refers to use of any passport you prefer to mention that in the brief to some extent but what your response that the statue to self is already covered this he pled it's been found guilty of it which sort amended now it seems to me it already covers more than a booklet regular i think the regulation refers to a passport so i think your position in your brief has been that the other forms diplomatic passport official passport would have the categories are are covered so where they just need to reissue the guideline now without changing the wording and it would cover all passports is that a major position just timing th and they have decided not to put the same language as the statute i mean it's very easy to fix however the way it's written right now you send it lends itself for ambiguity if you look at the guideline did the guidelines cover all passports until two thousand and eight between two thousand and four two thousand and eight didn't cover all passports the man existed not just the regular but the official in the diplomatic we would disagree with just because of the museum or to mexico or canada you can use that card right you can use that and it is and he said that the fact that dublin doesn't recognize it is not dispositive that i mean that you can't use it coming back from dublin but you could use it coming back from canada or mexico or guideline that's when you apply this court's precedent and interpret that word with you know i mean you come up with this judge but ok your argument is that while they should have changed the guideline couldn't i don't know that you can make the inference that they didn't mean to include it couldn't you say they didn't need to change the guideline because they thought it already covered it i don't know that you can make an inference based upon the fact that they didn't change the guideline also a couple of judges who have the same precisely and they don't apply that you know i but i'm glad you brought that up do we have i tried to put some cite sorts of there were citations to the other judges and it just appears that there are these just these judgment it is is the judgment forms when you go to that reference and it doesn't say anything one way or the other i did file objections because i actually talked to load this four cases with these for the judges i did file a written objection but i think the ruling was  tell me what have the rulings been in the western district kate when all of the ruling ok are they actual rulings that are making a decision on this or we don't know why the court rules no no we with do we have let's see we have judge down and in those two cases and we provided this size we did not provide any attachments because it was a reply brief and we were not allowed by the rules but we did provide the the the  executive branch's authority in the district court in this case well we did make an argument judge and we are you d s with it with did make the argument we're did you make that in the district court either side since you enhancement is fifteen to twenty one is the court the one interfering with the state department if it's the the u s attorneys are taking the position if this is not like the the passport only coming out of the western district and so i wanted to know if other public defender's office were adopting this position is it is not to my knowledge that they have adopted it however as i said i got there to the west but then again look at the duke islands the guidelines do not penalize all those documents that can be allowed to enter the country if you have never been previously convicted and you use a green card or a birth certificate card or a access from anywhere in the world mean you have four judges in the western district of texas but the guidelines has how the average person would interpret them is that and you know we do all that modified categorical in all of this and you know all of these things that we're supposed to be doing it the average person well when it comes to the guidelines we have precedent in this court this says that we apply the ordinary meaning and we resort sometimes to the dictionary and when to use the word passport you think of these global documents that allows you to favor obviously it would be december and he would make it for christmas otherwise his like in the next year so for those reasons judge i'm going to i know that my time is almost run out  and under the sea a former there is absolutely no basis to do that the code of federal regulations which controls in this case not the dictionary as mr garcia suggests says there are four types diplomatic passport in appropriately it would have to your of honor because the the guidelines itself says united states passport and so when you go back in you don't you don't do that but one of the flaws of the flaws is that they asked the court to review the guideline in isolation the cases mosque assume particular and talk about reviewing these types of challenges in context in the context of this case if you look at the c f r and it says a diplomatic passport is one type of passport so we would apply there just the way in way replied we passed four card or two a passport book has any other district in the country grappled with this issue other than the western district of texas to your knowledge i assume you are on kind of boards where you all share information issues that come up in you in the u s attorney's office and in the public defender's office is this an issue that's percolating around the country or at least in texas or is the western district not only sui generous but standing  context such the doe case which we've cited to the court has said there's no distinction between a passport card and a passport similarly the ninth circuit has looked at it again in a different context it but  that you don't draw a distinction between the two and there's very good reason for that when you go when you look at the sea of former which of course are generated by the secretary of state which has the authority to issue these documents they don't make the distinction it would seem like it might be a good idea for us to reach the issue since we're having moral argument and there are cases in the western district but nonetheless i need to ask could this case be affirmed on an alternative ground that the district court would have given this sentence anyway or does this record not support that it's not clear from the record so you could not say that the odds considered all the three five five three five years this is a very veteran district court it's our chief district judge in el paso he has a very good command of the sentencing statute so while i can't represent to the court that i can't point to you in the sentencing transcript where he actually said under three five five three factors i would read it given it anyway and you would have done that in your brief if you had that  in your back pocket correct your honor we would have brought that directly to the court's attention so yes but i do intend to pick up on what you were asked a moment ago certainly this would be an issue that would be very hopeful to have a circuit court opinion on finally regulations regarding her passport card and then issue a passport card in may and their regulations to say that that's a passport there's ample grounds stand for the court this court to rule that the passport card qualifies as a passport for the end hinzman and there's also sentencing guideline authority for that when you look at amendment six seventy one it talks about broadly interpreted in this particular guard line too well to point to dust that may be precisely why the sentencing commission hasn't gone in changed the guidelines because they don't need to they've already told courts we believe this should be  opposing counsel argues that we're acting outside our our because the executive branch has sought looked already in matters of passport on it all your honor we're asking the government is asking this court give effect to the regulations the secretary of state has already promulgated and that's again the other side cites the hague case for the proposition this would somehow be infringing it's not infringing in hague what justice justice berger actually said was that you can restrict somebody shoots of a passport especially in an instance where in that case you had a rogue said agent go around exposing other c agents it is absolutely to this case other bent for the proposition that there is and no problem with a court for saying a restriction that the secretary of state imposes and i think also i interpretation this is a straightforward statutory interpretation case to the extent the court believes there are some in big you would eat in the guy behind itself it need look no further than the implement their regulations which tell the court beyond any credible dispute that a past book card would qualify as a passport we think if you look they are only you can rule in affirmed the district court's decision to over objection in this case you can also it seems to be your position that no matter what the regulation may in the future say new forms of passports created by the state department this guideline i mean back up new forms of passports created for very limited purposes maybe different much different kinds of documents and the others that your argument would still apply and sees me as a very broad interpretation you're asking us to look i think and getting back something judge graves raised earlier this goes also to your question which is should look at the context in which this document was being used and which those future of passports maybe just this gentleman used this passport for the sole purpose to come into the united states that is the sin of qua non of what a passport entitles you to do now if there's a future passport that may alter that context perhaps then there might be any ambiguity but as we regard to this case there's absolutely no ambiguity because he came to the border knowing that he was trying exactly and precisely because it could be that judge some big words at the very minimum because it could be that maybe could not be that you have four judges in the western district that i appear in front of them daily but i think at the very minimum judges these is subject to more than one interpretation and if i just quickly can mention you know you can enter the country with documents and that doesn't mean their passports a green card a naturalization certificate a birth certificate a boarding crossing card and they are not passports and the guidelines do not necessarily apply an enhancement if you haven't been previously convicted or previously deported we think that at the very minimum  the language and this is an issue of first impression and i think an opinion would be necessary to provide some guidance i think at the very minimum the language of the guideline lends itself to more than one interpretation and and so for these