deportation proceedings first with respect to the district court failure to grant mister the two level reduction for acceptance of responsibility the court in that respect applied in erroneous legal standard in coming to the conclusion that he was not eligible for the two levels specifically the court stated that it viewed acceptance of responsibility as a reward for speeding the government  resources the court said i'm not punishing you for going to trial the fact is you didn't say guilty and said that numerous times that if you did as a reward for saving resources i thought it was the lack of remorse  responsibility on numerous occasions when he was arrested in the field he admitted to being undocumented several hours later after he was at the station house and after his miranda rights were read to him he gave a very detailed statement in which he effect y accepted all of the elements of the fence and that statement that he provided to that arresting agent shortly after his arrest is detailed in the pre sentence report and then at the present interview  also at the time of sentencing told the judge that he apologized for everything and promised the judge that he would never return to the united states we also said he also submitted to the court letters from both his mother and sister which indicated that he was very sorry for his conduct and had promised he said i'd like to apologize for everything that has happened i will not come back i am deported i will not come back and that's at page four ninety one in the letters that his mother and sister provided that for our located they are an excerpt of record  s twenty eight and thirty and i think that when the district court stated and the district court even acknowledged release acceptance of responsibility when the court noted this  law in the circuit for a long time but also a reduction is also available in cases where the defendant manifests genuine contrition for his acts but nonetheless contested factual guilt at trial now that didn't occur here but even in those responsibility for his actions and it is remarkable not whether he's believe the government resources and that's where the district court here the court in this case focused on whether or not mr mendoza had saved the government resources and while that is  and that rejection cannot be denied to a defendant because they exercise their constitutional right to go to trial and contrast to the third point for acceptance and responsibility and said with respect to the third point that is  discretionary determination that's left to the government whether to move that and in those cases the inquiry is whether you whether the senate has they've the government resources and so i think the district court here can confuse the two  out that admission of conduct is significant evidence of contrition and here if you look to the p s r there's a very detailed statement by mr mendoza almost immediately upon his arrest detailing and in leading to all of the conduct in deported legally and went on to note that the issue is whether the n p a was properly served which brings me to my argument that the deportation was invalid in this case mr mendoza was a legal permanent resident of the of the united states for twenty one years  and he wouldn't be serving fifty seven months and a u s penitentiary right now because he would have understood the consequences of coming back to the united states illegally in the significance of his deportation but secondly he had a possible argument that if you had a lawyer at the hearing he would still have gotten before that but on his way out of the country the lawyer would have told him to really careful about coming back well story they can give relief it's not it's not like the sentencing guidelines for you so go back to crack only and look at the time you come into contact if it's official i mean immigration official is to appear is what commences the proceedings and i think the court should view that more as a jurisdictional element and if the court can considers the notice to appear to be a jurisdictional pre work prove prerequisite to the proceedings then the court should set aside the deportation order deportation the court is correct and of course the appellant has necessarily had to concede this on page twenty six of her brief that are we're a did in fact bar relief for all of her baited felons to  enter their guilty plea after the date is effective date which is a form one thousand nine hundred seven and this case in the guilty plea was entered in two thousand and one it was a guilty plea to an aggravated felony and for that reason on that initial basis mr the only basis for the nile that is correct it's not proper to only rely on the fact that a defendant has chosen to go to trial as a basis for denying exceptions however we don't have that case here in fact we have a case multiple it was number one that the defendant did choose and this can be considered among the other reasons that's a definitive choose to go to trial and dispute his factual guilt that's an important point which in this case the defendant did you know he was disputing his factual guilt on the elements of the crime number two the court considered the fact that the defendant had lied to agents in the field when he was arrested about his citizenship and also the court consider the fact that when given the opportunit remorseful he really is one statement from a cold record that i apologize for everything in the government's position is not sufficient to overcome the clearer standard here that the jewish record did not commit clear air when i considered all of the opportunity and that's certainly the very point i mean the point is to give the judge i mean this is his chance to show concession and the district court to consider that and the court was there and heard that statement and the court took that into consideration however the court found another fatality of all the circumstances that that was not sufficient to merit or an award and this is an award this is an award that the defendant has to earn by preponderance of the evidence like any other departure not trial and the court found that he had met that standard he hadn't gone above preponderance of evidence to show that he merited acceptance of responsibility and i think that's a result of the time space not enough i think that's a result of the fact that he not only put the government to the burden of proof but he also these other factors did not fully accept responsibility to not show complete contrition and the court should afford great difference to the district  prior very briefly your honor i would just know mr mendoza didn't know where in his briefs can see that he would not have there was no possible argument that he was eligible for to twelve seat he really went through the history behind