much as i want to spend time flattering you i feel like i need to get to the facts of the cakes so we would prefer that to actually fair enough so this is a case where there are no heroes i want to get out at the beginning that this was a tragedy it was a terrible thing and it is it's just a very sad story and i have looked at all of the photos from the autopsy and what happened in this capistrano was awful but she died because she was pregnant and in the days before the attempted crossing they had met in tijuana and they had tried to see if she would be able to make the walk and that they had walked around the park couple of times and that she had become usually when did and that she didn't they were thinking about calling the trip off because they were like well we're not sure that she can make it but they were thinking about having someone else do it while they were saying yeah we were not going to do it but  show and her husband mr razzo really want to get back to united states and i think given that she's pregnant we can figure out exactly why she wanted to get back to the net united states so quickly so when they decided to make the trip  the big problems with their provisions as far as i could see is that they didn't take any insulin and that the foods a took were heavily sugared sued if you work for dying to get someone to go into in a rest day from diabetes you could hardly do worse than what they had brought along with them it just wasn't designed like i said i don't know under what conditions she could have survived on that particular diet given her a new dish and sustainer she was diabetic just ational diabetes which makes it even worse so that is the big unknown factor it's so in this gets into the heart to issues the heart of two issues the substantial risk i mean under i i always feel strange talking to a panel member about a case that they have written but in gardenhire the court was very clear that you have to be aware of the risk it's not enough to do something that's risky you have to know that you're doing something that's risky so when that kid pointed the laser pointer at the hell or at the plane a half mile away just dug know that the laser is going to spread out a little bit and blind the entire pocket that's not a commonly known fact one of the things that stands out to me about this cases if the substantial risk was going to be applied because of the nature of the journey shouldn't mr arm into mr romero mr hernandez halma get the increase just because of mr ros if they don't think that the enhancement applies just because it's a twenty five mile walk then it seems to me that the facts that make this dangerous that make it risky in the facts relied upon by the district cour court finds that mr or her mentor in their own mr and his palma didn't know about the diabetes didn't know about the pregnancy and those are the facts that made it dangerous so i think that's the  but i don't think that's enough by itself to make a substantial risk of injury or death so the other issue i brought up is the garage issue the resulting in death issue and this is an issue that really does deserve some clarity from this court right now there are two opposing views of the law as it is being dispensed in the southern district some courts believe that if someone dies no matter how it happened during the course of an alien smuggling if they are structured by lightning diabetes and her gestational diabetes that might have killed her independently it's not something where it was particularly no doubt about it this was a cause of death i don't think that i mean she catastrophic i mean she does have medical records she did go to a doctor she had been prescribed insulin and whatnot and this was very early in the pregnancy i believe the fetus was about three months so you know i i don't i shouldn't say there's a diagnosis of gestational diabetes that's that's not in the record ok but there is the fact that she's pregnant and the fact that she's diabetic those are both easily in the record and to say that these two gentlemen caused her death i don't think it's fair i i think that the fact that she died is a tragedy and it's horrible and i saw her children at sentencing and i feel terribly for them but these calos didn't  died because of complications that were unforeseen and unforeseeable to them unless they were to be told that hey she has this special condition so it seems to me that this is the kind of case this distinguishes it from the other resulting in death cases are other resulting death cases basically come into varieties we have somebody who gets in a van and a vantage sober and someone gets killed or we have somebody who's crossing through the mountains there's a snowstorm and somebody freezes i'm curious about your view as to the findings of fact that the trial court made with regard to her recklessly creating a substantial risk of death or serious bodily injury whether that  constitute enough evidence to say that's necessarily a substantial risk i made this analogy to district court didn't work there but hey why not try to get you know i did do some long distance running races and every time i go there's somebody even many people who are at the starting line and i think they're never going to finish and i'm invariably proved wrong and in fact on sunday they ran the rock n roll marathon in san diego and i came into work on sunday  at about one thirty and i saw the people making it the last twenty six miles once you've done the six hours or whatever the cap is and there were folks that were using walkers and they were making it so i you know it's just this was a trashed this was a horrible thing but the three year sentence three year minimum mandatory sufficient these two guideline unhandsome and so the things that created the fifty seven to seventy one range thirty six was fair for this case that's about double two and a half times what an ordinary that i see that we have a minute remaining i could reserve that will give you the well if you find that all resulting in deaths and come to the definition of causation as explained in barrage which was good morning my name is alexander foster and i'm here representing the united states on this matter judge world law just just to clarify as to the the reasons for miss couple strands death the pre sentence report paragraph six it indicates that the autopsy was performed she died from hyperglycemia and ketoacidosis due to diabetes has diabetes mellitus i'm not sure whether that means just ational diabetes or not but it does also indicate that a contributing factor in her death was hypothermia and so we're not just talking about the diabetes when she was found she was found with significant amounts of different types of drugs and so although she did not have insulin she did have other types of drugs presumably those were meant to at least for the short term control her diabetes as i'm sure this the judges are aware in this situation what she'd been told was that it was a one and a half day today walk she'd been told that it was going to be flat and she'd been told that the hardest part was going to be to get over that fence and that is that's what she understood and that's what she brought the drugs for it turns out that that is not what happened what happened was that these individuals were climbing through the rugged mountains up and down and ultimately after as a day for she ultimately died and that's paragraph nine of the prisons report gardenhire is an eighteen year old kid with a laser pointer it's very different from an individual two individuals who are both seasoned coyote's who knew that they that this is a got winded walking around a flat city block this case is much more similar to rodriguez cruz where that plus eight was was put into place where even though the defendants argued that this had been a freak snowstorm and that they could not have planned for that kind of a thing it seems like it is an to this situation where they say we couldn't have known we couldn't have known that this capistrano was diabetic that is fair they didn't know that until it depends on where you are in the record there is evidence in the record that they did find  two and three as they were hiking through the mountains and so prior to her death that being said it is fair to say that when they took off on this trip there is no evidence in the record that they knew that she was diabetic and so when when they when they did take off it is fair to say that they didn't know she was diabetic that being said like in rodriguez cruz the court should find that even though it was not foreseeable i mean even though it is it was foreseeable that she would not have been able to make it over these mountains given the fact that she couldn't make it around the  even if one were to take the burden of proof with the highest was clear and convincing evidence that is true here there were objections that were filed to the pre sentence report judgment should go to address those objections all of the things that are relied that were relied upon by the judge when she reached the determination what the defendant's did require that plus an uptick were not anything that had been at issue the facts were not at issue  that's and that's not exactly my question michael my question and i'm sorry if i wasn't a little bit clear did either one of the in hamden answer both require proof by clear and convincing evidence and if so did the trial court judge indicate that any findings were made by clear and convincing evidence right the judge did not to my recollection the judge did not indicate did not indicate whether the standard was clear and convincing evidence or not i guess all i was trying to in fact it was a rugged terrain that set out the court accurately points out in paragraph nine all of those all of those are set out in the p s r and therefore it is the government's position that yes there was sufficient amount of information and p s r that was not sort of address the one remaining issue it appears the clear and convincing evidence i did ask the court to apply the clear and convincing evidence standard i had interest of the court to have been pleasantly overruled it and found everything that provide insurance that's how i had read the record on the judge one judge bench being a major findings but the blip baby in the sense that she found out we get that mr hernandez mr mentor mero definitely didn't know about  diabetes or the pregnancy until the trip was well underway but they for but judge bench they go found that because they've walked around that was enough it's my opinion that that's not enough that by itself is not clear and convincing