light yellow light comes on you have two minutes left when the red like comes on we ask you to conclude your argument as soon as possible and less here answering a question from the court we have also read the briefs and the record excerpts we may not have gotten into the entire record before argument so we appreciate record citations where those serve proprium first case in the morning is number afternoon set seventeen four o five seven seven u for creating a risk of serious bodily injury or death by that but the government's own testimony by the government the heart of their evidence was there were lots of cross into this by illegal aliens and numerous occasions of this particular channel oh yeah that's a great yes this will because it is dan brown yes ma'am in the in fact they say my recollection of the testimony is that it's frequently used because f you gotta know if you went to an area that's closed down by the rio grande to the bronx so it's a fairly long tale so you have to go because it's frequented on numerous occasions and that's why i would submit to the court because once you need about these two provisions these two and one is not a lesser included via the discords where the frequently they say if this intimate or plies that one does earth that it has mobilized this one does both of these can clearly apply in fact you see them frequently it's always been my opinion i think this court's made this clear not structures to us respectfully the guilt innocence if i were to prevail on that as i understand the law and i i would first of all have to show an irrational verdict it's plain here because there was no objection on the guilt innocence it's getting worse it gets worse because he got eighty months with a death the maximum becomes as i understand it is now lifted up to life without the death i think a look at one hundred  twenty months i put it there because it goes naturally along with this guideline but i think i need to be aware of the natural impact of that even months is pretty low for it for this circumstance i'll only when these fellows  you know when they're driving a truck and if it collapses or or rolls over something they get a lot longer sentences it just i would know two things two circumstances that are there with respect to that the one that the court is probably well aware of that disc over the first occur is the we have to calculate the guidelines correct we cannot assume i think at this level it's this court of stated we can't a history how would the guideline not apply when his defense closing said to the jury it's completely dark on that channel you can't even see ten feet in front of you how could that not be a risk of bodily injury whether boats have understand i think to be fair i mean to go at it as if it's any large vessel out there but i don't i want to keep this rhetorical i don't want put me in i've never seen a freighter but it why does it even matter they didn't have a light if he gives her a little that itself creates an extraordinary risk and one of the reasons that i started with that will statement it unless they said not did the problem with the song is that it worked really is the type of risk that's put at home is a very low standard they're both very low but this one case has this unique aspect well let me to let me just comment that we  we have a i don't know what the noises i must be outside but we have cases where we have approved enhancements where the elland simply weren't wearing seatbelts find that this is a factual finding shielded by error with some kind of standard of protection for the trial court's decision and it's very hard to overcome it we're certainly not will where we got to go a good distance but here's the deal i would submit to when you look at all those cases since most of those cases involve the highway most of those cases involve over too many people yards wide and we don't know for sure that it was as dark as you say could have been a moonlit night is and you can run across a road but apparently that region is paddling look both ways i don't see any light i don't hear a car coming suddenly some idiot in your car's out there that can go this fast now it's going hundred eighty miles like to now that to dangerous highway and  i have eating to deal with the sunni at risk because i was treating things the way they normally don't get in guests i am arguing that's the way things are normally in a shipping detail if you're going to go across one if you have time to react if ships are doing what they're supposed to do and i think you'll at least i'd like to  at the twenty fifty five waiting to happen not my by the way the p s r says they had the lights off and that when you first read that i say that's consistent with the testimony i'll read the page or two from and they were asked the lead agent was asked what are the standard view is clear the standard of view is clear what's your best case if you have them where a circuit court has reversed a finding of risk of harm ok if in fact our litmus test is bad there it's in like i said the way this has been does serve to preclude liability in situations where the causal link between conduct end result is so much in you waited that the consequence is more aptly described as mere for you that's purely and that's client one of the things that i also want to know and this is in regards to just so that it's clear because like two hundred warning this represents something that i understood in the record display briefly the homeland security agent in all that and he said i'm not saying that it was the cause but they listed certain factors do you remember sir c b being listed i was made aware that the boat was accelerating and that's the word of concentrated throughout is the word was i think if you look at the testimony of one of the porch officers he said that there was some alien traffic at the port but we want to this was an app the port this was farther down the ship channel and just anecdotally i did talk to my trial you say and he said it's because in ten years in the job i have never seen a case where an alien was funny across which was shipped out so i did ask our trolley would say down to brownsville he said it does happen some but it's much more common that drugs are transported across the river in that area it's just anecdotally is there any part of the river where they don't come across the river or the channel you know it's just i and it kind of depends on where they have ascertained that most law enforcement activities going on so they'll go somewhere but i mean the whole instantly fluctuating a whole about a whole area is fair game yes and then across here they had to cross the river and then they walked for four or five hours and then they swam across or attempted to swim across just shipped out so you got two different bodies of water you have to cross in the that area which makes it that much more difficult on the issue  now at that point it seems to me just common sense that there are two risks when you jump into a busy ship tunnel and this man he had worked at the port and he lived at the shrimp basin which is a little area just to the north of there the ship  were both were recovered so at the point they jump into the channel there are two very first see a ball in very common sense risks one is the risk of drowning and the other is the risk of being hit by some type of vessel while you're in the ship channel and both of those things happen to this latest maybe an elemental question but does the risk connection don't connect at all necessarily to the outcome let's say same exact facts but then the lightning hits her and she does and has spent i think that  are things that could happen that might not fall within the parameters of the guidelines but i think it would have to be something really out of the blue like a lightning strike you know what if she lets go and drowns well i think it's very forseeable that somebody has got a look as it happens with these enhanced with almost always happen in this type of danger circumstance i think so too as as again allister's just something that is completely out of the blue i think yes i think and i think the very language of the statute because it doesn't the error of the guideline it doesn't even talk about result of causing it says if any person died as a whole i think we are at that for causation is are some outer limits of that conspiracy was was to go down to the western union tout you know office and pick up the money that people had sent for the alien smuggling and she had nothing to do with actually dealing with aliens and one of the aliens died out in the brush in august and what was it and i don't know if it was coming into the port or going out of the port that was not clear to me on the record just that they were out there and of course they patrol pretty much twenty four seven along light and get away yes i mean you know they are also emergency vehicles they help you know boaters in distress all along the channel and out only out of the gulf so you know it's not it's certainly not unforeseeable that one of them would have to accelerate quickly overcoming going back and forth looking for something they recovered one of the slow days but they did not find the lady he got the lesser sentence because but for his disclosure that no one would have caught it that was that is w again we don't know they seem like they jumped in to gether at some point he said she was ahead of him about eight feet but yeah he got bumped also he said it he got some type of injury to his arm there they were fairly close to he's not pressing financial gain the jury had a question about financial gain they did your honor they i didn't i didn't couldn't see what the answer was i think they just referred them back to the jury instruction i think the jury instructions said either financial gain of him or another person does that look correct with the statute could it be just financial gain to another person i know that this court has held that if there is financial payment to one to one smuggler that supports a presumption that all were being paid all the smugglers and of course we have a lot of evidence it's simply wouldn't make sense for somebody like because otherwise it doesn't matter  anyway i just wanted to again just emphasize that this was very foreseeable when you jump into a busy shipping trial in the middle of the night you know two arrests and that both of these arrests happen to that lady and fort