states use either in prison or committing other crimes many of which  not even taken into account in the criminal history five but could have been which is part of the reason i guess or not the party so bottom line function is that we should be reviewing from the cantrell decision which makes it very clear that essentially you have a two step analysis first of all you look at the guidelines themselves and go through the same kind of analysis that you would have and that's where the whole question of a departure comes if i may your honor thank you your honor i think on the topic of of reasonableness again one of the factors that has to be taken into account in reasonable ness is the nature and circumstances of at least in part my client was coming here to work and got credit for that in the company lation in the calculation but in the actual sentence it appears he he he did not get credit for that and he was essentially coming here to commit crimes or there appears to have been a sort of a change in position from the statements in the pre sentence report to what judge roll said was in the present report of at least apparently under the present report and there's nothing in the present report that indicates in any way that my client was coming here to commit  of employer sanctions leads to a charging discrepancy in that if there were no employer's offering work most people who are committing these offenses would not be here thank you ok well thank you very much