apparently misunderstood or misread it as an example cases that were cited regarding the possibility of relief when a non citizen has a crook distribution connection and there was a contradiction between the two chords orders  findings so at the very least remand is appropriate but i do believe based on the record before the court that the ruling can be reversed our right i'd actually like to start maybe a bit unorthodox though with what i'll call the cross  held in that case the immigration judge did air in finding we on how it was not eligible for two to also be released because those changes had not actively and after time he was convicted he was eligible  honor yes that is the difference in that the government relies on a case where a defendant was not eligible and in a subsequent change in the law maybe i'm possibly eligible here the defendant was eligible and a change in the law that was not  never retroactive and the intervening decisions that that was not outstanding equities what was the error there your honor i think there is of the court specifically said that we only cited one a showing the distribution into twelve serially for compatible when we in fact cited three so i think it's fair to say the district court did not adequately consider those cases and that argument because it's only one we cited actually three in our brief involving distribution  thank you your honor is richard burson representing appellee united states in this matter may it please the court i would like to start out by sort of framing the question that the district court was answering when it issued its order because the question for the district  not whether it's plausible that mr lantos morales would have been granted to twelve serially even as a rule hearing is whether mr landor is morale is has met his burden to show that it would have been plausible that he would have been afforded relief at his removal hearing and here the district court had before it from pretrial services and from the government which the government had pulled from the defendant's immigration file a pretty serious criminal history including just in the immigration history alone several instances where the defendant was apprehended while smuggling people across the southern border attempting to  so he was according to the histories before the district court using various aliases one of which he was still using in these proceedings all know one of their or utilize fingerprints from prior arrests and make comparisons throughout the database immigration uses a similar system and so all these records were obtained directly from the defendants a file that has  and some of the records were quite old there was also as noted in the district court order some some cross use of aliases at the government's excerpts at page eight there's a picture on one of the apprehension records that and again it's dated picture but i don't think there's any mistaking that it is the defended pictured in that report compares quite favorably to his the picture on his current pre sentencing report even though it's from to meet his burden to show plausibility never disputed these accounts he never disputed that these were his his his actions or his convictions or his immigration record the defendant submitted a declaration below he spoke about having lived in southern california around the time that most of this was occurring spoke about his life there is work history there never once did he say but but according to the government i was smuggling people across the border that's not true but according to the government i was being deported that's not true and the defendant had an opportunity to dispute this record and he never did which give it especially the cross the cross use of aliases the picture just kind of left the district court with nothing other than to find that this criminal history and the immigration history was indeed the defendants so the district court did not clearly err in making that finding and i would like to address what  wrong in the district courts in the district court's order dismissing indictment of the final order of the district court does make references to their criminal history  in the united states came to an end that's not an inconsistent statement that's not referring to criminal history as referring to the fact that he did have a lawful status in the united states he had a lawful permanent resident card and that that phrase lawful  to see eligibility it's not referring to criminal history and in the district court order it puts the word lawful in quotes and i think we all know why the district court chose to put the word lawful in quotes when it otherwise had no reason to is because the district court itself was indicating that yeah his immigration status united states of lawful is his lawful permanent residence and yet to be revoked by immigration or by an immigration judge but  i think that just records indicating with those quotation marks that the record shows the only evidence in the record at least shows of the defendant was engaged in criminal activity during most of that time and again criminal activity that the defendant has never disputed he's never once said below this wasn't me immigration has it wrong this is mis identification i wasn't the one responsible here and in the face of these records without at least making a statement that this isn't me i don't know how it is the defendant could ever of show that it was plausible that he would have been afforded relief by the immigration judge if the immigration judge hadn't deemed him comparison person for comparison reasons to show that it was plausible he would have been afforded really st none of them had this this significant of a criminal history but even setting that aside all of these cases were as the district or put it possess y offenses yes they had a trafficking element to them but they were essentially a it was essentially a traffic l of element that had not been completed the defendant meanwhile as detailed on the bail report that the district court had had access to the defendant was part of a trafficking conspiracy in which transactions had been completed it was an ongoing conspiracy the defendant was an active participant in that conspiracy subsequently i believe the house was raided a large quantity of firearms and drugs were found so i do think the cases are differential from the cases cited by the defendant to establish plausibility i just don't think there's a fair comparison to be made i would like to address the statutory eligibility issue unless any of your honor's have any questions regarding the plausibility issue before i move on  thank you your honor so use the remainder of my time to address the statutory eligibility issue you know leon pas was sort of the exception to the to the general rule decision and really it wasn't until twenty years later that that the i j a would have been correct or sorry would have been correct at the time i don't think it's disputed that the i j a was applying existing law and is therefore the government's argument is that the pause when he pled guilty he was not even deportable burglary was not an aggravated felony and even if it had been an aggravated felony he pled to for sentence of less than five years and then subsequent to that is when congress dealt mr lee on pause sort of a double whammy in saying well burglary is an aggravated felony and also this on any sort of relief he didn't rely on the fact that his conviction was not going to make him deportable and i think really that's the differentiating factor here is that in both your and a they were on an error would have doubly erred because he would have found it deportable on offense that had not been deportable when he pled and ineligible for relief that wasn't even at play when he pled guilty whereas here versus ones with distribution elements there isn't a legally substantive difference for possession with intent to distribute versus completed distribution nd i believe judge berzon reference st cyr unfortunately sometimes it takes courts