committed when he was nineteen years old that classification subjects him to federal prosecution conviction and enhanced sentence not just in this case but for the rest of his life the conviction that triggered all of this tennessee aggravated sexual attempted aggravated sexual battery is not in fact a tier three sex offense mr marcus me a couple of arguments in his briefs about why that particular that is without doubt it is not open to question the tennessee attempts weeps more broadly than federal generic term we know this because the tennessee supreme court has told us we have authoritative tennessee law that makes it clear that under tennessee law a substantial step requires less proof on the part of the government than for purposes of federal general attempt per federal attempt the test is a substantial step that word is the same as the word in tennessee under tennessee law however it is a stricter standard and under tennessee law federal general excuse me federal generic attempt requires proof not only that there's more than mere preparation but also that and i'd like to say it in particular a substantial step occurs when a defendant's actions unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances this test is known as the problem all to systems test tennessee has rejected the problem to systems tests much like this new jersey when it adopted by statute substantial step formulation it borrowed from and based on the as we know from the drafters expressly rejected the probable distance test and also indicated it expected that by changing the formulation to something that had not previously existed it would be expanding the scope of liability for attempt reverse the tennessee supreme court said we are now rejecting our older test which required which would not have permitted any conviction for attempt based on mere preparation we now are using this test that was adopted by the legislature which is based on the model penal code and under that test mere preparation will suffice not in every case but in some cases that's enough to make it so that in tennessee a person can be convicted for attempt based on lower proof than what is required for purposes of federal generic attempt what this means is that when traveling barkus was convicted of attempted aggravated sexual battery and when you look at what that means when you just look at the facts when you look at the fact of conviction that his conviction sweeps more broadly then the definition of the of the offense that would qualify him as a tier three sex  government in its brief has not actually said that there is no such thing as a problem systems test in federal generic attempt and in fact all the case law says that that's true so we're at a point where the error is plain there is no question that tennessee attempts sweeps more broadly than federal temp and for that reason mr barch says sex sex offense is only a tier one sex offense what that means is his guideline range was miscalculated and it was plain error and for that reason this court should hold that his his guideline range was miscalculated and reversed for that reason alone the next thing that the second issue that i'd like to before i move on to the second issue i'd like to also see there's an alternative reason for why his conviction doesn't qualify as a tier three sex offense and that is also that's because of another part of the comparative definitions between those sort of offense and the tennessee offense and that is that determined government and mr barker's went back and forth it really comes down to one thing does the tennessee definition sexual contact is it comparable to the definition for sexual contact under federal law and as mr practice has shown his briefs in fact that in tennessee sexual contact is defined more broadly than sexual contact for purposes of federal law because in tennessee there is no requirement that the government actually prove specific intent that the contact was specifically done for the purpose of arousing sexual gratification i'm sorry i don't remember the exhibits is the reasonably construed exactly right to me says that there are there's there's a tennessee court of criminal appeals decisions that explicitly say there's no requirement that the government prove that the contact was for the purpose of sexual gratification faced with that language a defendant who who says i touched my and i my touching was not intended for that it was by accident that that explicit language in the court of criminal appeals is going to send a message that defendant they should be pleading guilty what that means is that the statute sweeps wind that casts a very wide net and it's wider than what is required for purposes of federal law one of the examples which w never fly in federal court so because i have several issues i'd like to move on if i may the next thing i'd like to talk about has to with the two additional criminal history points that are imposed when a person is under criminal justice sentence in this case those two points were added because trevon parkas by virtue of his conviction under for attempted aggravated sexual battery he is subject to what is called community supervision for life sounds a lot like supervision but by statute it's automatic it's triggered automatically by the moment he pleads guilty to that to that offense and there's nothing in the statute that requires supervision and there was nothing swear by the record of conviction that tells us that he was under any kind of supervision the problem here is not so much the question whether there could be a supervisory component to this kind of supervision it's that it occurs in every case it's a presumption it's a presumption that mr barcus and those who are automatically placed on community supervision represent a greater risk of receipt of his m how do we know that that's a presumption because of the sensing commission has told us and in fact i didn't cite it in my brief but in the introductory comment to chapter four of the guidelines it actually tells us that each one of the components of the criminal history score is intended to correlate with risk of reset of a sum so they tell us this and they also say that they're not committed to what they are now and they're going to revisit these things as more knowledge becomes known that was in one thousand nine hundred seven and this particular provision has not been revisited since the states started passing these laws that made it so that certain people could be automatically subject to community supervision for the rest of their walk of the presumption and the point here is that the presumption is actually based on a false premise or at least highly questionable it comes very close to being an automatic enhancement to your punishment based on on a false assumption and that raises serious due process