decide that mr vii's incent offense commenced in two thousand and four so the district court ruled against mr vajpayee on both a legal ground and a factual one but as i understand the government not to defend the legal ground i'll go directly to the factual one unless the court pricks me otherwise so there's two avenues to remain and in this case on the factual question the st is that the district court committed error when it found that mr vajpayee had lived at the same address for the entire period from one thousand nine hundred to two thousand and seventeen now we know from the redacted documents that that can't be so because under their feet because that unredacted documents show that there were multiple zip codes involved and so clearly he couldn't have lived at the same street address that's even more clear from the unredacted documents that are the subject of the motion the government claims that although there were different postal addresses that was in the same city as we're talking about within the united states for our purposes does that matter well it doesn't matter your that does tend to suggest that he had a very stable residence and that he was probably continuously residing in the united states if it doesn't the fact that there were difference he dresses doesn't mean that he couldn't possibly have been in the united states in the same time would simply have a different import than the that the district court could not find that he continuously resided in the united states but if plainer applies i think it's clearly met here in this case as the government agrees even on the redacted documents it said that the district court would make that it would be obvious that there were different street addresses because of the difference of codes on the question of where mr by a substantial rights affected i think they were because because the import of the finding that the district court made would have had an outsized effect on the fact on the conclusion that he resided here from two thousand and four to nd really i know that for sure they do we i mean i think if we agree with you on this argument we would just need to remain for the district court to reconsider wouldn't we so the the court certainly could court to reconsider this it doesn't seem like agreeing with you that the district court made a mistake about the address obviously means that he wasn't continuously here such that we know for sure his substantial rights well so i think that brings me to the nd argument here which was that this was a tenuous factual finding regardless of that factual error right so the district court we would say erred by finding that he was continuously present from two thousand and four to two thousand and seventeen regardless of that in the state that's true because the government bench warrant does tend to suggest that he was not here now with none of that direct evidence that he was actually present at any point between two thousand and four in two thousand and seventeen the district court instead relied on his general desire to be in the country or his general desire the general difficulty of crossing back and forth and this court has said that that has that inference has some weight for example in garcia jimenez the court said that we're talking about a two to three year period and there are only brief gaps in the record between employment records and jail records the court can say well to cover those gaps although we can't say for sure he couldn't possibly have left we're going to say in the general desire to be in the country covers those prefabs this is a much different case right this is a thirteen year gap where there's no direct evidence where there's no reason to think he was in the country we also know that he did have some ties to mexico right the records reflect that his parents lived in mexico i assume his parents would have been aged by this point he was thirty five or so we know that he had lived in mexico until he was about thirty years old and so it wasn't as though he came here is a one year old child and would have had no ties to mexico he came as an adult so where there's no direct evidence  ever it was in the i'm sorry no direct evidence he was in the united states for those thirteen years and where he has some ties to mexico i do think the inference is much weaker that what you can draw from the fact that he simply may have had it  is our position and that was the government's position below on appeal they say that they would only have to find by preponderance but i think that simply isn't so this or that assess of the contrary jordan says of the country and it's based on the the impact of the finding not on the nature of the finding this would have had a four to six time right without this guideline finding his guidelines would have been six to twelve months instead they were thirty seven to forty when we think about this question can we assume you lose on the other question and you still win on this question so i think so i think if the court if the court agrees with me on that point the court could say that regardless of this error that even if the court had made the proper factual finding there was not and if we assume you have the same address the whole time that wouldn't be enough is that your position that is m well if we know he didn't have the same address right so i guess we know that at least there were two addresses so i don't i wouldn't ask the court to assume that he had the same address the entire time but i think regardless of this of this error that is just convincing evidence under george yes where he was during that period based on collateral data is it proper to say that if we assume something based upon what the government does that that's not enough to meet the jordan standard i mean i don't know that i don't think you need to go that far i think what it is is that the inference in this case is not there all right so i don't know that