since the young age of two months has appealed the denial of his application for cancellation of removal the board of immigration appeals found that his assault of a child in the third degree offense which had a sexual motivation enhanced one factor is in fact an element of the offense of conviction and the second issue if it is well element or treated like an element because of print he tells us that anything that offense classification from a class b misdemeanor to a class a misdemeanor so under those circumstances and i should also point out the supreme court's decision in mathis which was cited in my twenty e j letter that ultimately we're dealing with how state that is considered an element however in this case we have a sentencing has been factored that did not raise the offense classification nor did it actually raise it beyond the statutory maximum to change the guideline range did  it corrected rate in washington has washington sentencing guidelines structure is different than the federal sentencing guidelines and as i understand washington state sentencing procedures the superior court judge could have  sentence of anywhere in the range of one to three months but with the sexual enhancement it changed the range up to what was it ten to thirteen thirteen to fifteen months yet there's a one year so why doesn't that fit within the framework of a pretty where the supreme court was very concerned about sentencing people to prison without the facts triggering longer prison so my question to you is what law do we follow is it downey in the third circuit downey which is our case and the third circuit which is the same or do we follow hernandez u issue before that that panel it was not decided on it was not even raised the court merely assumed that it was an element proceeded to the categorical approach analysis and whether it was a crime upon the turpitude the issue was not raised so i don't think that case at all controls the issue before this panel so then you rely on downey and which is of course the same or same principle as that third circuit correct your honor and downey i believe specifically points out the underlying issue here it that  looking at the term convicted because ultimately the ground ineligibility here uses the phrase if the individual has been convicted of an aggravated felony so downy pointed out that when we're talking about conviction washington state supreme court case that also put in my twenty eight a letter and that i believe clarifies how you get around blakely and a pretty it distinguish a pretty end blakeley the issue in that case was whether a sentence and has been factor had to be charged in the charging document and ultimately whether it's actually considered an element of the offense because elements are the only yes i just think spears sears not spears sears is dealing with a different aspect of the washington guidelines regime not not the one we're dealing with right well you know they dealt with the aggravating factor statute that statute you know i guess let me just draw the distinction it's dealing with a situation where you've already determined the standard range and you're deciding whether you want to give an exceptional sentence outside that range correct our case by contrast involves a determination of what that standard range is and i tend to agree with my colleague to stallman that this is just like bleakly if you didn't have it we didn't have blakeley i think you would have something to work with but i think blakely is directly on point because it's dealing in that case that the court actually treated the firearms and hanson which is the equivalent of the sexual motivation enhancement here as an element of the offense it wasn't even it was even debated where i guess i would point out that all those years dealt with a different sentence statute that specific statute cites to the sinton statute that my client was sentenced under nine  nine point nine four eight point eight three five right but it's dealing with that the sexual motivation finding can be used for two different purposes one to trigger this mandatory increase in the standard range and two to go outside the range if you know once you calculate and i don't see any basis for for are saying now especially post bleakly that when you're talking about a mandatory increase in the standard range that that it would be treated as anything other than an element of the offense i've open to hearing what you have to say but i would love to hear how you would distinguish blakeley in light of the i guess my argument your honor is that again i mean i understand that the sept second motivation can be applied in two different sentencing stages but the sexual motivation in my client's case was still a set stage enhanced mint and the principles that downy apply and then just the sears chord in general that the sentencing happens whether it's under the aggravating factors statute or the adjustment to the standard range which is what my client had is still not treated as an element under state law but why even  different this i don't know if this analogy works very well but all try it why is this any different from a simple assault and assault with a deadly weapon and the enhancement if you will which is an element of assault with a deadly weapon that renders the defendant subject to a much longer prison sentence the deadly weapon and hear what rendered mr cisneros liable to a much longer sentence was his admission that he committed the assault on the child was actual motivation we are like to move on to the other point i'm going to answer to my question before you move on well yes your honor i guess i'm simply not treated as any sort of criminal element or even a criminal offense the supreme court is watching supreme court and how senior if the defendant is looking at one to three months without the enhancement and thirteen to fifteen with i don't see how that is any different from simple assault versus assault with a deadly weapon well your honor in that in your example assault with a deadly weapon is the actual statute of a conviction there's you're telling you're talking about an offense that requires under the statute a conviction assaulting someone with a deadly weapon those with the legislature specifically stated that those are with a sexual motivation it bumps it up can say five time but i think that's the key is that it's for sentencing purposes but we're not