public defender's office here representing the appellate mr out and you know the issue before this court as simple as mr young a tear one or two or three offender but is made more complicated due to the complexity of sort of the seemingly problematic as a sex offender pursuant to a prior conviction that he sustained under mississippi code ninety seven twenty three at sentencing the district court overruled application of the categorical approach to determine mr offender rather than a tier one if we apply our on bond decision in that case you know we're a case do you have anything any specific examples that you would use to say that it's not just the radical daughter we don't have any state cases from mississippi that have applied the case examples that were required by doing this alvarez however we would like to point out that rivera was not a sore the to the classification case it was an illegal reentry case that dealt with aggravated felony and handsome and now we do that though all the time now we say i think we did that ellis we say that in cases that if you have to have a real life example that it's not just theoretical and i think ellis was the first case that we started doing that it does so it doesn't matter if it's exactly in the same topic criminal criminal statute it's just that's the only required finding that the texas statute offense be described in the federal code woman is just a case that it didn't matter which with the with one or three at it was i mean whether it was categorical or not it was still going to be and that was the point that i wasn't the point of that saying even using the most rigorous categorical let's just get to it it still doesn't matter and that's so it's not saying that that is the methodology that or they th rivera wouldn't apply your honor we would submit that while this court did not explicitly hold that the categorical approach was applied they did not use that magic language what they did say was that based upon the plain language from the store the statute that there was a any examples well your honor we do not have any mississippi state cases however we would submit that we've presented similar cases from other jurisdictions that have felt fetishes and french kissing and other conduct that was other courts made a bomb is not really relevant to make a determination what he said he would that's correct your honor we have offered persuasive authority in the hopes of showing that there are other statistics ins out there that have found sufficient case why isn't this minnesota department mississippi statute comparable to the sort of statute why is there not compare ability here yes your honor thank you that was the next point that i would like to make the mississippi statute ninety seven five twenty three covers a much broader range of conduct and minnesota statute for sexual second degree sexual conduct but coleman says it doesn't have to be identical that's correct it does not have to be identical it can be comparable to which this court plot a slightly broader analysis to we would submit that the mississippi code ninety seven five twenty three is much broader than just slightly mississippi code ninety seven five twenty any part of the body is touched minnesota statute required to intimate parts of the body touch any part of the body is significantly broader and as judge jolly just mentioned holding hands could possibly be found sufficient for conviction as long as the intent of either satisfying one sexual desire or the gratification of lust was also present and we're not disagreeing that the intent must be present because under the federal abuse of sexual contact you must have an intent of humiliate harass or to arouse sexual desire and we believe that those are comparable for intent purposes however for the elemental purposes of what part of the body may be touched we believe mississippi is more than minnesota and the federal abuse of sexual contact now to be sure though however whether the analysis from joe coleman whether up next you'd need to be sure whether the analysis through come is comparison of the plain language of sor no or through the categorical approach which we believe is appropriate here our argument does remain the same it's because of that one element of that any part of the body that must be found the mississippi code which we believe criminalize is a much broader range of conduct than the federal abuse of sexual contact code my colleague mr bradley has cited to two fifth circuit cases where the circumstance specific approach as c consensual sex as a defense where based upon an analysis of the elements this court found that the conduct was relevant not the elements of the statute again it was not a source material classification case so we don't believe that it would apply here of the other two cases that were cited by mr bradley one was an eleventh circuit case died and the other was united states versus schofield from the circuit those two cases also did not apply to sworn the tear classification issues rather they are the issue was whether transferring of obscene material was in fact a sex offense that required someone to register the  to the residual clause language and importantly this is not a residual clause issue case it's a source material classification we agree i believe that sixteen nine eleven for eighty two for abuse of sexual contact is the only statute that's important for this case now we would submit that back to doing this alvarez that the plain way in which at issue requires that scase the majority of the facts of doing is alvarez a removal case not a sworn to request cation case argued that the california is natural and probable consequences doctrine via and aiding and abetting theory made the california of the healer theft statute more brawl and criminalize conduct that other statutes would not other states that each would not and that's the difference between mr young and doing a salver us we're plowing the pla ninety seven five twenty three that anybody part in a comparison with the federal abuse of sexual contact which lists six specific body parts those