it could never be the case that there could be indirect evidence i think garcia  somewhat indirect evidence to feel very very short gaps it didn't support of a finding of a thirteen year gap with no direct evidence if we agree with you on this and think there was a clear and convincing evidence do we really matter do we you just win and he doesn't and somehow we instruct the going to be lowered if that if that's true then i think that he should just win right so there's case law out there saying that the government shouldn't have a chance to nd come up with other evidence right that the government where were an issue has been fully aired below the government doesn't get a government may please the court laurence cole the united states representing the appellee your honour's the defendant the district court did not clearly air in finding making a factual finding that the defendant continuously remained in the united i'm sorry are you agreeing now that the standard is that sorry if it's clear and convincing your honor we still maintain the position we took in our briefs on appeal that the court because this is a fact that relates to the charge conduct that it would be proper to decide if i ponder its but the court really doesn't need to reach that issue because judge selma unlike cases where that was a potentially a problem he didn't decide by ponder and he decided certainly by clear and convincing he actually found beyond a reasonable doubt so there's really no said that once but he said kind of inconsistent things didn't he i was concerned about that during the sentencing hearing and so i asked him specifically to make sure that he was not saying that the factual finding was by preponderance and he said i think if you whenever he the fact that he came back and never left there's no evidence that he ever left he kept when the government forcibly removed him that every time he was removed he was removed twice both times he came right back quickly to the same city where he had a wife and minor children so what does criminal algorithm just what we're talking about other words of if there's a pattern and that proves that it's worry is that what you're saying it certainly provides significant support to make an inference by which that can be proven especially when there's no evidence to the contrary as here and that's what this court found in our c n n s there although admittedly that was a much shorter period there's no question it was a much shorter period but the key thing is when you compare that case to this case even in our c n n as there were long periods of time where there was no evidence as to where the defendant was six months that this is the government's burdens a criminal case and the government has to show that each of the elements is met and it seems to me that there's a big gap here and you've got all these little assumptions you say well you've got family here he must have been here you don't prove it he must have been here just because that and in the past you come back is that enough in a criminal case definitely your honor in this situation because there is no caught there was no contrary evidence and the government that's not his burden is it no not at all certainly not it was the government's burden but that burden was met by showing his repeated return after being removed consistently living in the same city having minor children here everything showed that he wanted to be here not in mexico absence of evidence that he had ever laughed as one of the factors that he considered in some in that supported the inference that he had not left as this court said that the government demonstrated that he had no reason to leave the united states during that time and i would be illogical for him to leave because he would subject himself to the risk of not being able to come back that's the same here that sounds very much to me like you're trying to shift the burden the absence of evidence that he ever left why would the government ever produce evidence that he left when they're trying to prove that he stayed well your honor i think if there was one would that evidence ever come to the district court if there was evidence that he left that i think in this situation certainly would  favorable to the defense and the government certainly would have had a responsibility to produce that to the defense and i think the government in that situation would not be acting appropriately if it knew that there was evidence like that and the defense didn't come forward with it and it was arguing this this court to find a district court that is should find he never left i don't think that would be the government the government you garcia him in is but in that case if i recall correctly the government had evidence that he had been in prison during part of the time that it was being actual data that shows you there that stress here you've got this vacuum of this what is it a fourteen year period for a thirty year period when it just there's nothing there just the presumption that because these families children there now is it is a human thing i get that i understand that but as you very well know there are a lot of people who are in mexico and other places that have been removed from the country that would love to be back with their families in the united states and they can't do it and most of them don't because they don't want to go to prison so i'm not sure i buy the idea that just because is family here that automatically that satisfies the government's burden while your honor in the situation that the court mentioned those are the people who are out of the country this is someone who there's no dispute he would back here in two thousand and four under the fence concede the only question is once he was here did he decide to go back to mexico without any legal way to come back and take the risk of not being able to come back and and the argue and and all the court use the word