dealing with sentencing purpose we're dealing with what the individual is actually convicted of and so what are the basic essential elements of the offense the scent the sexual motivation statute is a completely different statute the supreme washing supreme court isn't even considered an offense they take that from the actual conduct in committing the offense it's related to the actual conduct but in the categor based on the facts don't even go there yet i want to hear that ok but were we have to give a chevron deference notice because it's interpret in that the term can convicted as you pointed out earlier well i think the problem with martinez elements of the offense are you look to state law you look to see what needs to be charged in the charging document what whether it raises a whole different offense level classification so i don't think mark martinez about that was recently decided under those circumstances but it's interpreted in the term convicted i suppose that term is open to a number of different constructions right and what the b i a has the position they've taken is that you're right we are not going to be bound by the way the state defines what's an element and what's a sentencing factor what we're going to do is figure out whether under a prendre blakeley in an outline of cases if this particular fact has to be proved to a jury beyond a reasonable doubt for purposes of the apprentice principle then we're going to treat that thing as an element regardless of the label the state gives us and so that's why i'm asking do you think that we are required to give chevron deference no doubt interpretation the word convicted no your honor ok well why not ultimately because  it is a criminal issue he has no expertise at all on criminal issues particularly kronos is that arise from state law and therefore the difference principles specifically state that where  this mandatory twelve month addition to the standard range or whatever it's called as an effect the equivalent of a mandatory minimum because as i read washington law on this point there is no way the judge can get out of giving your your client in this instance at least that twelve months right there that's just that it is a man daughter and once that finding is made you're going to get twelve months no matter what right so in effect it's a mandatory minimum would you agree with that yes your honor because there is the range and it raises the minimum of that range by twelve months ok then how do you get around a lien because around what the supreme court's decision in a lean because ilene held that any factor that has the effect of imposing a mandatory minimum is to be treated as an element of the fence and it must just like going to the whole line it must be charged and proved to the jury beyond a reasonable doubt and why would that principle govern this particular enhancement here i'm sorry i'm not familiar ilene but i do recall coming across the supreme court case that dealt with mandatory minimums and in that case the supreme court actually held that a pretty did not apply and that  did not to need to be proven beyond a reasonable doubt no no but not in the normal use of a lean over ruled harris which is the case that you might have been thinking of ok the supreme court originally said what you just said but then it overruled that case and alina what alene said is that if a fact triggers a mandatory minimum that fact is to be treated as an omen of the offense if the functional equivalent of an element offense and just like everything else under print it has to be charged and proved to the jury beyond a reasonable doubt and i see this particular unhandsome that your client dealt with here is basically exactly the same thing and i'm asking is there some way that it's not the equivalent of a mandatory minimum i guess i would just go back your honor to the distinction made in sears and i understand that it's different sentencing statutes but  essential elements component which is what the categorical approach is more is more about what under state law are the essential elements of the offense that must be charged in the charging document and my position is that even the sentence adjustment that my client had state law does not require it to be charged in the charging document the state supreme court has stated that if it doesn't have to be charged in the charging document it is not  offense supreme court in math this also stated that as an instruction something that doesn't something that must be charged in the charging document is an element of the offense but the problem that you face coming back to a pretty is that in that case the new jersey statute increase the penalty for firing into an occupied dwelling with a racial motivation and here is the abuses is committed with a sexual motivation to me this isn't a pretty case your honor again to distinguish a prendre i would just say again that if it falls more in the line of being an element because it served essentially making it a higher offense classification and that other effect was the same the new jersey superior court judge could not impose the higher sentence without the determinative fact of the defendants in tampa and that is what had to be treated as if it were an element charged in the indictment and proven to beyond a reasonable doubt to a jury yes ok i've let you go way over look here from the government i'll give you a couple minutes i revile it please the court i'm scott stewart on behalf of the attorney general i'd like to begin your honour's quickly addressing the issue of blakely and then i'd like to respond to some of the questions judge scanlon was asking about the court's order with respect to the three decisions two by this court and one by the third circuit why does blakeley even is it even relevant in this situation the issue is whether or not this person has been convicted of a crime so you need to know what is the crime and it seems to me you're either going to be held to an aggravated felony because of the sentence or because of the conviction in which case as i look at it it should be the conviction tell me where i'm wrong sure your honor i think what the  i think the critical point here is that when applying taylor's categorical analysis and finding out what the generic federal offense is courts make sure to define the federal offense in a way that is consistent with the sixth amendment right to a jury trial and the d