all right we'll hear your thank you your honor may please the court my name is mark t bird and i represent mr david nicholls i'd like to point out what i see is the two biggest errors in the decision of the court below and also or with the police when he left rockland with failing to register a new address after he left and the district court did that at page forty four of the report recommendation which of course is what's on appeal here and by doing that it then a proceeded to apply the distinction between failure to register a new address and failure to update registration which leads to a completely wrong analysis for two reasons one that's not what mr nichols was charged with and it's not what he was convicted of and two after mr nichols left rockland he never had an address that he was required to register under california law with california well  i don't see it quite the same way as you so i'm yours driver stan i'm just trying to get you right to i got crosby beach ward i understand this is a sandwich of twenty six to life for failing to register after a change of address and which seems to be exactly this actually i would argue and i believe that what is much closer to this is the gonzales case which found that it was cruel and unusual to impose what the reason crosby doesn't apply in my opinion is number one that is not what mr nichols was charged with he was charged with failing to unregister after he left if and number two once he left he did he wasn't required to register with california this is a california registration requirement if he's out of the state which he was and there's no contradictory evidence to contradict that then he's not required to register with california if he's interim transit for less than five days within the state he's not required to register with california that's what he testified was the fact there's no contradictory evidence and the prosecutor agreed on cross examination of mr nichols that that was a correct statement of the law but it isn't it's so old that he no longer lived it is last registered address at the time of his arrest wasn't letter answer my question k if he's no longer living in his last registered address right at the time of his arrest then why is does his failure to register not impede the police's your your characterization of the facts what i'm trying to do is say what happened in this place and would it fit with the same stuff that crosby said if it won't it won't because i wanted to i want to concentrate on mad because i'm stuck with crosby because you may not be but i am in the public he was not required to be under surveillance after he left rockland he was out of the state which under california law does not require him to register california cannot and does not conduct surveillance of a sex offender when he's out of the state ok and to the extent that he was in the state for any brief period of time he was in transit for less than five days the law does not require him to make you know to register every day or every hour while he's traveling from place to place so rockland had no more interest and no more ability to put him under surveillance once he left and he was not subject to surveillance under california law once he left the state or was in transit basically  that the federal court used and the analysis that your honor was referring to didn't it didn't that impede the purpose of the statute that was relevant to the california court in analyzing the three strikes law and viewing the supreme court case considered that relevant to its determination that the three strikes law was not essentially on its face or categorically unconstitutional but defendant who skips town without telling the police where he was going and therefore they're after fails to give authorities in the information as to his whereabouts for recidivism here if you look at the gravity of the offense and you look at the facts it's a lot more like the failure to update a registration than the failure to unregister with a police department that had no more interest in him once he left but when i when i look at guns out this man he was still is i understand it living in the same place yes queso and mr crosby was not right and so when i look at your client he was not at the failure to do something which led to no harm which was not violent whether that is something that is well under great you feel to do something he had a duty to do and that's right he did well but the question is whether that's cruel  unusual the sentence that was a pike and it was a felony it was a felony and it was the third and it was the third strike but you if to the extent that the state is arguing that ewing somehow made that a categorical rule that if it's a felony then you know the rest of the three part test on the categorical excuse me the proportionality analysis goes up windows that's not true  v florida which has a twenty ten case says that hamelin and ewing are the same they both apply the proportionality test and in fact you did so it didn't reach the third stage because it didn't have to it found no inference or shelby but the same test applies and i would argue that what you have to look at is not how offenses are categorized or characterize because in many states what mr nichols did here isn't even a crime or it's a misdemeanor or we're not really we can't really put gayle's all on the current felony if we look at you and yet says we must place the scales not only on his current felony but also on his long history of felony recidivism correct any other approach would fail to court proper deference to policy judgments of the legislature crap so in this case we just don't have what he's now accused up or convicted of we also have pretty heavy crimes that are five to life because they looked at other sentences he dad prior in a lock here i'm not sure the five videotapes was much different than this but they didn't e was nearly identical to mr nichols prior record with one exception mr gonzales actually did commit a sex crime against a minor which did not occur in this case so if the entire totality both of what he did and his prior record in solace was not enough under the free part test that the supreme court requires that it shouldn't be here and you're right your honor i rely on gonzales and but what he was convicted i should be clear what the charge was is if you move out of the city you must inform the local police within five days of moving of your new address the argument that that city has no particular interest in him this is the mark that this is a state statute and the state has an interest in working with other jurisdictions to keep track of people who are hard to register so the state of california helps other states keep track of them other states up call for you so you can't just say because i'm no longer the burden of the local police there simply is no interest at all in my location so telling telling the local city that i'm no longer here means you can go into the state database and frankly you can go to everyone else who can try to find out where he is  i know there's been discussion of whether there was a majority opinion but to be clear the united states supreme court cases don't speak in terms of whether there's a majority opinion but whether there is he holding first is dicta and there was clearly we appreciate it and case thirteen seven zero four three is that the submitted