based on the guidelines the statutory enhanced was based on eighteen u s c section twenty two fifty five b one and b two the government failed to meet the burden of proof the divine had a qualifying conviction and of course they had to prove a conviction quote relating to aggravated sexual abuse sexual abuse or abuse of sexual conduct and quote the government must use this categorical analysis to prove that part conviction of course that's from the sun under case of two thousand i'm from this court the government concedes that categorical analysis applies but then i think consistently goes on to argue that the district court was free to quote consider weight to assign the piece of evidence i don't think that's a categorical now says i don't think that's consistent with shepard documents and i think that's in violation of mr graham sixth amendment rights because the judge is not allowed to find facts to increase the penalty or sentence here and i think the problem with the government's approach her documents that we have in the appendix and i think that's problematic when you turn to that specific convictions the first and the government lies on two convictions the purchase of sexual abuse in the first degree conviction under one three point six five that's a new york statute and so it's divisible the statute in the key is what subsection of the statute was he convicted of the government assumes that it was subsection one i think they rely on that affidavit but when you go to the documents and this is a form of their appendix this is their exhibit forced their number here it actually says one three point six five dash three would lead you to believe that subsection three and then you go to a ten and you go and these are shoppers documents and it says a person less than eleven years old that parents language from subsection three it doesn't use the forcible compulsion language sub actual question your honor it doesn't matter and this is why we have to analyze the least culpable conduct under the statute and under the statute we show state court case law that the conviction on a statute doesn't satisfy either relating to aggravated sexual abuse such abuse or abuse of sexual conduct specifically there's the kanuga month case which the government doesn't address and i think all that really raises to rice's two is false imprisonment it's not relating to one of are aggravating sexual assault crimes and you know the government really doesn't touch on that issue in their brief which i think problematic here the second conviction the government relies on is criminal sexual act in the second degree that's another new york us case again it's not the type of a liable or acar judicial record if this person wants to opine on what they were convicted of bring him into court and we can understand why how they're reaching that conclusion here but the problem is documents the actual shepherd documents i mean that you get and i'm not saying that there's any intent here but let's just think about the burst case nefarious intent where you have a prosecutor and says to some of we're going to trump up what you should say in your affidavit and we're going to have you make reach all these conclusions and they're going to be inconsistent with the chapter documents again i'm not insinuating that's what happened here at all but i think that's a problem that we just give total deference affidavit even if it's sixteen years later and even when it contradicts the actual shepherd documents before this court known i think that's part of the problem  affidavit which is not a shepherd document so again going back to the sixth amendment you have the judge turned on a roaming expedition where the government quote says he's pretty consider the way to sign a piece of evidence i don't think that briefly as a pertains to count three that finding just doesn't hold any weight i don't think because the conviction for possession of child pornography under twenty two five to a four the maximum to ten years statutory live without enhanced meant so if you take that away he was sentenced to two hundred twenty months so we're above the stat max so i think that it's to go back in a minimum count three and even count ones in count two he did make that cursory finding but when you begin take away the stat max statutory max he would be at two forty would be the max me should be sentenced on here since institute hundred twenty eight almost the maximum here so i think you need more meaningful findings to sentence that back and be true and i think that's a good point but i think under this court's case all you need to make more findings to stack and you can't just presume that he's going to stack or presume based on a cursory finding that that appropriate i mean i think that needs to be quote unquote teed up for this court to understand what would be the basis for stacking right and i think that holds no weight as pertains to count three because that would become a move legal sentence as are pertains to counts one and two again i think there's some case law from the circuit saying that such an anemic conclusion or statement isn't sufficient you have to more under the mark in his case and i think under supreme court case law not on point but insinuates i think it's the million a martinez case i can't remember the specific name that there needs to be more concerns the score is whether or not the government mandates burton to provide the court with sufficient evidence to support the enhancement under twenty two fifty two and the court correctly found that the government that the government provided to the court three exhibits one exhibit was a copy of the statute that wasn't force at the time the defendant sustained a conviction for sexual abuse the first degree in new york find that it appears from an examination of the records on file in this office that on five one thousand nine hundred eighty eight before the honorable bad luck a judge bad luck the above named fenton entered a plea of guilty to the crime of sexual abuse first degree under one thirty point six five zero one and criminal sexual acts second degree under one three zero four five your honour's a certificate of this position has been found to be a reliable method of court with authority that a certificate of disposition in new york state has been found to have sufficient dish of reliability to support a finding of sufficient for oftentimes they'll suggest what statutes are possibly violated by that but that's not saying what that person was charged with necessarily not telling the court what that person was convicted of the same applies i'm sorry i know you right i'm saying that i will supply supplemental authority that exhibits three a comparable document to justify enhancement the government did not submit  i think it's paragraph six of the transcript where i tell the court i do have evidence with regards to defendants objection regarding pattern of activity which is a second objection but the point is your honor the government did not offer anything other than a shepherd document for to justify l and you know your honor you're right i just need to show that this person was convicted of the offense and i believe it's clear to the government that what i supplied the sit certificate of disposition  fifty two and the certificate of disposition to that with regards to and this wasn't touched on in the argument and perhaps i'll  briefly and that  because there's a question with regards to what offenses the defendant was convicted of that lockhart doesn't doesn't apply here on a lockhart clearly applies lockhart was convicted under that the statute involved again sexual abuse the defendant was convicted of devious sexual intercourse with the another person less than fourteen years of age the definition for sexual abuse if you look at the notes case basically says that the sexual abuse blades to physical or nonphysical misuse amelle treatment for the purpose of sexual gratification sexual conduct between persons not married deviant sexual intercourse under new york statute defined sexual conduct between persons not marriage each other consisting of contact between  involve clearly what you need to find under the new york statute for station sexual intercourse falls squarely within the definition under twenty two fifty two two point  hundred plus months at two hundred twenty eight months census that was below twenty years statutory minimum was that the enhancement the fact the three had a higher level  matter because the cats were going to run concurrently i want to touch on the pattern question but i will talk about whether or not the court made sufficient findings with regards to the reasons for the sentencing it's clear from a review of the transcript your honor that the court adequately explained to children the sentence for meaning meaningful appellate review and to promote the perception of fair sentencing if you review the transcript paragraphs twenty two and twenty three the court took labor of explaining that it found the enhancements that had considered thirty five fifty three factors whether it be deterrence protective of protection of the community and more than anything else it said regardless of whether or not we found the enhancement regardless of whether or not he appealed the passion of activity he was going to find the same sentence he was going to give here i think it's an issue the supreme court has been concerned with the government hasn't addressed it so i think they need to and they haven't really addressed our state court cases in a categorical now still just it's clear