made please the court then glassman on behalf of the united states i'd like to reserve four minutes for rebuttal but i'm may proceed with the district court erred in its construction of eighteen united states code section twenty two fifty two  b specifically relevant to this case is that part of the statute that lists as a valid predicate a conviction under the laws of any state relating to aggravated sexual abuse comma sexual abuse comma or abusive sexual conduct involving a minor or ward the district court thought that involving a minor award applies to all three categories that is incorrect  written the grammar has commas lists three things and involving a minor award applies only to the last one the district court recognized this says that under the canon of statutory construction called the rule of the last  normally it would read involving a minor award as touching only to the last of these three categories however the district court thought that there were other indicia of meaning that overcame it the district courts reason for overcoming it was the title of the specific offense that the defendant committed and the chapter in the united states code in which it occurred those relate to children the problem with that analysis is that that speaks only to against you they go near says involving a minor or war and applies to the first two terms as well as abusive sexual conduct i don't think that gard actually did decide that your honor and that's it says at issue here is whether good or has a pro conviction virginia for sexual abuse involving a minor so it and sexual abuse is the second term the third so the statute is relating to aggravated sexual abuse comma sexual abuse comma or abusive sexual conduct and bob in the minor award and the very next sentence is at issue here is whether gardner has put conviction in virginia for sexual abuse involving a minor and there's another passage later on which also indicates that the holding involves applying involving a minor to the second term well i don't think i believe that the way that the issue was raised as stated in what your honor just read was what was presented at issue in that case there was no argument as i read it that there were three different times in fact if the court pulls the briefing on that that's exactly how it was raised so your position would be that the statement in gardner was due to poor briefing in other words not briefing the issue by the parties and therefore the court made a mistake in its construction of the statute i don't think that the court construed the statute in that regard it simply decided the issue that was presented to it or you can't decide an issue presented to you if the issue is premised on an incorrect interpretation of a statute unless you say explicitly we don't think this is a correct interpretation but we're going to hold the government to its concession and gardner that involving the minor affects the second term i don't believe that the government conceded anywhere in that case that involving a minor  attached to the second term i don't believe that was a concession but i haven't read the briefs so i don't have any position and if that will garner did they ever get to the question of whether the last phrase modifies sexual abuse no i don't believe so is soon to yes is your position they assumed it did because the briefing didn't tell them this is a hot topic carter said exactly what it said at issue is this and it decided that question  that would be as if in this case we had appealed and i had argued to this court that at issue here is whether or not prior conviction qualified because in fact under a modified categorical approach we can see that it involves a child you wouldn't have to resolve any other issue to say other than to say well no it doesn't under a correct interpretation of the statute and the modified categorical approach and judge more i would add that if the court actually made that holding i mean that would be clearly wrong demonstrably wrong because we know that and this was part of the point i was about to get to that among the federal and fences are many that are not limited to a minor award i mean it says explicitly that anything in chapter one o nine a a federal if it conviction counts so gardner couldn't possibly have really held that or i certainly wouldn't be ea stated the law you know so if there are district courts obviously such as the one that we're reviewing but while i'm aware of the one we're reviewing i'm not aware of others and the district court you'll note you know relatively careful careful written opinion cited no authority in support of its view and to the contrary every court of appeals that has addressed the question has come out the way the united states is advocating here  uniformly both because of the way the text is written and because of as i said there's no reason to think that federal offenses would not be required to involve a minor award but state ones people who are by awaiting federal law hence the whole of chapter one zero nine and less knowledgeable about people who are violating state laws and therefore once to mostly protect against people who are by waiting children no i don't think so there's certainly no indication of that either in the text of the statute or in the any of the legislative history i mean as my colleague has quoted the point is root problem of recidivism with respect to sexual exploitation period so i'm not sure that there is something that would suggest the sort of reason that the court is suggesting in the question and in fact the provision related  under any state law relating to these three things suggests that congress is interested in capturing the broad reach of anything that's really any conviction that's relating to one of those subjects so i think to the contrary the text of the statute indicates that congress is interested in capturing anything that stands in relation to those in i think that would make good sense that federal prior federal conviction would cover roughly the same stuff as a prior state conviction we're trying to get at the problem of recidivism is there any legislative history that's pertinent to this freeze i don't believe so my colleague has quoted in his brief i think all there is i