concerns and it's going to last really for as long as he ever has a conviction that's countable will automatically get two additional points in the absence of any evidence whatsoever that these two points were intended to encompass people like him and there's a widely available information that tells us that sex offenders and those who are subject to community supervision because there is sex offender registration requirements they don't actually present a greater risk for citizen in fact they may present less of a risk very recently even this court and i think it was twenty might have even been twenty sixteen on the panel and those numbers one in five versus snyder is explicitly recognizes that any assumption about sex offenders is likely to demonstrably untrue and we have a guideline that requires a district court to enhance sentence or at least calculate the guideline range based on something that is possibly demonstrably untrue we have what looks like if you're successful here which is the song or charge that wouldn't necessarily remove the supervision for a life perversion no it would not what i'm arguing is that he should not a person who is under community supervision for life that's automatically triggered should not get extra criminal history which raises my next question this is the same one i asked an earlier group by this morning if you're successful what relief are you asking for so in mr brock says case it would mean that his guideline range is calculated without those two criminal history points which takes him down one criminal history category reduces his guideline range from thirty to thirty seven to twenty four to thirty that doesn't he's already out of jail no he isn't he's still in zero zero absent i thought he was out now he's in it doesn't your argument have i understand some extent that this is  maybe unfair and unjust in terms of or offenders being you know cast in the same situation but are we just bound by the guidelines and the commentary here i your argument really is that maybe those should be changed right that really tell a c community supervision from why is a criminal justice and how do we get around that given the comm go well my answer to that would be two things those would be two supreme court decisions first as labonte the second one instance in which i already mentioned my brief so i'm guideline can't actually be in conflict with statute or the constitution we know this from wanting there's a directive in the organic act for the sentencing commission it's section nine hundred one of title twenty eight the tells the sensing commission that it needs to do that is supposed to develop the guidelines that reflected dance knowledge about human behavior as it relates to the criminal justice system and in that introductory paragraph before it says we recognize that our current imperial evidence says that these factors correlate to increased ris hundred seven and now all of these years later when there is manifest empirical evidence that shows us that that is not true about sex offenders and those who are on a criminal justice system automatically by statute for like this particular that they have not actually done that this particular provision is in conflict with that the second thing is the due process problem it is a due process violation for a sentence to be based on false assumptions false information demonstrably untrue information that's townson bieber that's due process incensing absolute so this court is not bound by a guideline that violates the constitution raises a serious constitutional issue we could interpreted to mean something different in order to avoid that and also the fact that it also so somewhat in conflict with this statute this is not an ordinary situation where it looks just like a policy question it's a value judgment the governor the commission might make a different decision this is where a guideline has been express really just one point and it's really the nub of it has to do with the the imposition of mental health treatment plus sex offender treatment conditions for mr barcus mr berger's his position is that mental health treatment is sufficient to address his mental health issues and that this is not a case where he needs both and the last thing i'd like to say is that there is not one case not cited by mr barker's not by the government in which the defendant at sentencing received both mental health treatment and sexual offender mental health treatment it's the cumulative effect of both of these when one would be sufficient doing both is a greater deprivation than necessary  brennaman for the united states i'm really glad opposing counsel opened by talking about this attempt standard because in reading the briefs i realize that that's the areas that at least in their view we didn't adequately appreciate or address their concerns so i wanted to make sure that we're clear for you about what our position is in our view there is no meaningful distinction between the federal definition of attempt or substantial step and the tennessee definition of substantial step there's a couple of reasons for that i will start with a model penal code which of course defines a substantial step by saying that something is not a substantial step unless it is strongly corroborative of the actor's criminal purpose that is the phrase that this court uses most often this court defines a substantial step as something that is strongly corroborative of defendant's criminal intent something that marks his conduct as criminal those are the phrases this court uses reference probable does this to a standard which the model penal code rejected their reply brief page seven describes that as the hallmark of a substantial step standard and yet this court has never used that phrase to describe attempt instead this court is looking at what strongly corroborates an actor's criminal purpose if you look at the tennessee case that defines exactly how attempt is interpreted the reeves case it was rejecting an old interpretation and prior to the nine hundred eighty nine revision of the tennessee criminal code tennessee courts had divided when looking at attempt they divided things into two categories what they called mere preparation and the act itself everything a case in which because the act had not happened this case that involved illegal abortions and because the the pharmacist who had admitted that he had performed abortions in the past had a person in the office on the table hadn't actually touched her because you claimed that tennessee courts and said we have to reverse the conviction it isn't actually an attempt they drew this line prior to the revision of the tennessee code everything other than the act itself was mere part aeration reeves the court said we need to recalibrate this because there's a long continuum between thinking