body parts are the  not arguing that the intent from the mississippi code either the gratification of lust or the law since your sexual desire is addition we believe that is comparable to the federal abuse of sexual contact into a requirement for intent to arouse sexual desire  get stuck on isn't this just comparable again your honor we would submit that any body part suggests that any part of the bodies might be relevant for conviction as long as that intent requirement is also failed federal abusive sexual contact limits it to six or french kissing those can all be sufficient under the mists of the statute however if you were to compare that to the federal abuse of sexual contact it would not be sufficient because there was no touching of any of those specific six body parts back to would anybody actually bring a lawsuit for someone holding hands or fist pumping or high five even if they had some weird or maybe i should say weird some sort of different fetish for that out there that suggest fist bumping french kissing any sort of fetish has been prosecuted under ninety seven five twenty three other jurisdictions have there's a california case that was cited in our reply brief people  french kissing was relevant under her sexual conduct in a very similar worded statute that mississippi ninety seven five twenty three has we also would additionally point to the christie rivera a believe it was a concurring it may have months the high end of the guidelines he would have faced only ten to sixteen months as a tear want to fender additionally as a tier three offender he will have to register for a longer period of time and more frequently than a tier one of the under now the government contention is bradley references a few statements from the sentencing transcript where the district court stated that it was seriously considering varying from the guidelines but at this moment i don't see it i'm not going to do it the second statement is well that's the reason i was considering departing upwards and if i see you again i'm going to keep that in consideration and all that can be gleaned from these statements is speculation there was no particular sentence that was definitively stated nor did the court definitively state that it was going to vary up hours in fact we would submit the opposite is true that based on those statements the court talked itself out of having to bury upwards and decided to susan bradley i represent the united states for purposes of this appeal and in the proceedings before the district court in this case is the government's position that the court did not procedurally when it determined that the appellant was a tier three sex offender because first of all there was no supreme court or fist circuit precedent in effect at the time that required the court to apply a categorical approach in determining his two year second of all even if the court applied the categor the mississippi funneling or less or touching statute is comparable to federal abuse of sexual contact and not substantially broader and third the facts of mr young's case the appellant clearly qualified him as a tier three offender i'd like to spend some time talking about why the court did not procedurally or and then talking about why the mississippi statute is not substantially broader and is comparable to federal abuse of sexual contact and f some policy concerns and about the application of the categorical approach particularly the rigid application of the categorical approach as it applies to someone and defendants if the court would like me to take that in a different order will  at the time that mr young the appellant was sentenced in this case there had been a few decisions in this court that we could have looked to nothing specific regarding a sex offender and his two year in two thousand rubio we have the two thousand and fourteen case of united states versus gonzalez and do you know where this court found that circumstance specific approach was the correct approach for determining an age differential and whether a defendant was required decide which approach categorical are non categorical was most appropriate because mr schofield's conviction would qualify under either it wasn't until after the appellate was soonest in this case that this court decided the case of the united states versus coleman in march of two thousand and seventeen wherein you applied a categorical approach to determine that mr coleman's conviction on the minnesota criminal sexual conduct statute was comparable to federal abuse of sexual contact matters long as it was preserved and they were prescient in and dissipating that the law was different certainly doesn't preclude them from bringing the argument but i guess my point is district don't know right was preserved in that case that very case in the event could have been that case that would set the law as opposed to coleman certainly the appellant has every right to make the argument that he's making here today we have to fix it reasons for applying a circumstance specific approach when mr young was senates and that was basically we knew what mr young had done and there was no dispute there was no question about the underlying facts of his conviction th to some other person's not even there and we do that all the time cause us with the supreme court's told us we have to do we do but the supreme court has not come out and told us that we have to do that and so on a case that the categor cases and that really brings up some of the policy or game and said i wanted to make and when i make things i mean no disrespect to this court or any other court that has said that the categorical approach is appropriate but i think there are is that unusual that i think that's different from other cases where the categorical approach is a different and i think we have these registration requirements for our sex offenders because  concerns that congress had for the safety of children because of specific recidivism concerns in these cases because of horrific crimes that have been perpetrated by sex offenders that we can all recall from the seventy's