don't think there's anything else i suppose we could add that i believe this was adopted at the same time as the adoption of sections twenty two forty one through forty three in the chapter one or nine a so to the extent that there is a resemblance between them perhaps the court could draw could draw the inference that there are parallel but otherwise there is nothing specific in the legislative history that would support my position other than what i've already written in the reply brief in any event judge moore the statute is clearly written in such a way that we're talking about three different things i don't think there's any dispute about that so the question is really not whether congress could theoretically have come up with some reason for treating state and federal crimes differently and i've said that they didn't but it would have to be a really strong to overcome really the rule of the last antecedent which is to say the plain meaning of how the statute is written and i i would just add that i don't think there's any dispute that if we prevail on this issue in fact it's prior conviction under ohio law does qualify and i think that recent scene would be in order because the district court sentenced at what it believed to be statutory maximum sentence so i don't think there's any good argument that the error here is harmless if there are no further questions i will yield the balance of my time to my colle good morning your honour's may please the court kevin shout from the federal public defender's office appearing for mr mateen who is the apple e this court does not write on a blank canvas with regards to this issue we have the case which talks about the fact that when we're looking at this particular issue we are supposed to use a shepherd taylor analysis i know that the government has his keep using the term relating to but  that that has already been settled by the mcgrath in case and in fact one of the third circuit case that the government relies upon in this case the court had before to gratton and rejected that that basis for analysis i think second this court has to take into account the leo case which was just so that i make sure i understand this because this is at least in my view certainly one of more confusing cases that we have this whole week if we don't define related to as expansively as the government is arguing in this case then you have to start to come up with a definition of sexual abuse right absolutely and what's wrong with using say a webster's dictionary definition well i would submit that i think that it's clear that when you when you look at those three those three phrases and you have to define them in actually the shepherd taylor analysis tell us that we have to find define them i think tailor that says we have to define them in their generic sense right and in what i've what i've seen in the case law and that is that we we take a look at we don't use webster's necessarily but we take a look at what the fifty states are doing and what treatises do with regards to each of these offenses and we use that definition not necessarily the federal definition for the federal offense but we use that more a narrow definition to define these and but in this case we have the detail e o case as well which i think is the second point here because due to leo has already looked at ohio's side statute now they've looked at it in the context of the one subsection of the statute that's not a force because i think everybody in this case admits that this is a fourth degree felony in this case which means that in this case there was not an element that it needed to be a minor and that's where kind of gardener kind of comes into play and we'll talk about that a little bit later on but once we agree that it's a four three felony do you also agree that the only one logically it could fall under would be twenty nine zero seven dottle five a one your honor i would not it may be that logically it would fall under that but as this court's aware from looking at prior state convictions part of the reason that we have this shepherd taylor analysis in the first place is that looking back into the state record becomes a quagmire for federal courts and federal sentencing courts and it's the reason we made this analysis in the first place because we don't want to get into determining what they found what they didn't found because of  disagree that it's a one i say what i what the record shows is that it is the g s i statute and that's all it shows it also shows that it is a zero word because of that do you agree that do you disagree that it's a one i a four and b are both third degree so everybody rules those out correct so you you neither advocate for or against it being any particular one of what's left i e a one two three or five absolutely the shepherd taylor documents i got you just farther than that ok yes so did you have more no no i'm just trying to figure out your position so when you when we take t kind of one of the kind of kind of the bit of shifting sand in this case which is which which of the three does the government contend this falls under when you say which of the three you mean aggravated sexual abuse sexual abuse or  conduct then you if you take a look at their at their brief they actually never come down and say it's this one or it's this one it's this one and my understanding and tell me whether this is ron and what problem it would present is that they just simply talk about sexual abuse because they win and they don't have to get too aggravated sexual abuse so they don't get that so they don't bother well is that do anderson misunderstand and maybe i misunderstand their brief but the way i read it they actually never come down and say which of the three that they're relying upon because indeed the  easiest one for them to prove obviously would be sexual abuse absolutely absolutely the problem is again with the to leo this court has already said that size connected to the third which is abuse of sexual conduct with a minor award so when you when you have it connected already by this court to the third now in this case it in the in the reason is because of the definition of sexual contact and that's where in the tilia the court looked at the definition of