vacate the fifteen month sentences imposed by the district court for his convictions for making false statements in connection with the purchase of a firearm and he is asking that the court remain and for resentencing remained as appropriate in this case for at least two reasons first the district court committed procedural plain error in this case by failing to identify the appropriate guideline range at the beginning of the sentencing or any point during the sentencing it was somewhat cleared of all the participants what the guideline range was your honor i think it depends on how you define participants i do not i believe that the that the government and defense counsel may have at that point have thought that the guideline range was it was twelve there had been a previous pre sentence report that set the guidelines  fourteen based on statements that the probation officer took to mean that mr perez had transferred purchased the weapons knowing they would be transferred to a prohibited person the government indicated that it was not going to pursue that enhancement but said it could be found we just don't want to defend it on appeal on the march seventeenth hearing in the district court judge said i'm not sure i agree with you on that  and left it at that and did not return to the issue so when we're at sentencing in april the district court never returns to that issue and we never know even at the end of sentencing if the district court changed its mind on that point well defense counsel thought there was a risk of that would new have expected defense counsel to say something about that issue and nothing was said about that issue you're right you're on there nothing was so who was confused who didn't know what the operative offense level was but for the issue that was discussed it seems to me everybody in the room understood what was being discussed and what ultimately happened was consistent with what everybody in the room understood prejudice and if everybody in the room knew what it was and it turned out it was what everybody in the room fought what possible impact was there first in this court's decision isn't that the answer my question what you answer my question first what possible impact was there the possible impact your honor is that the just record judge imposed a sentence of fifteen months saying i'm following the district courts i'm following the probation officer suggestion the first probation report that was prepared that had a guideline range of eighteen to twenty five had a guy they'd range of twenty four to thirty months suggested a fifteen month sentence but is there any reason to think that that's what the judge was referring to when there was a later report your honor every question that the court is asking me requires supposition on our part and that is something that is not near if it's purely supposition if there's no prejudice it's not  plainer i disagree your honor i think this quinn you better tell me what the impact of this because it seems to me that's what the pieces missing well i i would also say that i don't necessarily i don't mean to be i don't know i think you've got the cards you're dealt you're prime to play you can but unless there's i mean playing air requires more than air among the things it requires is impact not always your honor and that is why i referenced this court's decisions in whack nine and hammonds and whack nine this court said that that requirement the requirement of done identifying the appropriately facts of this case at all remotely close to the facts of that case there were yes you're right but there were cases in which the district court did not identify the appropriate guideline range of the plane the plane or a standard requires that you show an effect on your client substantial rights are you saying you think you have a case that says that's not part of the plan or standard i don't understand why you think you can avoid telling us what the impact was on his substantial rights because we're acting on your honor says that there is an exception when the error committed by the district court is so flagrant that it is not required for the defendant to show and you think it's a flagrant error to refer to a probation report that was the most recent probation report and use what the range was there instead of i mean that's not the kind of error that was issuing whack nine the error that we are arguing your honor is the four level unhandsome and that was disputed that was discussed and they did have a substantial impact on mr harasses sentencing in this case the government the probation office and the government in favor of a four level enhanced meant because the weapons that mr perez purchased were transferred to mexico the only evidence in this case that the weapons were transferred to mexico war mr president on statements and those statements were made after a mr pearl as was given inadequate miranda warnings at the interrogation at the border and he was given warnings the problem is was a warning stay where the warnings effect to be taken back but i think your problem may be the district court explicitly found the statement to be voluntary and that finding is not challenged on appeal so why should we be concerned well your honor because we the question is it's difficult when you talk about voluntariness of waiver of miranda and voluntariness of the confession and and i believe the supreme court says there's never been a case where you might have a involuntary there's a case that we cite in our brief called givens from the fourth circuit the last last summer which is very closely on point where a defendant asks the law enforcement officer who is interrogating him am i in trouble and the responses know you are not in trouble that is coercion that is intended to mislead the defendant and as a result result in an involuntary when he didn't get in the police made it seem like