and up through the two thousand and so this is the only category of offenders where congress is and we need to keep track of them the public needs to know where they are you know per question that if that's the case then why do we even differentiate between two o two into your three well congress wanted to set forth requirements for how long they must register as well as are often so level in which ones we consider the most serious sex crime but yes the application of the categorical approach in particularly a rigid application undermines what congress intended to do it handicaps the district court by preventing the district court from looking at why these offenders are required to register and determining what tier they should be in based on that reason that they were required to register and it will also affect the amount of time that they have to register i think sort of cases are also a little bit different from other cases where the categorical approach is applied because in a storm the case we almost always know the facts of the underlying conviction that underlying conviction provides the requirement for registration it provides fairly much the basis for the failure to register case i think that could be differentiated from armed career criminal cases and immigration cases where the underlying conviction is simply serving as a statutory in handsome and i think that is the difference between sort of cases and some of the other cases where the categorical approach was applied by the supreme court in the i would you were attempting before we interrupted policy arguments and i guess what i'm trying to understand is doing so he was convicted of failure to register and we're arguing here just about enhanced ments and i'm wondering why are we even bothering with different levels of enhancements being wise enhanced manana failure to register to begin with and i wouldn't call in the hands not your honor but i think that you know as always we have to get to our base often says level and congress obviously wanted the more serious sex offenders to register for longer than the less serious sex offenders you know sometimes we see a case where an individual has touched a person on the breast that is less serious than an individual that has molested a small child and so we have the s i mean how do we get by other than this kind of groom proof well you know in each of level three sets forth a number of ways the defendant would qualify as a level three level two sets forth the types of statutes and qualifying level and the say so i think there is direction for that it's district courts as to which tier to apply but i think the difficulty becomes when you apply the categor approach and the district court has to instead of looking at the facts and saying ok this is this individual's a two year three offender now they have to make the comparison i would say a difficult comparison between a federal statute in the state court statute calls in sort of cases look at the coleman case there were only a couple of words that were different i think between the minnesota statute under which mr coleman was convicted and the federal abuse of sexual contact and yet just because of a few words difference there was a little legitimate appeal that resulted where the court had to determine was it substantially comparable was it comparable or not not broader it was res and they the rule is that if there's if it's just a little bit broader then it's ok even under categorical i think this does open the door for a lot of appeals though because each state has dozens of statutes that require registration and so are we now going to be looking at the wording of those statutes and trying to compare each and every statute to a federal statute to determine tier one already and robbery and all these other one we do i just think that these cases are somewhat different based on the concerns that congress had about sex offender in the intent of congress to make this a broad hitting statute we've just received that these aren't delineate a list of body parts does not make it substantially broader because of the intifada act or that is there there are two ways that you can violate that mississippi statute to intent factors either for  gratifying lust or indulging to pray plus inches sexual desires i would argue that that is less broad than the intent factor under the federal statute which can be violated when you touch with intent to humiliate or or harass i would argue that the federal statute is broader because it has bob different intent factor set forth we're talking about is whether you can be liable for holding hands or fists bumping etc and i had is not an invitation to apply legal imagination all the possible ways this statute may be violated if we don't get to imagination if we didn't have the overlay of christie rivera when a somber as put that to one side that's the next step straight up categorical is this more than slightly broader because it allows you to be viable for hand holding it seems like it might very well be more than slightly broader understand you say it's narrower on intent but we're talking about is on body parts i think the intent factor is what prevents it from being substantially broader it is substantially broader in body parts though under the more than slight latitude any body part radically would qualify if it was done for the intent to ratify lust or indulge to pray plus into sexual desires but my argument would be you're not going to have that intent present if you merely face bob if you touch on that there are lots of people with all sorts of very different sexual predilections yes and that may be and again i have to fall back on the argument that the mississippi courts have not applied the statute in that way it has not been applied in a non sexual way you know and if the appellant needs to show that it was applied either to him or to someone else in that way he certainly can't show that it was applied that way in his case we know what he did and there are no cases that have a found where it was applied that way elsewhere we cited a case in our