crowley as pointed out record indicates that there were two questions and two answers after the arrest whether he had not been deported previously and whether he had been arrested previously by border patrol that and there's this court and williams identified certain number of features that would indicate deliberate intent to use a two step process in order to weaken the miranda protections and in this case there was evidence in all of those categories and then some an addition there was evidence which i would say goes to subjective intent of the evidence that agent hopkins gave a very implausible explanation for why he knew nothing about the statements that have been made prior to the second interrogation he claimed that he was called in specifically to assist with the interrogation that he talked to agent abo second was the arresting agent that he looked into mr gomez's criminal history and to his immigration history and yet he never asked the arresting agent who was also participating in the second interrogation had mr go made any prior statements that doesn't seem to be very good investigative technique to simply ignore the fact that perhaps other statements had been made prior to this it was very implausible explanation and i think that might be indication that something much more was that asian hopkins did not make any reference to the prior statements because he was denying that he even knew that the prior statements existed so that there's nothing iranis about that there really was nothing in the record to show that agent hopkins had made reference to the prior statements but that's only one factor and not even one that is mentioned in the others i've heard williams as particularly as a factor showing deliberateness but i agree with could indicate that that's just one factual element that could show deliber s the other factors the ones that are mentioned in that i've heard and williams there is some evidence on the record here for every one of those categories this record did hang its hat on that particular fact that agent hopkins did not refer to the statements during the course of the second interrogation and i also believe that there was a curative sufficient curative measures in the fact that he thought there was a miranda warning and that he indicated to mr gomez that he was now being considered for criminal charges but that was  for various other reasons i would say that the curative measures were not sufficient in this case it's particularly because on top of it there was a san juan cruz error here that obscured the effect of the subsequent miranda correct the what precisely he found that some of the statements that have been made were proper questions subject to a terry stop at the stop was not pretextual even though this year gomez argued that there was substantial evidence that it was the finding was that debilitated the effect of the miranda warnings so even there are signs of deliberateness in every one of the categories but there's also substantial evidence that the curate effect was deficient explicit disclaimer to mr gomez that his prior statements were no longer usable against him there was overlap which justice kennedy also found was significant because it tends to indicate that the prior statements were not independently incriminating and we had the same  cruz error as well showing that it is very likely that mr gomes did not understand which wright did apply at that point thank you very much i would like to move on to that i think that's actually even a clearer situation here the on bank decision fernandez ruis has held that recklessness is not the sufficient mental state for a crime of violence and under california law stand and rightfully so but a couple of factors should be considered here number one this argument about mental state in fact none of the arguments raised in mr gomez's opening brief were ever considered either in court as arias or in local stories none of the arguments about over breath were considered there so this raises a substantially different legal question than was presented and i had of those cases there's also been subsequent decision by bank decision saying that recklessness is an important factor in det prior ok i would also like to draw the course of these are cases that i discovered very recently so i just want to point out there is no nice working cases specifically talking about this but the tenth circuit case perry as our guest that said for fourteen specifically the sixth circuit said because the catch all phrase of the guidelines to one point two b one uses identical language portela conviction for reckless vehicular assault is not a crime of violence identical to section sixteen that is so they're use for a crime of violence that language is identical there are differences between the guideline to be one point two two l one point two and crime of violence and in the statutes in section sixteen there are differences between those definitions of crime of violence but for the purposes the relevant the pertinent question of what constitutes use later cal is still very much on point even though because the language is exactly the same there's make there's no reason to believe that congress would and in the areas the statutory dire line why would we import back east interpretation that yes it is simultaneously developing in the area of the immigration  well i think the issue with that is not as the core fan of the as our what or that they're not trying to accomplish the same goal so if you look at what two well one point to include this crime was another statutory rape no science or requirement actually concepts from criminal law into the immigration crime context because the girls were different exact argument you're making but it's not really there in the criminal context and so now the law is simultaneously developing in b fernandez ruiz in the immigration cases the things we're going to deport a person that person should be doing something with at least a certain level of science or but on the punishment side when you're looking at you all one point two and a stance and guidelines there's a completely different theory behind that that this person has done something which the sentencing guidelines for mission views as being a highly dangerous crime the for the plus sixteen enhanced and that's why importing basically to enforce the recklessness standard into the guidelines is contrary to the you know weighted sum of the norm a crime so clearly assessing commission is saying at least some of these crimes well actually  when we submit our twenty chain letter if you look at the basis of lay a cow which is clearly what the defense is trying to import in this case in lay a cow the court said in one of its initial paragraphs we do not hear by deal with friends use of violence if you look at the analysis and courted arias and lopez torres that's exactly what the now this is predicated on threatened violence so late a cow and actually the supreme court put it in and that basically was and i can actually give you the quote they looked to the california statute as a template on how they should review the arizona statute as a crime of violence and actually in  post another way what is it about the the california statute at issue in court as areas that convince this court that a conviction for violating that statute amounted to a crime of violence so in martinez martinez the court basically said to forty six has categorically a crime of violence they use that as a template and then compare it to the arizona statute again confirming the prior panel decisions that to forty six is categorically a crime of violence no deliberate two step analysis and we note that basically just marched with stated there is nothing here with the answers try to get statements from him meaning mr gomes without miranda warnings and then somehow use it to abstain obtain statements with miranda warnings was actually given deference as a factual finding and with no deliberateness there is no seabird violation and again we point out this case involves two questions one of which was never ever asked again in the subsequent questioning whether the person was supported had been deported whether it ever been arrested those were never asked again there is a four hour delay he's read his miranda i understand that made the miranda warnings very clear to mr gomez so i don't believe that san juan cruz would be in effect at this point because it was clarified that it was a criminal case and that miranda was in play thank you