same thing where the said crime shall have been committed in addition we have two statutes that govern the place of trial thirteen thirty two thirty seven a any district in which such offense was begun continued or completed and we have a second statute thirteen twenty nine of title eight any place in which the violation may occur the supreme court got into the act also in rule eighteen the prosecution shall be had in a district in which the offense was committed the court the question before the prints in the desert meet that standard because the agent knew immediately that this guy whoever he was was here illegally and by circumstantial evidence it seems obvious that it was mr galley on a floor and he was one of those group o get as id in his name and a number until they got arizona that's true so we would have to find that identification but that occasion means where he was first located and his illegal presence was known to immigration point of part of entry inside anywhere the circumstances were such as the agents knew immediately that these were illegals crossing in a group now how could they know that he had not turned around and gone back because they followed the tracks at that is until they actually find the guy they don't know that he's actually found him because the crime is extinguished if you go out yes but the fact that he was in doesn't make it a crime until they find and identify him if he goes out or they arizona didn't have jurisdiction it can be raised at any point which is basically the same as venue in this case it is because what the constitution says the trial shall be had in the district where the crime was committed these are jurisdictional to provisions element relax it's hard for the question to get completely out if you jump jump on the ice and i get we don't understand the answer because we don't hear the question not a problem but you know and when we have a two thousand and one that is in a different year and you're saying that that's something that has to be submitted to a jury under blakely and now under booker and fanfan whatever that comes out to be and under a  that's a fact what comes first what comes back and that's a fact and there's nothing in the state court record or in the state court judgment that would show when the deportation occurred this would be a confession that's a that's a matter of fact and i'll point out in many criminal cases the evidence is very clear it's not a question of ease of resolution the best i can come up with is some cases from the state courts as to whether fellows on relief and the state court says just because that's a question that's easily answered it's not deprive the defen i think pointed out that this is a very valid constitutional argument and just their comments seem to suggest that they did not resolve it in helmand hours and i'd like to say them then i thank you counsel the fingerprint evidence had been sufficiently impeached and the case was largely circumstantial that's a c r thirteen and fourteen in light of that the fact that he did not raise venue at that time which was the proper time to raise  the venue with the jurisdiction argument that the council seems to be making so i do believe venue is a challenge that can be waived and was waived on these facts so you don't and you don't believe the agents were following footprints but they could not and did not know exactly who those footprints were attached and it was only when the group was in fact after we handed in yuma arizona that they were discovered and identified in yuma arizona and in fact the crime was concluded and that certainly gave the district of arizona venue  as didn't exist those are still the roots are i can't pronounce it are you going case which also makes clear that in situations in that case you had an undetected entry in california and then a found in expressed terms of blakely itself and this court issued an order in that case denying and bonk and rehearing just on september thirteenth the fact remains the rule of the prior conviction being an to make a distinction between the fact of conviction and the date of conviction what's your response to that it's it's an innovative argument and i understand what you're saying but he slicing investing in such a way that no court has ever accepted the very language of the fact of eight prior conviction contains the temporal component within it no court has ever sliced out that particular argument that he's making i more of a passing comment if there was a problem with the temporary relation and the fact of a prior conviction the court certainly would have raised it in blakely because in blakely the court was clearly taking a another look sentencing and that uncontested fact was whether or not there had been a prior california report about the prior conviction and that was the fact of no consequence and no prejudice to the defendant so even assuming  error by the district courts perhaps inadvertent attempt to get the defense to explicitly announce on the record that they had also reviewed the denim but after the event and two times on september twenty second and october on the third argument the trial court and the cadence that he would consider a downward departure based upon the defendant's rather get the criminal history and the fact that there wasn't much drugs involved in his drug conviction and he asked for more information but he didn't get the information all the probation officer did was contact the department of corrections which responded they didn't get the pre sentence report from california doesn't say it was never prepared it didn't say it was available the defendant came into court believing that the judge had reviewed the california precentor fork and he had not had not been delivered to on the rule is that the judge must inquire on the record defendant have you seen this do you