he couldn't have his car back if he didn't answer the questions we don't have anything like that here do we do we have any any coercion or implication that he can't leave i mean you're not making arguments like that you're making arguments that they said things that were confusing but that seems to go more to knowing intelligent your i disagree that they were confusing they were misleading and yes in  the case there were two different issues there was the issue of whether he could have his car back but they were addressed separately your honor they were they were separate issues and they both combined you know supported the court's decision but there's nothing to indicate that the court found that the openly misleading statement made by the law enforcement officer the same statement made here wasn't the reason that they found the miranda waiver to be involuntary if the court would allow the rest of my time for about oh thank you it please the court my name is brandon brown and i'm an assistant u s attorney from the district of arizona in this case the court correctly considered the defendant statement that he transported guns to mexico when determining his offense level for the crimes that he committed when sentencing a defendant the court starts from the proposition that it is required to consider all relevant conduct when it is setting an offense level the exception to that is when there is a blatant illegality compounding an already well established charge and that's the circumstance in which the court would disregard a statement for sentencing but those those situations are not present in this case in terms of whether or not the charge was well substantiated at the time that the agents interviewed the defendant they had forty four seventy five three forms that appeared to have been filled out by the defendant and a statement from a resident at that address saying that the defendant didn't live there and they didn't know the defendant however agents had not come for him that it was the defendant who had filled out those forty four seventy three forms and as well so are you still arguing that there was no probable cause we our position is the probable cause is that the agents weren't sure at the outset we're not saying that there wasn't probable cause but that it was close and reasonable minds can differ at that time specifically in terms of you needed to have probable cause to detain him right at the in the context of  border stop when somebody is entering the united states that's not something that we briefed and i'd be happy to address that and supplemental briefing of the court would like us to address that but it's going to be a much lower standard terms of stop and seizure and usually in terms of  detention we're talking about r s to detain and then but he was detained for two hours before he was questioned right correct so you're not arguing that wasn't a detention are you i'm not arguing that that what no that was a detention that's correct what was like this argument that you didn't have probable cause a very odd thing for you to be arguing well that's not really our argument what our argument is is that there wasn't going back to the standard that there wasn't room a well substantiated charge that's the standard that we're dealing with we're not dealing with the standard of probable cause that was something that was picked up on i guess in the defendant's reply brief but our position was that the charge is not well substantiated considering the evidence that the agents had before them and also considering that agents later found out that the resident at that address had been dishonest with them about portions of the statement they found out that they knew the defendant and as well as his father because when the defendant was in high school and living in mexico the defendant's father paid that resident are the resident at the address to use the address so he could attend high school in the united states and that's the point in terms of it's not so clear cut so if there was no probable cause  substantiated or a well corroborated charge and that was not present at that time probable cause is going to be different as to whether or not the charges will substantiate what's your case law for this well substantiated this other standard  a relevant standard that's in united states v kim i said in my brief it page twenty eight and specifically within that case at fourteen thirty five that's when they're going through the progression of a very do go very do go and kim it talks about vandermark where they refined the standard that was set out in verdugo and talked about how it only applies to blatant illegalities committed in pursuit of compounding an already well substantiated charge up and he signed the form stating that he was willing to speak with the law enforcement officers and did so there were statements made about whether or not it was a formality and i'll submit to the court that that statement is not perfect but it is also not a statement that misrepresents the significance or invalidates the miranda warnings and the court made a similar finding in united states b holmes where officers refer to miranda rights as a technicality and there the court specifically made the finding that referring to miranda rights it's a technicality did not misrepresent their state did not misrepresent their significance what about in combination with telling him that he's not in trouble so they say you're not in trouble i formality i mean aren't they basically telling him he's not really waiving anything by signing this form by making those statements no your honor in terms of the not all what was the point of making those statements the point of making those state well when they asked him whether or not he was in trouble  they've got to give an answer their answer was not perfect but their statement is that because and considering the