prosecution need not prove an age difference in order to obtain conviction under the utah things there are ultimately four things that i hope to tell you too about affirmative defenses and the mistake of age defense and to about age differences we'll see if that's ambitious the st point i want to make is a simple one it is that the universe of defendants who are convicted under the utah offense at issue here and the universe of defendants who are convicted of twenty to forty three the federal examplar are very different and the utah defendants  substantially less culpable than the federal defendants in the example or everyone who is convicted of twenty to forty three has either failed to persuade a jury of their reasonable ignorance of the victim's age or has waived that defense pursuant to a plea that is a very significant difference in culpability a defendant who acts in spite of knowledge or with no reason to doubt the victim's minority is both more to pray ved and more dangerous than a defendant who acts in spite of reasonable ignorance of the defendant's age the la which is the people who are caught by the utah offense have acted not by mistake but in spite of their knowledge of the circumstance that the law deems to be unacceptable yes if we exclude offenses that or that lack any way to litigate reasonable not reasonable ignorance of the defendant's age we will exclude a lot of statutory rape offenses but that is not as significant a concern in a case like this as it would be in a case like the job one where we are have a broader provision which is the sort of definition of sex offense which captures all of these and then another provision which is just attempting to capture a small subset of especially heinous often says and we can look at the company that t forty four in twenty to forty three or keeping in tear to stephan ition of peer to sex offense to see that this is targeting an especially dangerous brand of sex offenders it's always difficult not matter under the categorical approach that well under the id does this case doesn't have to reach the question of whether affirmative defenses generally matter under the categorical approach it doesn't have to look to look generally  whether the math this definition of elements of the categorical approach apply to apply whether where there are whether those apply to and generally throughout the categorical bush because in this case you have the text of a statute which isn't referring you to a general generic off since that we have to synthesize from fifty state codes like we did in memphis here we have a series of cross references we have a series of preferences from sword to twenty to forty four and did you have a position other than knowing the case and i'm talking about do you believe that there is a certain will be circuits when if we rule your way part from your own research do you believe there's a circuit split going to be created if we rule your way well there will be there will be a on the affirmative things question i'm not sure there will be a circuit split if we get to the question of age differences then there are some country authority in in have to win both of these claims the government has to win both that the strict liability nature of the utah offense and the absence of an age difference element in the utah offense defeat in united states versus young this court has already held that in general the tearing the the tear of the cheering provisions of sordo are subject to the categorical approach that reserve the question of whether the age might be subject to an exception for that but the phrase that that would be tethered to in to or to win committed against a minor does not establish a containers some important in this case because my colleague i think we could reasonably imagine who would argue with some force why would the congress want to have an exception if they got a court the approach for the victim age which person pertains to ages would seem to be readily established if it didn't want one for age differences which also pertains to age in a reasonably established but we have a background default rule that the categorical approach applies and so if there is an exception it must come either from the words when committed against a minor which don't create an exception for age differences or from the sheer force of the policy equities system what do you say to the person who says we know this person is much older and that there is a significant age differentiation and to not be able to pierce and look through here   the st is that if congress wants to write an exception for this congress needs to write an exception for this and if we are coming if the court comes in and rescues congress from xp or drafting then it's not creating incentive for congress to say what it means in a prior statute we already have a definition of what offense means in the st part of tier two and often means that the element the statute means that offense as defined in the statute and so congress has not created an exception to the categorical approach in the year two that pertains to this age difference the nd point is more addressing more  the government can prove because there are perhaps elements in a greater sense that the government may not be able to prove and we ought to honor the benefit of that bargain the diff but we have that is part of the important part of the reason for the categorical approach as described in taylor is that the defendant we only look at judicially established facts because facts that have not been traditionally established are facts that the constitution hasn't permitted that the law hasn't permitted the defendant to challenge with i constitutional protections that are afforded the final point i want i hope to make it's like a gotten through most of them is that there is absolutely no linguistic reason looking at the statute to think that the phrase when committed against a minor modifies the defendant's offense rather than the federal exemplars so if we look at the state text of a statute in two hundred and ninety one excuse me what reason is there to think that the phrase when committed against a minor which immediately follows the phrase following offenses is not modifying the following offenses which are the federal compare ors the significance of that is that if it is a restrictive flipped phrase when committed against a minor what it's really doing is adding an element to all of the federal exemplary offenses of minority because not all of those offenses  in fact the very few of those offenses five hundred and ninety one other parts of twenty to forty four house minority as an element the purpose of the phrase when committed against a minor is not to authorize application inquiry into qualifies under tier two if congress