this process requirement that the fact finder find each element of the offense beyond a reasonable doubt so what the apprentice line of cases is getting at is the point that under federal law consistent with to be consistent with the constitution an element is something that must be that if not admitted by the defendant must be proved to the fact finder beyond a reasonable doubt and so one element or you know whatever it's called under state law sentencing factor or otherwise that must be found by the jury beyond a reasonable doubt and that increases aggravates in some way the sentence is an ill the crime the crime as defined by the state this state it's not it's not so much a question of what the state gives as far as labels your honor i think in a pretty what the court emphasized was when we're talking about what what a crime is it's it's about the effect the effect of an element so a sentencing an enhanced but in some circumstances will be an element and in some circumstances it won't it really gets at you know whether it's something that must be found beyond a reasonable doubt if that's the case then word what do we do with downey it seems to me that the government is relying on post down the cases and i'm not there yet  sure on i think i can sort of i think the uniting principle behind really all of the three cases that the court cites and it's order downy included is that whatever a sentencing factor is called it's the question is whether the fact at issue is part of the statute or statutes of conviction meaning it's something that the fact finder had to find beyond a reasonable doubt or the defendant needed to  and downey what the the problem there was the issue there was the court the defendant there it mid to i believe it was drug possession and then after you know after he pleaded to that a judge aggravated his sentence by the judge himself or herself finding a firearm enhanced meant and the court said look you know that sentencing enhanced it was not part of the crime of conviction it's not something he pleaded to it's not something found beyond a reasonable doubt so the issue there was it was not part of the statute of conviction it was something later found by the judge is similar a similar kind of principle underlies the third circuit's decision in chavis alvarez where what the court was emphasizing there was an element or a finding of force was not part of the statute as it was defined as it was presented in that case it was in a sentencing manual that was you know later applied to the to the individual sentence there  and i think to sort of tie the point up hernandez gonzales this court's decision there sort of hits the point home and just brings across that a sentence enhanced meant you know it however called under you know the relevant law is a functional element an element for purposes of the categorical approach when it's something that aggravates a sentence and must be proved beyond a reasonable doubt what's changed since downey there has been the intervening line of cases in in a pretty in the like your honor but i think downey's consistent with those and in the point that up that age if a sentencing factor so is what your argument is that you know i think that i don't know that downey is not still viable on the whole your honor i think i mean i think downey is really consistent with those in the sense that it says that you know look something is not and you know something that's an element of the offense is something that needs to be admitted or found by a jury and you shouldn't you know a sentencing factor not found by are in one of those means is is not an element there may be some questions as to whether you know  the way that the the defendant in downey had been sentenced in sort of a previous proceeding was consistent with law it was you know the court was trying to find out what the meaning of that previous proceeding was there could be some questions as to whether you know the way he was convicted or sentence there whether that would be consistent with a pretty but i think downey's you know recognition that under taylor you look to the elements of the statute of conviction that point is not viable and in you know is consistent with with the government's approach here  defendant is not convicted of sentencing factors but only of the elements of the crime charged in the indictment that's right your honor that i'm not i'm not positive of the factual circumstance there i can't can't bring it to mind but the what i think the point there is a it sort of hits home the point of whether something is sort of a sentencing factor and aggravate it basically i think the issue is whether  something is an element if it authorizes a sentence beyond what the jury would have found there are still certain sentencing factors however that a judge can take into account within this prescribed jury range like say the jury authorized a sentence of twelve to eighteen months the judge and i think you know what the jury's verdict of the right was authorizes and sort of tie that point together i believe you know my cut my my friend on the other side his you know acknowledge that it was you know the the sentencing enhanced meant it mission here was needed to increase the sentencing range from one to three months and you know to thirteen to fifteen months he's acknowledged that the relevant sensing enhancement needed to be proved beyond a reasonable doubt i just point the court to a key passage in blakely this at five forty two us at page three zero three where the court says that it's precedents quote make clear however that the statutory maximum for a penny purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant so it's not a in this sort of leads to i think judge washburn's point that what likely teaches is that even if the sentence ultimately imposes within the prescribed maximum the key question is when you move from one lower range to a higher range you know that that needs that move needs to be authorized by the jury finding what your position on the question i posed your opponent about chevron deference you are we haven't we haven't asked for chevron deference here and i'd don't have a position on that with respect to this particular case but but would like to leave the matter open so why i mean we are interpreting the word convicted yes right and normally i think as maybe a judge of scanlon alluded to we would think that this that really is the domain