presumption i would not argue there's any presumption and certainly not trying to govern is not trying to shift the burden merely were arguing that it was an inference and just like in garcia and then as it is a reasonable inference and because the standard is clear error on appeal the defense has to show that it will be illogical or implausible or lacking support in the record to draw that inference but the deferential standard and judge someone looking at this made that conclusion the same conclusion made in garcia i'll be it over a longer period of time both prison correct but again in garcia and then as with all that certainly true your honor there was there were two periods of approximately six months that were completely unaccounted for in that case obviously that's almost a year worth of time somebody easily could have left the united states and gone back to mexico during that time so the point here is although it's a longer much longer period of time that there's nothing to show that he left and the inference that he would want to remain is a strong one based on his prior conduct his shown desire to be here children here and residents in the same city you've got i'm wondering whether the fact that the judge seems to have thought that this issue didn't matter at all taint the analysis of the issue because the judge seems as thought that it didn't matter whether he was continuously here or there whether the government need to prove these continuously here so i just wonder whether that kind of colors that discussion then that follows the court it sounds like is referring to the in this a legal conclusion that the court made i don't think the record shows that i think the judge selma after saying that went on to describe in detail the reasons why he thought that the facts will finding was still properly made and laid that out in detail and i think conscientiously went over that and certainly during the hearing that was more of the focus was on the factual part that was really a lot of discussion on the on the legal point but he was i we do at this address  issue first of all your honor as i think it's not necessarily clear there even was an error at all i think the fact that the defense didn't even raise it during the hearing she shows that the parties all understood that to simply be sort of a shorthand or an efficient way of referring to the same city but does it really make sense i mean i guess i've never heard anyone say you live at the same address when they mean you live in the same city at a fair point your honor but i think then you go on to how is that to be reviewed was it as we argue in which case the defense would have to show that it affected the outcome but even if not it's still the subject of harmless error and the court there the district court cited it was only four words that that referred to the address in the court's ruling it mentioned four other factors in addition to that the clear pattern of return after each removal on the strong inference that he wanted to remain in the united states but there was no evidence he ever returned to mexico and that he had family here so the address is just one small part of that so i think it's a clear from the court's finding that although the court did point that out if it was an error and the court did actually think that it was the same residence that there were many other things that the court was looking at in addition i would say on the address issue the defense in their briefs argue that that's a was essential thing it was critical that it was the same address and i think that's really correct when you look at the question here the issue isn't did he live in the same house the question is did he want to stay in the united states and leave left and whether when he was in santa ana he happened to choose to move to a different house or a different apartment at different times doesn't really show anything about whether he wanted to pl show that he was gone for a year and then came back and had a different address right i mean there is some well reason someone might have different addresses and in fact there's a very good reason here two of the times there he was removed from the united states and it's important not to lose track of that to the times that he had those different addresses were after his removals so there's no question he was gone then which is a different question from whether he was here later from two thousand and four to two thousand and seventeen when your time is up there or my college of physicians question nothing i'll speak really briefly to the other points right so that the government talks about the other bases for the district court's finding but i mean when we the district court talked about the pattern of return two times there were only two returns that's barely a pattern and notably after the two thousand and two return he didn't return for two and a half years or at least that's the next time he was known to be in the united states as for family there's no record of the family situation after two thousand right that's the last time that there's any of the information in the record as to whether the whereabouts of those individuals whether the family remained intact whether we know that mr vice wife with the mexican citizen whether she herself had issues there's simply no there's no information the record about their whereabouts or the situation after two thousand and then the other two are really just think garcia humanise factors the desire to remain in the country and the difficulty being here i've addressed those but i simply think yes to cover brief gaps of th four months a week here and there sure but as as time goes on that inference simply becomes weaker when you have ties in mexico the chances that you have a family member who has an illness there's a wedding there's a funeral there's the kids and you know there's some other reason that you're going back to deal with family