about doing a crime and actually starting to do the crime and by changing that continuum they gave a particular example in that case of actions that were more than mere preparation but less than the extreme definition of their preparation they had previously used it's argued that the tennessee supreme court's interpretation of the mere preparation standard parallels the federal definition of that as this court held in builder back for example attempt is to be construed in a broad all inclusive manner it's fact specific it's dependent on the circumstances of the case perhaps the best case to illustrate that and again this is not referenced in our brief i'm sorry that that steps included recorded statements of a defendant planning a bank robbery recruiting someone to be his getaway driver mapping out the route by which they would flee the bank after the fact and the defendant argued that's just mere preparation when you actually arrested me i was at my house i didn't have any weapons i didn't have any disguises i was an hour away from the bank that only amounted to preparation and this court said no you did enough things for us to be confident that your criminal intent was fixed you would have eventually done this we don't have this requirement of inevitability of the crime the language of probable distance to my knowledge only the ninth circuit has used that phrase and only infrequently instead this court ordinarily uses the same language that's found in the n b c which is the same language that was adopted by the tennessee court and i view there's no meaningful distinction between the federal and tennessee definitions  the i would agree that the language is not identical but the type of proof that would be involved in both cases would be identical and i think it's worth clarifying what analytical framework this court is using  we're looking for as as the supreme court said imagine as we're looking for a categorical match we're not looking for a match in this conduct in this context because the statute says we're looking for something that is comparable to or more severe than and so we're looking at something that involves a verity as opposed to the exact breath of the elements so the language may not be identical i think we're still well within the definition of what counts as a comparable  that you employ well there isn't an requirement for tennessee aggravated sexual battery but there's a separate intent element as to different portions for example the touching must be intentional and the defendant's knowledge of the victim's age for example does not it could be merely reckless so there's a different standard of intent or for those different standards if evidence can be reasonably construed as proving this comparable standard we have a little more flexibility here than the precise categorical match we're looking for under mathis again this court of course is reviewing only for player again if this court reviews the issue at all i don't the given that i realize that it's there's a lot of moving parts in how to analyze these individual elements and compare the statutes and look at all of those things but i would submit that on this record the district or did not plainly error in calculating the guideline range it correctly calculated the guideline range and it's defined in term of imprisonment at the bottom of that range followed by the shorter statutorily authorized term of supervised release and we believe that the court reasonably exercised its discretion in selecting several special conditions affect the term of imprisonment and i don't think that affects the guideline range maybe i misunderstood your question didn't committing the offense well under supervision in effect the guideline now is that part that involves the calculation of the two criminal history but that does affect his guideline range in january of next year that's my recollection so i believe he is still incarcerated at this point it would be a minor difference in his guiding range but yes if this court were to find that the district court erred i ring him for recent it's it would be the appropriate remedy there's the fear that you're in specifically affect the conditions that the court can impose not that i'm aware of but it affected thirty so theoretically up here is tearing one you could have had all the same conditions i d in terms of the conditions of supervised release yes yes thank you but it affects the office level right exactly yes it increased his offense level by four levels it also affects how long he subject to federal prosecution for failing to register and for if you were to or want to think the fifteen years in this tier three it's for life so that's one of the i would say and i only have a few minutes here but the fact that this determination has that kind of an effect on a person for the rest of their lives actually ways toward being a categorical roach to be absolutely sure that this offensive conviction itself the fact of it subjects him to back hind of federal control for the rest of his life and state control for the rest of his life i just want to also point out a couple things want to about attempt the standard stated by this court although it doesn't call it kids said that that is the probable distance test in operation if the court says that's not part of the federal generic attempt then we're creating a circuit split with the ninth circuit we now have two different definitions of what generic attempt is one of the problems in this charge was in a consensual sex with a minor senshi but when you're when you're plead you get into this morass you know and so that's that's what makes it difficult because this is a case where we know precisely what he did while we only we don't know that by the record of the offense of conviction defense of convention only tells us i understand that but that's for me at least one of the problems with the categor well i can see that but the categorical approach is exactly what protects him in these proceedings from having his his sends and punishment and prosecution all depend on facts being found by a leader federal judge based on a record that might perhaps none of that could have been proven you know i have had he actually gone to trial maybe she wasn't really twelve maybe she was thirteen i mean we don't know these things because that didn't happen the only other thing i'd like to say about the categorical approach is just a few days ago the supreme court again reiterated if not emphasised that when a statute uses the word offense and convicted it means that the categorical approach applies it w would say that this is this must be especially true when we're talking about how long a human being is subject to the kind of federal control that and prosecution and punishment and enhanced punishment has over their lives so i would ask the court