my argument on the smalling is the issue of the  defendant's reasonable understanding of the pleading that was on and thereby be able to determine whether it make a factual determination in that regard and only then can you then go to the next step and see if there's a factual basis raises to the level player but it seems to me that in a situation where the issue was raised the general issue was raised to the district court before trial on the court was determining it and while the trial counsel didn't specifically asked for an evidentiary hearing you know the case law is pretty clear packwood in other cases that it's the district court's duty especially when there's a constitutional right at stake because the cases have held that the defendant has a only one question is there any dispute as to the fact that your client was in the united states yes because well i thought i thought he was arrested in the united states no no he was arrested at the border and that goes to the issue of there's a fine distinction of course but there is a distinction between attempting to enter which was the new charge and being in the country unlawfully  united states during supervised release doesn't say unlawfully return or attempt to return and this is just like the packwood case where the court remembers the language in the agreement was if the  he was trying to get into the country while he was on supervised release but i think that's a big difference was that even charged with simply a straight thirteen twenty six unlawful entry it would be a judgment of acquittal on a rule twenty because there's no dispute that if he hasn't made an unlawful entry if he had been charged with simply unlawful entry he would have been granted a rule twenty nine because there's no dispute he was not free from official restraint the evidence was he walked right up to the border official gave the disputed birth certificate to the officer and if i might add when i was preparing for oral argument and i realized i made a mistake not including this in the  he's pro per although with standby counsel the judge at the time of the plea never specifically goes over the terms of being able to have the charges reinstated more importantly at one point the judge we need is asked the defendant is this year agreement is there anything else and the defendant pipes up and says yes there's an agreement that the other charges will be dismissed there is no response by the court or the government that that's conditional in any way and so i think that's a a material issue that the district court should resolve in the first instance of the fact there's a material issue as to whether the defendant understood and this could be reasonably construed as a term of the reman that should be examined in the first degree now there was also an objection as to you know the issue we went around a bit before but i don't think that even comes up until there's a determination whether this is the government's right to reinstate charges even reasonably understood to be a part of the plead remit and so we think the matter should be remanded for the court to consider first whether there was any type of so let me just get this right the district court determined that there was a breach of the plea agreement and your original argument there the argument that was raised to the district court was at the jury should hear at not the district court so you're not i'm not hearing you make this argument interpretation of the plea agreement is my understanding that correct that's correct ok so is there a case that says the language unlawfully returned does not mean returning to the border and attempting to enter that's the principle of pitch a go in the whole series of cases there are cases as those words unlawfully return because you're referring to an interpretation of thirteen twenty six and that language in the plea agreement doesn't track thirteen twenty six right well i guess i would client arrested before he started entering the border or was he arrested when he went to the border officers he was arrested when he went to primary he was  and he was arrested shortly after the handover nobody you know when he was not under official custody as he entered the united states he was an official custody when he went through the gate to the offices  right no no i disagree in all the cases that look at lack of official restraint watching it it's assumed that you're under visual and otherwise government control when you haven't even made the any officer can have control over you or is and he had returned to the united states and you're saying that we should read into the plea agreement and not under official restraint but i don't see that in the plea agreement and you don't have a case that we need to read music or that's correct basis for the violation was the the new conviction and so if for some reason the conviction all conviction or vacated then that would have to be vacated as well there was an independent sentence imposed for his file ation of the terms of supervised release yes your honor because it was imposed concurrently with the sentence on the new case and even at the time of the supervise release violation he had already been in custody for more than thirty six months so it's our position that those thirty six months with no supervised release to follow there's no collateral consequences that would give this court jurisdiction to consider the issue and even if there were the defen only real argument is that the court erred by not agreeing to a continuance of the supervised release violation hearing until after this appeal was complete and decided but the law is clear that that it's that act that the defendant committed not his conviction and certainly not his conviction of held on appeal that is the operative fact for determining whether or not supervised release was violated turning to the issue of th process claim regarding the two thousand and eight charges the only thing that the defendant argued below was after the united states made its motion for a judicial determination was that this is a matter that should be submitted to the jury and found beyond a reasonable doubt the only circuit court that address this specific fact pattern the first circuit and gonzales sanchez held specifically the factual determination of whether a plea agreement has been breached lies with the with the trial judge and due process does not require a jury determination his argument now is not that it should have been sent to the jury but that the court had an obligation to su than the language in the thirteen twenty six statute it says unlawfully return to the united states not unlawfully enter the united states in violation of thirteen twenty six or even use the word entry so the whole doctrine of the official restraint turns on that term of what constitutes an entry into the united states and this court has held that merely walking across the border as this defendant did at the port would not constitute entry if he was under official restraint but that doesn't apply to the textual determination in this case of whether he unlawfully returned to the united states and then as to that there's no factual dispute that he did in fact walk across the border and approach the primary inspection was you mean physically enter the united states how can you return to those days without it or he just says he did enter the united states around and there was testimony from the inspecting officer is essentially outlining how the port of entry is set up and the way it works is the inspection booths are quite a ways into the united states it's not right on the border so it's a the fact that he even got to the point where he's handing over the false birth certificate meant that he was he was well into the united states at least as a physical matter you're your friend argues that being under video camera surveillance is an official restraint and there is video camera surveillance from the port of is or not there is your honor and i agree that if this were thirteen twenty six entry case it would be a problem that he walked that he only came to the port while under video surveillance  but that's not material here because he's the language of the plea agreement doesn't track the thirteen twenty six statute it's not a question of whether he entered as that legal term has been defined by the court case law it's a question of whether under the terms of a plea agreement he address any of the other seven or eight arguments the court has specific questions if it's bad do you have any additional questions what question do you use this judge told him to use a legal name just do that no your honor and actually thank you for bringing that up but i did want to clarify our position on that point in our briefing we concede that that was that there's no legal authority for the court to issue an order sort of a free standing order there is legal authority for the court to impose that as a term of supervised release and in our papers we ask that the court vacate the order and re manned so that we could apply it as a supervised release condition what i would ask now is that the court vacate the order but but not remand the case back to the district court this defendant is in custody for a believe another ten years this supervised release condition wouldn't come into play until he's actually released from custody and just for practical purposes so as not to bring him all the way from whatever institution he is here for the mets are named by then correct and we could always move you know ten years from now i defendant does he agree that just we should accept that and just delete it or should we just ask him when he comes up there i mentioned that we were slightly amending our position i'm not sure what what as to the breach of the plea agreement it just seems to me that it's fundamentally flawed when there's an issue as to whether the defendant is has breached and the court just summarily finds merely by the filing of the new indictment that that's sufficient to show that this term was breached that it was within the understanding of a pro per defendant and so we think it's essential for the back matter to be remanded for determination of what the defendant's reasonable understanding was thank you and was like you both for your argument this matter