sexual contact and actually said that the ohio version of sexual contact and the federal version of sexual contact are closely aligned to each other was the language that was used i'm sorry to interrupt again but you keep referring to it might not be in my brief it's i think it's in the government's pre print it's in the court's decision in the court of law it's cited on several different pages and the government's theory yes so i thought i could rely on it but you obviously weren't relying on it in your brief well i thought it was already it was already filed with the court and before the court so you're saying that  decides that the ohio statute that we're dealing with paul's the ohio statute abusive sexual contact rather than sexual abuse it's it's abusive sexual conduct yes yes and that it required that everybody agree that wouldn't buy or involving a minor because involving a minor follows the words abusive yes so it's persuasive but you don't even mention it it persuaded me in preparation everything you are making now before is that you didn't make in your brief if you didn't say to tell you it's not it is certainly we challenge that this that this offense even qualifies anyway we make that gross sexual imposition when it is described as an offense to say compels the person or one of the other persons to submit by force or threat of force and not fall within sexual abuse if that does any make logical sense if he was if it was sure that he was convicted under a one we could maybe have that conversation but we don't have that in the record here that you're reading from a one again but that's not the only one that is involved in this case because taking the categorical approach you have to you can only bit bore down into the record as far as you can get into the state record and that's the problem with this case is we don't know which subsection he pled guilty to we don't know which subsection he was found guilty of in the case and because we so we can't get the only thing we can get to is it's not  mark because it's not because it's a fourth degree felony and that and so that all the rest of the room play and so they're going to have to prove in order to win their case they have to prove that all of the other ones would apply and that's the only way you can do it under that categorical analysis let me move on to to say that getting to this argument of that the federal statutes that are listed first prior to this this state language that those are kin to the state charges and therefore we can use those federal statutes to show that congress obviously meant to capture this other conduct but i don't think that he go back and still hung up on this ok i  limited in when and for what purpose we can look at what actually is shown and say the charging documents but as said at least as a general proposition if the categorical approach is clear then we that we can't but i  would have thought that if the categorical approach at that stuff is then indeterminate then we can you proceed then at that stage to the modified categorical approach i agree in which case why can't we look at the documents to  see that there's no mention at all of administering drugs controlled substances all the other things that are in a two three and five and that's what gives you i can't we do that well we could but that's what gets us to gardner which in gardner says that if even if you admit to conduct which would qualify if were bound by gardner you win but if we're not bound by gardner because he didn't get it did they didn't get to this point then why can't we do  governor says that if you plead to an a two offense and you plead to all the elements of a two and then the prosecutor throws in and obey the way it was a minor and you agree that it was a minor when you plead guilty the fact that you agreed to that as part of your plea agreement doesn't make it an element and therefore because it's not an element you can't use it as an int he answer that's what gardiner says so you only look to the elements of our whole discussion earlier was whether or not gardner was intending to confine that only to that third phrase as opposed the minor to the third phrase as opposed to the pre preceding phrase yes well let me take this back to our case here ok we don't we don't know from the record despite having the plea hearing we don't know from the record which subsection he pled guilty to we know the facts that he pled guilty to but we don't know which subsection he pled guilty to and we and we know that the facts rule out a two three and five doing at no because just as in gardner ok in gardner those could have led gardner them to saying that gardner violated a different subsection of the michigan statute and even if he admitted to those facts and even if he did those facts the fact that he pled to another subsection that didn't require some of those facts that he in fact pled guilty to that meant that it didn't qualify so in this case i understand i understand your  why this is a quagmire in it's because we we may know what facts he pled guilty to we may know what the judge said what the prosecutor said and what he admitted to and you can say well those facts obviously make it an a one but we don't but we don't have anything in the wreckage that shows that he in fact pled guilty to anyone and that's a problem let me try this out and it seems to me normally this comes up in the question in the context of whether we can actually use a fact that's what we normally see here you're saying that we can't use the fact and there may be other facts so therefore we can't figure out why is there any case that takes  that that last step i think gardner in fact takes that last step is there any case other than gardner that we sort of there's a published opinion though i get that ok i know i don't know of any other they don't if we don't read gardner for the proposition that you're now  ascribing to it is there any support for that i do i'm not aware of another case i think yes so the basic question that we explored at some length with your opponent is should we view gardner as binding us on the question of whether involving the minor applies to sexual abuse why is your opponent ron your honor i hate to concede any issue  i would agree