this case does not require the court to create a circuit split to rule in walker's favor when the temp in the th circuit created an exception to the categoric and probes they were dealing with the advisory sentencing guidelines the primary issue in this case is not a gun line may have been four years i don't know if that's the actual time he did spend in custody though given that he was in illinois they were say not a truth in sentencing regime at that point he probably spend far less time in custody but again that's not an issue that has been raised here and i don't know that the regular stablish is that necessarily served four years but again the primary issue here is whether he was criminally liable during the entire time for now answering that question does require the court to determine soreness tier excuse me walker's  four original counts in his charging documents he pled to only one of them one of those counts did require victims under ten years old and had you been found guilty of that count that would have necessarily complied with the age threshold that twenty three requires particularly in this case is a prime example it deprived defendants of the benefit of the negotiated plea deal so yes absolutely there are statutes that would comply with tier three but of requirement a lot of statutes don't i agree with that but there are those that still do implemented and employ the category approach they made no distinction for facts that a judge might easily discern from facts that might be more difficult to discern so i don't think that's a rationale to deviate from the get court approach can be on it the text itself does not call for statute with certain federally defined offenses they may use exclusively the term offenses nowhere does to your determination directly inquiry into specific conduct like that for everything in rogers was addressing likewise  a civil statute but it is a criminal provision that would otherwise be submitted to the jury whether or not the defendant committed a violation of sign a which means that the jury has to decide whether the age of the victim and roll with me a crucial component of sexual assault crimes that is something that has to be found by a jury walker's crime contained age element countless crimes and age elements even congress are separated out different age bracket established that he actually served four years in prison that was his sentence but there is nothing in the government has an argument that would establish concretely the amount of time he was actually in custody so if the tolling provision does count we need to know how much time he actually spent right now we don't know and i suspect he did directly call for comparison of statute not relating to what comparable to some more strict determination here so the idea that different age qualifiers can nonetheless because they might be related relatable in one case that doesn't make them comparable in determination i think your honest questions are exactly correct fourteen year olds i don't think are included categorically within that category those incapable presentation of the conduct the harm sought to be prevented by child sexual assault statute is their inability to form consent not the inability to appraise nature of the conduct that's a cognitive limitation that's reserved specifically for those without any age limitation who simply can't appreciate the nature of the conduct moreover congress would have said children are in this group if they ment