trial were making a separate claim that the theory or to allege this essential fact the date of the partition in the indictment makes an increase based on that date prohibited under the fifth and sixth and then  above it doesn't matter what the jury necessarily found there was nothing for the jury to ratify based on the defect in the indictment and otherwise because the grand jury didn't make a finding as to date it doesn't matter what number but that's not necessary it wasn't in the indictment it was like you want the jury to find that fact i know because our point is if the jury doesn't make any finding as to a data deportation you can't have a sentencing an a specific deportation either before or after the judge can't make that final under colby and and it's analogous to for example a drug kicks same drug case the government just alleged a detectable amount of marijuana we would make a challenge for an erotic story of how much we would if the government then tries to increase the sentence above the maximum for just a detectable amount of marijuana we would make our jackson based on the indictment say the maximum penalty required for the defense counsel or the defendant to make any objections prior to trial it's just trying to make those objections a sentencing when the government is now trying to increase and it's based on something that wasn't in the that indictment last the grand jury has alleged deportation after or found a deportation that's after that prior conviction he can't make that finding as to when the deportation occurred that is the illegal determination by the case and again it doesn't matter what the jury found or what was presented to the jury we don't know what if anything was presented to the grand jury meaning the government could have gone in this case and just said if there's something essential to the conviction there's something essential to the sentence it's necessary that it be in the indictment what about martinez rodriguez martinez rodriguez didn't address this issue specifically as deportation all the records holdings from that our couch did we hold the jury necessarily found that beyond a reason without the date of deportation martin important relationship is callous in terms of the prior conviction meaning what was argued in lopez was the the it wasn't the prior conviction wasn't proven to the jury and what lopez conviction does not have to be proven to the jury but the date of deportation does need to be alleged in the indictment and again lopez doesn't count that doesn't even purport to decide that the grand jury issue that's presented not addressing a charging what happened on the charging air because that's not what the supreme court of washington did they just address the sixth amendment claim kind of defend the convicted under thirteen twenty six without showing that he had previously been deported now so it has well without the government showing in previously deported no right ok so so are you saying that that and that should be dismissed here or are you saying that the court was was prevented from giving him any greater amount of time because of any sentence above two years because thirteen twenty six a says deported and that's what the grand jury found they found a deportation to increase under thirteen twenty six b above someone has to make a finding that the deportation occurred after the prior conviction the grand jury did not make a determination as to the date of yes pending on how the statute is construed i'd say it could be both in this case as i would say the date of deportation is b is on the third issue that deals with these two year statutory maximum argument the defense raises this issue essentially for the first time on appeal no where in the district court it was th issue raved and i would point out to the supplemental excerpts of record at page five where the the challenge to the indictment was made in the district court level nowhere in part of the trial did escobar challenge the indictment in that it excluded that's necessary element of the data deportation so he serves that it's sufficient for up to two years but if you're going out and have to you've got to gone for his past since well certainly your honor in that the evidence that was introduced with was tied to that were movable to date the only evidence that was introduced during the trial and the only evidence that was ever given produce was regarding a removal date that was after the aggravated felony so it would necessarily be found by the jury once the conviction occurred absence of the special in iraq at torrey is that yuri's consideration evidence to the fact you know that well i would say yes you are under martinez rodriguez do you know where the jury is only when they find that the defendant was in fact guilty of a thirteen twenty six violation and this council points out it requires a deportation and in order for the jury to find that they need to address that issue removed in two thousand and five now what the defense characterizes it as a admission that he made a statement while the statement was that he had in fact been deported in two thousand and five so the re factual dispute about it they're correct there was no factual dispute and even when you stepped forward to further to the time of sentencing the defense never introduced any affirmative evidence disputing his removal they contesting the plainer while the defense argues for a structural error they never preserve the issue prior to trial and as a result of never preserving that issue prior to trial even under de bono it is reviewed for plane air and when you look at the plane error there is no plane error here the jury necessarily find it found the issue under martinez rodriguez there was never any dispute consistent with the covens animal decision where the defense actually raises this issue it's clear in the pretense report and it was it admitted by a stipulation before the jury even if the defense had not had in fact preserve this issue it's the united states position that in fact in cotton the court decided that the issue of whether an element that submitted from the enticement main fact be reviewed for playing here was decided and the supreme court said that it is not necessary it's not an automatic reversal to amend and it an element from the offense and in an indictment so you have that the supreme court speaking on this issue now we're faced with a situation where there is an allegation that there was an essential element omitted from the indictment house or the defendant challenge this by a motion to dismiss it should yes it should be challenged either well it should be challenged five five five a motion to dismiss prior to trial and if it's not a challenge prior to trial then that the review is plain air it's just it's just that simple and then you go to the next step what whether there is in fact objection ever so when that when the defendant in cotton had an indictment that just alleged the detectable amount of drugs he didn't object at all we have finally the government says we should challenge was nothing to dismiss at that point and to answer the one question on whether or not it's makes a difference between it's an element or a sentencing factor pretty frequent going all the line of cases treat them the same it doesn't matter if