with my it would be a first if you did i would agree with my opponent that i don't know that that particular she was before the gardner court i've not read the tree and i've not read the briefs i think i think mr glassman may have i've only read the gardener decision but my reading of the gardner decision doesn't lead me to believe that that particular issue ever got before the gardner court i think it was an assumption and i don't know that it was a holding but i don't i don't think that loses our case in any event in this case because for all the reasons that are just that mean that we when ever a court such as ourselves says something is a matter of black letter law subsequent panel should go look at the briefs in that case and see if the issue was actually litigated no i mean it and that happens quite a bit obviously and then we're bound by it later on i understand that because basically that approach would say everything in the circuit is fair game that our rule that the first panel to rule on something binds the rest doesn't bind when anybody can say oh you didn't really carefully consider this topic you just said something in passing in i certainly don't want to take mr glassman as argument form but i guess it comes down to whether or not that phrasing gardner you believe is black letter law or whether it's dicta we're not even considering here whether the carefully considered were can were were just and whether they considered it at all actually said that the holding was because the guy wasn't because there wasn't a showing that a minor was involves the crime did not count so it was part of the holding i'm happy to accept that interpretation but you're not being very help thank you hopefully without being too scattershot it like to try to clear up a few points with respect to my colleagues mention that the government never says which subsection we're talking about if you look at bottom of page twenty two top of page twenty three of our brief we say that if you're gonna use the modified categorical approach then his conviction would qualify as either relating to aggravated sexual abuse or at the least sexual abuse so that's our position there and judge mckeague with respect to your colloquy with my colleague regarding looking at the facts i think my colleague is talking about looking at the fact that the victim was a minor and i would agree that if we're talking about modified categorical approach the district court below got that right you can't consider that fact because as you said that's the wrong degree felony but you certainly can look at the fact it involves force that was his admission and that is a one as the court said that's a back up argument though but then he goes on to say but we don't know which one it is because two three and five are sort of force plus and there wasn't any discussion of that so he wants to extend this doctrine to say and there might be other fake there might be other facts so not only can we not consider the facts that we know to be facts but weak sort of saying we can't consider that there we have to consider that there might be other facts even though nobody mentioned it that's just what's sort of seemed odd about the argument to me yeah i don't think that's the law i would just look at the desk camp's opinion from the supreme court which seems to lay this out his most recent opinion  i think it says that you know if you've got a divisible statute as opposed to an individual one but if it's to his point subsections if you're trying to figure out which subsection we're talking about you can use the shepherd documents and in this case use the shepherd documents you see that involves force so it's a one so does does it does camps overturn that aspect of gardner that your opponent was focusing us in a no i didn't think us camp say th exist yeah i think so i think so judge moore i want to come back to the point about gardner it might be a more difficult question if the court had made a clear holding we read involving a minor to involve all three parts of the statute it didn't say that in fact it was explicit at the start of its opinion that at issue here is whether gardner has a prior conviction in virginia but that's because they were applying the sexual abuse component weren't there they at issue here is whether gardner has a prior conviction in virginia for sexual abuse involving a minor that should trigger the mandatory minimum that particular question  was raised and decided in gardner and i don't have a problem with it and because of the rule west and the scene you're saying that they were only considering a third for it that's all that was presented no they said it was is the second phrase isn't it yes but sexual of sexual  of sexual conduct involving a minor is the third yes well so they really used language the didn't closely track with the second heard that they're happy it was less clearly written or advocated then it should have been either way but so i do not understand this page for forty two of the gardner opinion at issue here is whether gardner has a prior conviction in virginia for sexual abuse involving a minor sexual abuse is the second term not the third term yes that's ok yes no we're talking about the exact same language and perhaps it should have been more clearly written or more clearly presented but i do not read that as a holding in that aggravated sexual abuse or sexual abuse must involve a minor in order to come within the terms of the statute but they will then say this did not involve a minor therefore it doesn't count right  s answering yes that's answering the question that was raised as stated in that opinion i would certainly be loath to ascribe to the opinion a holding that is clearly wrong clearly incorrect and demonst with reference to for example chapter one zero nine a so i certainly don't read that as a holding i don't read it as and the united states having taken that position or waived anything or can say made any confessions and i am confident that both that what i'm advocating before the court today is the position of the united states and fed every circuit court to have explicitly considered and result that question has done so in the manner that i'm advocating therefore i think the court should reverse