as provided by section for a more important who of the sentencing guidelines the only evidence on the record that sheds light about whether such an arrest occurred or somebody is incarcerated or not now the probation officer was at the end of the sentencing hearing heard on the matter and she correctly refocus the matter back to the circumstances of her de laps on the required explanation as to whether there was an intervening arrest for not it's even more notable because on the merits everything apparently you could not hear r c s well you were talking so i think there was a question or two i had had one for you we did hear you i'm sorry deems to be that when he appeared in december for the court to answer for that st domestic violence charge it appears that he had not been arrested that in some fashion he just good morning judge chaotic a name is david bornstein and i am representing the united states good morning go ahead may it please the court this court should have from the sentence below for three main reasons st mr miranda conceded to the district court that he was arrested after his st domestic violence offense and before he committed his nd one judge had as you pointed out that concession occurs on pages seventy eight and seventy nine of the appendix nd mr miranda may not complain that the district court focused on whether he was arrested in relation to a nd offense because he himself directed the court to that issue as a relevant point and rd world like to spend most of my time is on the merits the record plainly supports a finding that mr miranda had an intervening arrest between his st and nd offenses st as a ready noted he conceded that back to the district court which was entitled to rely on it nd if you look at the judgment of conviction that was entered on think about weaver in this context so the there is records and they exist so what happened they either are unclear or they're clear and the characterization of the custody that occurred as i understand your opponent's suggestion is that the mere fact that he's in custody doesn't show that there was an arrest within the meaning of the guidelines because that's a consistent with your focus on the merits so i guess i'm just wondering whether the characterization of custody as a rest really could be oaken session when there just is a record saying what one there was the fact that if you look at the st sentencing transcript which is the may nd twenty one thousand proceeding he started out by saying that he was not arrested with respect to the st offense but once we had filed the paperwork from the state court proceedings  at the main twenty night sentencing proceeding mr miranda changed tack he then admitted that he was arrested after his st offense and that he was in custody when he committed the nd offense we believe that because he correctly identified the issue of whether or  custody and as this court noted in united states versus kelly which is a twenty one dollars case of yours it can be found at sixty one f rd six hundred and eighty two being arrested is simply when you're taken into account when you're taken into custody and because it is undisputed that mr wrenn was taken into custody with respect to his st offense after committing it and before committing the nd one there was an intervening arrest and as i was stating earlier your honor the twelve which was not only the date of his offense but the date of the probable cause hearing where probable cause was found for that could for that prosecution to move forward under rule when eighty two of the puerto rico rules of criminal procedure the district court in that his client mr miranda was released on bail after his st arrest or i should say was released on bail after the probable cause hearing on december th two thousand and twelve but there really is no basis for that idea it comes from the p s r but the p s r was simply reflecting what the probation officer found in the record of the state court documents and at the end of the may nd the st sentencing hearing the district court ordered probation to turn those documents over to the government so that we could provide an english language translation and we submitted in documentary ninety three those english language translations and then provided in the appendix and if you look at  dollars which is the relevant page here it clearly states simply that mr miranda was provided the opportunity of bail that bail was set in the amount of eighteen thousand dollars but it does not state that mr miranda actually made bail and so i believe that inference that he made bill is contradicted by the record again because he's president for time served dating back to december th two thousand and twelve showing that he had been kept in custody from that time for meant was i was arrested as i was brought into custody with respect to the st charge again looking at us versus kelly that is precisely what an arrest is and all that he was doing was quoting black's law dictionary and in any event i point out your sentence for the reasons we provided thank you that concludes argument in this case attorney novus and attorney paunch thank you should disconnect from the hearing at this time