concerns sentencing guidelines section two way three point five a which is used to calculate the advisory guideline range for soaring up violations this is one of first impression before this court the government this morning is going to ask you to a get to go against all other circuit courts that have ruled on this issue to do what the government  asking what open the floodgates they want this court to rule that the circumstance the civic approach or the non categorical approach applies when calculating the advisory guideline range for sort of violation when the guidelines themselves use be categorical approach to determine the base offense levels in order to calculate and vice three guideline range for sort of violation into three tiers depending on the seriousness of the underlying sex offense so incensing guideline to a three point five they basically have three different base of funds levels sixteen being the highest for two or three well i would say it does provide good guidance because of no is the fact that the court suggested that the circumstance the civic approach would not apply to other subsections forty two u sixteen nine eleven because as you're well aware of your honor in price the question on appeal was whether the south carolina conviction satisfy the definition of sex offense and so the whole issue on that appeal was whether the indictment should have been dismissed because that defendant claimed he wasn't even required to register under soreness mr berry's case is different because he's not disputing that he was required to register under sor not so because it's two different issues it's our position that the circumstance pacific approach would not apply because  categorical approach for the offense because they're all generically defined so however at the same time you do have to look at the so you can only use a circumstance specific approach when looking at the age of the victim which you need to know in order to determine which tier classification so i do not dispute that at all but in this particular case what happened was the district court didn't even apply a categorical or in modified categorical approach the district court didn't even compare the new jersey statute to sort out that was not even done so determine what specific category which tier mr barry was going to be subjected to because for two or three they have  excuse me so for tears three they have to do it had to do more with the age and the judge did not analyze  actions that were taken by the defendant and the defendant though in the end was convicted of child endangerment and so looking beyond what he was convicted of the judge went and looked at other who went to a police report actually so what happened was it certain seeing the government didn't even introduce shepherd type documents the only thing they relied on were the police reports was saying that she could not look at the underlying facts because that would then create a mini trial and she also a judge to to the fact that they were only relying on the police reports well the withdraw that motion but one thing i wanted to go back to is the fact that you have to keep in mind a sentencing judge does have a recourse because we have to remember the whole point of sore not was is to punish sex offenders they specially want to give extra punishment to those who abuse minors so adopting the approach that we advocate which is a categorical approach or even the modify categorical approach a judge still can do an upward variance and still look at all the underlying facts and i think that's very important this defendant has not been accused or convicted of sex i think that is something that the district court can go into because in the end what we're going to have is if the judge is required to do a categorical or modify categorical approach then we have new jersey i'm just arguing in the sense that new jersey came up with category tier level two ok and we have presented an argument that we don't see them a better one sorry we don't give any deference to that actually writing the brief we decided this was after real father motion we decided that argument had merit and that indeed we think it is correct and therefore because we want to help the court to reach the right decision we think this issue is ready for the court to decide and as that price supports are under question it's it significantly supports us or uk and the reason is that the court's opinion in price gives a detailed analysis of how now look at is about the definition of saxophones which determines whether someone is a sex offender or part of a register at all but it turns out the lessons that the court explained in price apply directly to this case and indeed we think that it controls the outcome price looked at it the same three factors the supreme court identified that it can't decision in its earlier decisions and when you do and don't apply the categorical those factors are the purpose and text of the statute the sixth amendment implications in the practical difficult in all of that in these cases you've got all i'm got it's swearing matches do i mean we've got children involved and you all want to have a full blown hearing to start all over again in the record will show you how old she was she was five years it's that's not really my point is actually that the government won't necessarily or even often or maybe only rarely cases actually need to present the victim to testify a lot of times you will have another in this case it was a police report now there are plenty of other doctors that are miscible at sentencing here to prove this kind of thing that do not raise those issues there are other sentencing guidelines that absolutely call for circumstances to approach look into prior conduct before the  saying and this is this is what i mean in terms of how this relates price price already allows this exact conduct that we're debating whether many trials are our current different term or whatever price already allows that exact two thousand to conduct have looked at this issue that is one of the reasons because they didn't grapple with that question that they didn't reach the right answer and as i said of the very beginning we're asking the court to reach the right answer even if that is a different answer of the four circuits if they've gone the other way two of them did it it starts to feel like it is the default but it is not something we make things preached me and i actually disagree and this goes to the practical difficulties i think one thing we've learned over the couple of decades of experience with the categorical search is that it is anything or more severe than a list of the sexes and just looks and i have to respectfully disagree that comparable means categorical in fact her daughter is not cap is not comparable to a cardiologist hard doctor is a cardiologist so i jersey statute is is brought to me it's maybe complicated in other cases but the problem here is that in order to be convicted under the new jersey statute that have i think what i'm trying to said is that by not using the language is in this court price said congress knows how to apply the categorical approach and even did it in other parts of sort and the fact that congress didn't use the terms in congress in the arm for criminal i didn't say absolutely no meeting if you have a categorical age because you'd be purely looking at a match of elements you would do if you go that way you'll do what i think the first time circuits did incorrectly which is rewrite the statute to change comparable to or more severe than in just mak congress didn't put is in congress could have and we know the purpose of the statute is brought it is to protect the public from sex offenders the guidelines and term think that punishing someone whose conduct in the conduct is what were the conduct is what harms the victim if you're one of hundreds or part of a register for fifteen years to or two for twenty five years to or three for life so if you are going to defend it who committed the offense twenty years ago whether he is guilty of the offense of failing to register depends on whether he's a tier one tier two offenders of your own or to your point yes sometimes it will result in setting people free and i do think the analysis probably has to be the same for figuring out who's tier for purposes of whether he's guilty of the offense at all in his two year for whether he's guilty or whether he receives a fourteen twelve was too long ago it would be a tier one even if that we would actually go before the jury everything we can bring everything bring the victim we can bring all those people in to prove underprice that it was a sex offense and then would we be told ignore all that we'll figure out that here without at a possession of child pornography offense and even though it applied the kind of work look it needed the congress used the phrase relating to describing the offenses and said therefore the crime reference in the indictment does not need to satisfy the narrow definition o thank you i am asking this court to not follow the government's approach as has previously been discussed and as has been laid out in the briefs we don't want many trials were a victim has to come to court to testify that defeats the whole purpose of basically our guidelines we have to keep in mind that congress knows how to needed an element based analysis doing that makes this the usage of the categorical approach the correct approach in this case the other point that i want to make is issuing a decision in this case would not be overruling price is i stated earlier price is not directly on point because in price the specific issue was whether the south carolina offen required that particular defendant to register under sort that's not the issue in our particular case we agree that mr perry had to register under sort of our question is whether this would not overrule price because again price suggested that the circumstance pacific approach would not apply to other subsections sixty nine eleven and they were making a specific analysis under subsection seven