had intended when committed against a minor to be modifying that the defendant's often says it could have simply said a defendant  minor is punishable by one year not throw the restrictive phrase halfway down the sentence and put it next to the federal examplar offenses which might be confused with modifying it in fact that makes a great deal of sense and in the overall statutory scheme because not all of the federal it's employers house minority as an element so what it's really just trying to tell us is that all tear to sex offens matter that there is no wage differential requirement and i think it might matter if it went the other way well i think that if we were raising if we were dealing with that in that question under the then we would have i think we would have to confront our courts and narrow precedent about how narrow supreme court guidance saying argue window that roderick is still good law in that area right now that does not affect this case in any way i don't think so i think that because i think undermines rodriguez to the extent that it is applied outside the law in a day when we were dealing with a question that's just been right on point under the i and a then we didn't supreme court guidance is of less but it doesn't undermine rodriguez on the point about that there's no age differen requirement under generic abuse of a minor i would submit that it it does undermine its presidential force matter at does it matter for part of your argument one way or the other do we need to address that in any a fashion in this case lowest tier that's available under sort of i don't know what he wants us to do is to try to read an appliance travel wish case law regarding the categorical approach that's our that's our st step before we look at any practical consequences i mean you're you're you're just trying to poison the well by by putting it that way but that doesn't really answer the legal question that we have to change i think it is in florida your honor of how to interpret the provisions of position you're on or when you actually look at this court's precedents you start with the categorical approach and the categorical approach as this court has indicated as the supreme court has indicated is a focus on the elements of the office and the elements of the often ends in two thousand two hundred and forty three are that the defendant engaged in some kind of sexual act of sexual contact with a minor between the ages of twelve and sixteen when you focus on the that a tear to sex offender means a sex offender other than two year three who's often says punishable by imprisonment for more than one year and is comparable to or more severe than the following offices so the state honor i'm asking this court to interpret the provisions of twenty thousand nine hundred and eleven in accordance with department of justice guidelines in terms of power with implemented sorta with the circuit cases from the th circuit the th circuit in the th circuit of sort of suggests a circumstance the civic approach to age or minor because minor is you'd have to that's in the statute itself it has to say minor you have to status minor i agree with your honor you do have to establish that it is a minor and against minors between the ages of fourteen and eighteen fall into two year when you go back to interpret him sort of and again that certainly is this court's job to do we have to start with a language comparable to were more severe than and when you look at this court's precedents when they have applied that particular language you can see that doesn't necessarily mean that these statutes have to be identical in some way in united states versus  coleman a decision from this court the court recognized that the comparable to a more severe then language meant that the statutes don't have to be identical that the state offense can be slightly broader and that the will in the language of sources applicable because the question is whether the utah statute is comparable to or more severe than that's been applied in coleman it's been applied in young and i think looking at the specifics is intent to abuse the the state statute involved touching with sexual or aggressive intent the federal office required intent to abuse or gratify sexual desires this core of the argument there was well the minnesota office includes touching was simply aggressive intent not sexual intent and this court rejected that position saying that sort of broad purpose means a comparable statute to be slightly broader than the federal crime because so these courts in making this determination some flexibility young or similar young involved in mississippi off instead criminalize the sexual touching of any body part and the comparison there was to a federal and forty three that identifies the specific body parts so under the states actually to be any body part under the federal statute it was narrower it to be only certain specific body parts as a n the statute so in effect a person violating the mississippi law at issue in young may not have engaged in conduct that would have violated the federal law yet that this court will the often skin taint comparable elements even if the body parts that are the subject of the touching are specifically listed in the federal definition but that are not specifically listed in the state definition so the the point being the language of twenty thousand nine hundred and eleven requires an analysis of whether the state often says comparable to or more severe than in this court has already recognized on two different instances that that means the state office can his statutory rape off and outside of category two year two you have a position on whether if we consider the a permit to defense that that creates a circuit split or not those cases are those cases that we talked about a minute ago what was your view about you my position on that issue was that by considering affirmative defenses in applying the categorical approach this court would go will be going out on its own in a way that isn't supported by error do you believe that the government could show harmless error here or you can see that this would not be harmless i can understand why the government made that argument in the brief but i'll tell you standing here in front of th fight that point i don't think you need to do that i think the government should prevail on this question of the affirmative defense there are no supreme court cases i have not identified any circuit cases subject to the  government came to the police hearing with the defendant in or his guilty plea the government put him into tier one and that was his understanding with the innards his guilty plea and yet when the government got to sentencing in that case the government had changed its position and put