national crime of violence in this case is under the guidelines section two l one point two and it's important to recognize that this definition is probably narrower than other definitions of the definition in this particular guideline for the relevant purposes here includes the specific crime of forcible sexual offenses hand than any other offense that has as an element t under the definition of assault it doesn't require a bodily injury and in fact i don't believe it requires the worst at all if it is defined as an attempt coupled with the present ability to commit what they call a violent injury on another but they have defined violent injury to mean it does not mean any possible the injury is in fact on page twelve of the government's brief it sets forth destine on a mu think under california law an assault is an attempted battery because they do say that assault is defined as an unlawful attempt to connect basically what it boils down to under california not require the forcible that the use of force to commit the crime and i would know your honor that in two thousand and three the definition of crime of violence under this guideline was amended and i and we have to assume that there's a difference between forcible sexual offense and rape so really does not equal forcible sexual offense going back to the gentleman with a very dangerous reputation and he approaches a woman and wants to have sex with her she doesn't consent to the sex but she has she doesn't resist because she's afraid of what he may do to her if she doesn't that is a third degree our rate case if i'm not mistaken a two thousand and two third degree rape case and again that's still under the definition of aggravated felony when aggravated felony used to be the sixteen level bump and aggravated think the distinction is well made again by case lopez v montana's in which judge fletcher was on the panel i think judge fisher wrote the opinion in that and in that case they said that california's sexual battery does not include a crime of has said many times the force that must be used under the use of force a catchall phrase must be violent force and in this case violent force isn't necessary to commit the crime in addition it's which is different because it requires the intent to do it for sexual purposes i think and california has said this this is the intent is the intent to commit the act it's not the inten to use the force it's intent to commit so and then again it doesn't qualify as a forcible sexual offense  based on i believe your honor the forcible sex offense but also that catch all phrase as well i would argue both and the conduct faster than ordinary contemporary and common well i don't know about an adult or dealing with a five year old and i don't believe that i did actually put the cancer by as case in my brief but i know that certainly rate can be accomplished based on person a person impaired by drugs or by trickery and that was found in that case under the same california statute so i don't have a problem with that particular but the court m and i understand that i really it would be difficult for me to stand up here before this court and say that this particular assault with intent to commit rape conviction was not a crime of violen under both categories as the court may feel differently under the case that i understand and definitions given that would be the course of the government's position any further questions no new question and when you break it down to that basic element and you have to compare it to a crime of violence which requires not only four but violent stories you don't get there and we can't use the modified categorical approach because there's nothing in the r