brief bradford versus state in which a defendant was teaching children on the butt deer in a car ride and laughing and blaming their own another child that was in the home arguably under the federal abuse of sexual contact statute that would qualify because he's touching the buttocks and one could argue he's doing it to humiliate or to harass but the mississippi supreme court overturned a jury conviction and they said we do not that there was a sexual intent here and i found no other  cases from the mississippi supreme court where the statute was applied and then on sexual way most sexual way but in a not would not ordinarily what one would traditionally think to be a sexual i'm going to throw the book at you next time i don't understand how that shows the harmless error here and i would concede i suppose that the harmless error argument is probably my weakest argument  arts i think that there's enough there to argue it was harmless error because the district court said i'm considering an upward departure because of your horrible criminal history i think the public needs to be protected from you  district court referenced isn't tiant or at least its consideration and upward departure at least twice during syncing so if the district court determined that twenty four months was an appropriate sentence and finally settled on that i don't think that there is any hope that the district court would have sent it slower than that however i understand the district court didn't come out and say i was given twenty four months regardless of what your often slovenliness i guess part of my argument was in know in the district court judge and c of the facts that he referenced on several occasions his consideration of an upward departure from the eighteen to twenty four month range ok about the appeals to you about undermining the intent of congress and three what happens if we decide the categorical approach and particularly a straight categorical pro choice now appropriate and sort of cases what happens to those  already been sentenced we've done a number of these cases in our district and are we now opening the doors for every so often a defendant who was a tear or two or tier three offender that was not there was in this before we use a categorical approach or we open the door for them to come back on the twenty to fifty five and say my statute is broader than just want to in boxing that i think the the fourth circuit opinion the concurring opinion by judge wilkinson of the four circuit in the united states versus dr correctly sums up some of the concerns about the categorical approach and it's straight down with coalition and basically in that case judge wilkinson said that you know we are getting away from what the supreme court intended we have reached a place where our sentencing regime is explicitly at odds with reality and we have now cases where we look at defendants and we assume that their conduct is based on nothing more than the very least of the acts criminalized were undermining the role of the district courts at sentencing were undermining the efforts of congress and undermining the protection tear classification issues those circuits the first the fourth the sixth the seventh the ninth the tenth in the eleventh we believe also that this court and united states v coleman applied a very similar analytical framework for determining whether or not the state predicate offense fell under that federal label of in this instance abuse of sexual contact by comparing the plain language of the minnesota statute to abuse of sexual i was wondering about the situation that it says that the person with mental health the that seems to be divisible that part of it and so do you see what i'm saying is that's a separate category of people as opposed to minors and why isn't it visible and help me out with that you know this is very difficult to do with the statute and i believe the mental health element that you're referring to is that that's under the tears three that those were the only elements that were relevant for parsing out ninety seven five twenty three and that is why we concluded that indivisibility of the statute was was more properly the second thing that i would like  to direct this court's attention to was that we just wanted to submit that we are not undermining soren is intent at all what we're trying to do here is a plot of a categorical approach granted a categorical approach is essentially the rules against properties of criminal law it's one of those complicated almost antiquated methods of trying to establish how these two statutes are comparable a lot of defense attorneys you know have difficulty in doing this but we're not trying to undermine someone or what we're trying to do is apply the precedent that has been set forth under the supreme court taylor and discounts and then other circuits that have addressed similar issues the final thing that i would like to say is that ms bradley also pointed to the intent argument and again we would just like to submit that the intent is a requirement for conviction we're not we're not objecting to that we don't disagree but if that intent has been found the one thing that this court must decide is whether any body part under mississippi twenty seven five twenty three is comparable or slightly broader than those six very specific limited body parts under federal and the use of sexual contact and we would submit that is if mississippi kind of let's say that they had the language intimate parts then that would be comparable to that when you submit that any body part is the plain language of the mississippi statute that is clearly more broad than the six specific limited numerated body parts the ruling that mr young seeks will implicate how this court will decide similar issues in the future the categorical approach circuits in determining whether the proper method for storing a tear classification is the categorical approach applying either approach the plain meaning or the categorical approach to the facts of this case demonstrates that ninety seven five twenty three criminalize is a broader range of