the defendant into tier three resulting in the four level it just went to his office level and then nd in that course analysis of the issue alternately it says that the political standard is whether the statutes are identical and then i'll just touch briefly and i recognize judge smith your concern that obviously it's about interpret in the statute but i do think that interpretation has to take into account for the practical realities of what's happening in the st is that many there are many affirmative defenses in state law and there's many affirmative defenses available in federal law and if we expand the categorical approach to suddenly start looking at all the bailable affirmative defenses this could open up we also try to interpret generic versions of federal law at least in the aca context in the eye in a context not so much in sort of as those often says are listed but what are generic affirmative defenses what's the generic version of entrapment address or coercion or insanity ultimately also that that my colleague indicated that only about a rd of the states do not have this affirmative defense in the statutory rape context in perry the utah supreme court case that he cites that who are dedicated says that it's a majority of the states that do not have the available federal tent to engage in criminal sexual activity in abuse of sexual contact two or three includes aggravated sexual abuse abusive sexual contact against a minor who is not attained the age of thirteen kidnapping of a minor  position that the affirmative defense somehow takes the utah sexual abuse statute statutory rape statute out of the scope of c o two turn into the age differential  all except i had or not have a particular case exactly on point but we do have is the th circuit in the th circuit in the th circuit recognizing that age is something that this court can take a circumstance question but it's certainly true that the same reasoning would extend to this question of age differential we're talking about felony often says we're talking about offenders or over the age of eighteen there's no text that says cases that have interpreted this text is that age and i think by extension age differential is something that can be easily determinable by it absolutely right i don't have a particular case directly on point ensnare is many offices against children as possible this court also recognize that it's the purpose was to eliminate potential gaps in loopholes under preexisting standards by means which sex offenders of aid but just ration thirteen or in the highest most severe category on offenses against minors between the ages of fourteen and eighteen fall within the nd category i think that's the intention of sort of the purpose being to sweep in that broad way that the other point that i think is important here is that what on versus holder says in this context the johnson turpin the i in a different statute different statutory text but what that court with the supreme court said there is that in the context of fraud case we can look to the specific circumstances to determine the loss of melt and whether it exceeded ten thousand dollars the calculation of loss in a fraud case is a much more challenging difficult less objective of an inquiry than the calculation of the ages of both the victim and the defendant in a  offense case related lean would show on says if we we don't read the statute to require certain specific circumstance specific approach to aid to loss then we're going to render that they will it will not sweep in a whole category of different states you know burglaries and all of that so that that doesn't answer the question if it were to leave out a group of people because there's no good match  says simply is the aggravated felonies a sexual abuse of a minor and the court there recognize that the california law was unique because eighteen it was the age of consent and the court was very careful not to address the question of the age differential the court actually set that issue aside at the end of the opinion because i think it recognizes the varied state laws at issue here and if the court takes this path that only certain laws are certain age one of them is roebuck it doesn't have a lot of discussion of it but it is does have the virtue of being a sort of tearing case and so that is that is the that authorities on some point supports the defense position the nd it is go much tension with that case to rule in the defendant's favor on the affirmative defense question here because sexual abuse of a minor is a generic all things and so we that the court then is tasked with the the job sometimes the very onerous job of compiling all of the fifty one state statutes in d c and synthesizing a generic oftens and in that case that where the court is doing its own job on its own work in deciding pressed argument that the word comparable would authorize you to ignore the two differences between utah and the and the federal exemplar in this case i think that the standard that set forth in  is it does seem to be discords final word on the matter so far is that is that it in offense is comparable with the difference a slight and i don't think a mistake of age is a slight difference in the culpability of the offender that's that's at issue that is the difference between an intentional crime and strict liability crime that's a that's a major difference between the statutes i don't think age differences is slight either now maybe a difference between a three year age difference in a four year or two year for that could be disregarded potentially a slight but utah has no element case in chief element at all of an age difference and that is that the difference  culpability there is very significant that that is a very controversial issue about statutory rape offenses where in there is when the parties happen to be on opposite sides of of the age of consent but they are there group together that's a very different matter and in terms of culpability i don't think the comparable language helps the defense here and finally just to highlight the point that iran are made about subsection c in the in the exception for for age differences to the the the definition of a sex offense in the st place whether you get a disorder in the st place there is an exception for offenses that don't have this age difference and that demonstrates one that congress has an age differences in mind and then we might have expected them to appear in the for the phrase the putatively creates an exception to the categorical approach for the age of the victim if it wanted to do so and it shows that by the authority of the ones i was medina that congress knows how to dispense with a categorical approach for age differences when it wish to do so and it hasn't done so here