evidence they had there were a number of things that could have happened during that statement where we find out that he actually does live it that th address the residents are lying and there's no charge to be had in terms of the forty four seventy three so it really does remain to be seen whether or not he's in trouble at that time and when you consider both of those statements when you compare it to is the defendant's characteristics the fact that he was studying criminal justice in the totality of the circumstances those two statements don't negate his waiver of his miranda rights that he gave on that on that written for well most suspects yet you arrest based on probable cause that's a standard deliberately lower than what we would need to prove up to obtain a conviction at trial that your argument seems to suggest so any time a police officer arrests a suspect the police officer can give them miranda warnings and then immediately try to dissipate the warnings because it may be that there's not going to be enough evidence to establish proof beyond a reasonable doubt so it may be that  the prosecutor won't go on or for some reason even if it goes to trial that on obtain a conviction but answer the question am i in trouble or to suggest that nothing's going to happen to you seems to be well short of conveying to the person in custody of what the actual state of affairs is and i can only see the point of that statement is being intended to dissipate the impact of the of the warnings is there something i'm missing well if you look at the agent statement  later on in the interview after the defendant admitted that he was the one who had filled out the forty four seventy three forms and had some additional information when the defendant asked again you know am i in trouble the agent said well yes you have  admitted that you've committed a crime and at that point it was clear that he was in trouble it was likely that he was going to write for the warning then though isn't it i mean that suggests that something happened in between so the agent gives a different answer than it given before because at that time he knew but at the at the outset of the interview when he gave that statement that he was not in trouble well it wasn't a perfect statement i don't think it was intended to misrepresent i guess misrepresent the facts to the defendant and that they had probable cause to arrest him right i think reasonable minds can differ as to whether there was probable cause but it was close i think that some judges presented with these facts would issue a warrant based on those facts others would say we need some more information have you talked to the bill are you relying then on this being at the border i mean it now sounds like you really are putting all the weight in the fact that somehow that he didn't they didn't need probable cause to arrest him well i think arrest is going to be different that's not something that was asserted by the defense we're not talking about did no a review of a fourth amendment issue or de novo review about this amendment issue we're talking about whether or not it can be considered for the purpose of sentencing the defendant didn't challenge this prior to pleading guilty and that was based on their position that there was enough to convict him without the statement they only charge they only challenge the admission of the statement at sentencing because they didn't want it considered for the enhance but you don't think it matters whether it was a proper interrogation when we ask that when we try to answer that question it matters but that's not an issue it matters and i believe that it was a proper interrogation but that's not something that the defendant had mr brown stated that mr perez a sentence this is a defendant who is in custody at the port who has been held for questioning by a t f agents this is not a situation where border patrol is just talking to somebody at primary inspection refer to them to secondary inspection this is a case where somebody has been detained and held for questioning the government is now saying well there's may not be probable cause in this case those are completely contradictory arguments and sentence which with the district or did not know at the time that the government's position was that there was no probable cause to arrest mr perez and there is no question that he was and how does that impact the factors as to whether the sentence should be enhanced well your honor and to make my argument clear i apologize it doesn't affect the enhancement it does affect the district court's discretion to impose a sentence a district court can take into consideration the government's actions in a case in deciding whether to to give a sentence lower to to defer down at that point the defendant could have argued you know this whole thing is tainted because my arrest my detention at the border was really in but it was without probable cause could have a challenge to the admissibility of the statement of as you know that came up because there was a guilty plea i'm not really sure what there is for the district court to pass on here if now we might decide that we ought to throw out the evidence upon which the guns and hands base but what discretionary element i just missing something i think your arm over my time if i don't understand that i've taken in there ok man bites dog ok here we are argument was that there was in fact substantial evidence enough that they actually they knew that they could get a conviction in this case the probable cause if she was an entirely new issue we never challenged it because we we didn't believe that that was the case but now we have a case where the government is asserting that it didn't have probable cause or maybe it didn't have probable cause and that is something that the district court should be able to know when it decides what the sentence should be for m