of the state to define what are the elements of its offenses and what what aren't right so let's say that in this case the sears case that your opponent cited in the twenty j letter let's say that that case actually did deal with the sexual motivation finding as increasing the standard range right so it was just directly on point and what the state supreme court said is we don't care what a pretty and blakeley require in terms of these jury findings we're here to tell you what let's just say the legislature made it clear that this sexual motivation finding is never ever an element of any offense in our state it is always merely a sentencing and handsome and now it may turn out given the effect that it has on the increase in the standard range maybe because it's a mandatory minimum that triggers certain requirements in terms of you know jury finding beyond a reasonable doubt but we don't care about that we're labeling it as a sentencing factor and that's all it is it is never an element of one of our offenses in that scenario could can we really say as a matter of federal immigration law that someone has been convicted of an offense that  the state has told us this thing is not an element of because that's what's going on here it seems to me should i see that my tens of man we've got your opponent go over very good you know i think your hon i think this goes back to the point of really it's not sort of what the what the label is given in this context the key question is what is the effect is you know an aggravating factor that needs you know but why why does that to tie that back to the congress's use of the word ctually i'm talking about the state has made clear that our offense of conviction has elements a b and c the sexual motivation finding is something it's deep it's something outside and the state has said our offense when this guy got convicted the only three elements are these and what i read the b i a is saying is that we don't really care how the state defines its offenses if we look at a sentencing factor and determine that under a president and blakeley it must be proved to a jury beyond a reasonable doubt we're going to treat it as an element of the offense of conviction and that's what martinez a potus says i guess maybe you could interpret the word convicted as requiring that it doesn't that doesn't seem obvious to me that's why i guess i i was curious about your position on chevron deference because i don't i don't know if you're going to just say we're were to make that determination in the first instance ourselves i'm not sure that's the right the right answer but that is i can see that's what the he has said i'd say this your honor that in this case there i don't think it's i think it's been sufficiently conceded that there was a conviction of of the realm the relevant element here and i don't know that a state's kind of description of it matters in this context for purposes of play but i'm not sure that  i think i think as relevant here there's no dispute that there was if you substitute the word factor factors for elements then maybe or maybe a guy would agree yeah sure there's a significant difference of the term element is significant it's a legal term of art correct i think i was i was more more focusing on the relevant  state identify conduct component that the sort of purpose of a sexual motivation i didn't mean to you know go go too much far this is the distinction that the supreme court or the case law tells us that we treat as if they were elements these factors that must be proven beyond reasonable doubt in order to increase the sentence that the court may impose i think that's that's that's the right statement your honor i think that's that's right and  what's the case that holds the treating factors as elements treating factors as elements i mean i think it's an even number on the imprint on your i think blakeley like i said good example inger's that affect him either boy we yeah but the yes that's true but the problem i guess i'm just puzzled as to why you don't push ever in deference to the problem is that we treat them as elements for purposes of the sixth amendment but what we're trying to figure out here is what it congress mean when it used the word convict that seems to me those are not necessarily one of the same thing right you're on i i think the most i can say is what i tried to say so far is that is that  conviction i think for categorical purposes you know consistent with that is something we look at to make it consistent with the sixth amendment in that way i think anything that fits within judge holman's will affect that must be it needed to prove beyond a reasonable doubt that a couple points going back to judge watford's question is when we're talking about a conviction what the person was actually convicted of here if martin is about to is followed it is completely incompatible with sears if assuming my client's case would fall under c years under martinez about the b i would still hold that those sentence aggravating factors are elements but the washington s supreme court has stated that they're not state law must matter here we're talking about what a person has actually been convicted of otherwise we have federal agencies creating these hybrid offenses new offenses that the legislature the state legislators never considered as an  quite that narrow or restricted and that's where i am greening this principle that for sentencing purposes we treat certain factors as if they were elements if the application of those factors proven beyond a reasonable doubt increases the maximum sentence and that explains why in a pretty they had to show proof of of racial motive and here you you have to show sexual motivation in order to enhance the punishment for abuse of a child correct your honor but my point is that we have a state supreme court case that essentially conflicts with martinez about his interpretation of a print be and blakeley when it comes to just establishing the elements of the state offense my my argument is that an agency federal agency cannot simply create offenses on its own we must look to the state law sears has said that they are not elements of an offense ok but but we're back to to a narrow definition of elements i think yes i think you've made your point yes you are out of time ok theresa l phelps versus the city of parma number sixteen dash 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