increase of the maximum prison sentence from two to ten to twenty years subsequent if the defendant was deported subsequent to a prior conviction now  and it's date must be alleged in the indictment under united states versus cotton five thirty five us six twenty five two thousand and two and prove beyond a reasonable doubt to a jury under book no idea what date of deportation the grand jury relied on nor what date the pettitte sherry at trial relied on the government at trial presented evidence of multiple for of documents of immigration these dates or that the government was able to prove beyond a reasonable doubt any one of these dates to the grand jury because of the salt in the indictment mr best sentence cannot be allowed to exceed two years now the jury and again because the jury was presented with documents from multiple states spending over a decade over a decade of time it's impossible to know what date if any the jury found for the date of deportation third the dat the government alleges that any error in the coding area was invited however such error was not invited here because the date of deportation was not alleged in the indictment that mr that's real had no notice that the government intended to seek  because that even because we don't have a grand jury transcript we have no idea what documents were presented to the grand jury and what date of deportation if any the grand jury relied on in finding that mr bastable could be charged of his prior alleged convictions and arrests clearly any immigration history is a law enforcement contact mr besser all meant to preserve his objections generally has a pretty objections as well as his sixth amendment objections to all of the law enforcement documents that the government intended to use to calculate his criminal history at sentencing had sufficient to avoid point in their view well your honor i am with a yes or no it would this court's decision including sound of all did hold that the date of deportation is an element of the offense of the thirteen twenty six for purposes of being able to increase it under thirteen twenty six be a failure to allege that then limit all maintains that his objection generally on a pending to all of the facts of his prior law enforcement contacts and his objections generally to the facts being presented from the immigration documents should have been sufficient to immigration order from one thousand nine hundred five they did not present and sounds like your answer to your purchases question is that there was documents offered by the government your view they weren't sufficient correct i know that there were got while there were documents immigration documents presented by the government to prove up i deportation there was there were not enough immigration documents to prove up the date of anyone deportation because the immigration documents presented came from multiple aligned it may seem inherently unfair but that's just the way it's been for the last twenty or thirty years any time a new principle of law comes out if an objection isn't made that's just that's the way it is because we also want to make sure the defendants don't get away fall here but i believe that the reason this objection is hard to describe a windfall that is the proper application of authority that didn't exist at the time a trial that happens all the time that's one small and windfall well if your hon brought that up because i think defense counsel's painted a picture here that there were all kinds of data thrown out there it actually was very clear here on earth the robbery conviction issue here is nine hundred eighty six three separate documents were introduced to trial these are standard so the the only proof that was before the jury in the form of documentary evidence was that the removals were after the robbery conviction absolutely and the indictment charged briefly i just wanted to respond to the government's contention that mr best role is somehow cleaning the nonexistence of the post nine hundred eighty six removal that's absolutely not what mr mesereau is maintaining he's maintaining that the government did not prove beyond a and while that document may have been dated two thousand and five the immigration order on which the government alleges it was based occurred ten years prior now there's nothing to show that that that document necessarily was linked to the immigration government now contends that they can correct that deficiency in the indictment by relying on facts presented at trial and that's absolutely not proper here because mr best to real