ok mr herman please the court the issue in this case this morning is whether the term crime of violence for sentencing and handsome and purposes encompasses crimes with the negligence mens rea of this case arises under the guidelines section two hundred one point t and it's enhanced meant for a crime of violence that section and its commentary defines a kind of violence to include a forcible sex offense and in turn the commission has refined that definition further to say that a forcible sex offense includes those often says where there is no consent or where consent is legally invalid because it is incompetent involuntary or coerced in this case the district court imposed a sixteen level enhancement under those provisions in mr lay sentencing because of his prior california conviction for rape the california statute criminalize a sexual intercourse under certain specific circumstances and the conviction documents show that mr ely was convicted under a provision that criminalize a sexual intercourse when the victim is prevented from resisting by intoxication and the defendant either knew or should have known of that condition the california courts have given a specific interpretation on several important points first although the statute talks about resisting in its terms the california courts have said that neither resistance nor force is an element of the saw fence the california courts have also said that consent is not an element that has to be proven nor is it a defense in this context that consent in that sense is irrelevant instead the california courts have identified the elements as being two parts first the incapacity of the victim due to intoxication and second the defendant's mens rea on and on that point the california courts have recognized that there's a two part mens rea as well there's a general intent and that goes to just the act of sexual intercourse which is not by itself a criminal act the second mens rea though that's been recognized goes to the capacity or incapacity of the victim in this case and that mens rea of the california courts have recognized as either knowledge or negligence as the court stated in lynnwood that negligence standard is one of an objective reasonable  in other words a negligent standard itself mr lay's asserting for basic reasons for the court to hold that the term crime of violence as used in the guidelines does not encompass negligently committed often says la again the model penal code and other decisions of this court on crimes of violence and of the enumerated often says lee account was the most important the fundamental purpose of fundamental reason here and that's because in that decision the supreme court decided that the term crime of violence imported more than just a negligent mens rea or accidental conduct is true that there the court was deciding for purposes of section sixteen whether the use of force substantial risk of use of force was sufficient to be a crime of violence but in reaching its conclusion the supreme court said that it to interpret those terms in light of the ultimate term that was being decided crime of violence and that's where the supreme court said that negligence and accidental conduct are excluded or should be excluded because that's not what congress intended the supreme court then carried that forward in began applying later kells analysis and applying same standard to hold that negligent conduct is not reached under the arm career criminal act through the term violent felonies applying that same reasoning the model penal code also offers a model not because this court has to look to it to determine a generic definition but because it shows the general status of these types of often says and whether it's in terms of the model penal code statute on rape or gross sexual imposition or sexual assault all of those often says that combine a sexual oftens with incapacity look to at least a mens rea of knowledge but not negligence and then finally this court has issued a number of decisions under other enumerated often says where the court has held that negligence is not included within the generic meaning of those offices whether that might be manslaughter as opposed to criminally negligent homicide or aggravated assault but the import of all four of these and especially sources and especially  definition but the sea documenting guidelines gives us a specific definition for school sex offense is where consent to the conduct is not in you with the definition is is that a rule is simply here under interpretation that we're looking at fault forcible sex offense we're not under sixteen a in the general definition a little concern about making sure that there's some integrity rigor in applying th considering both parts of section sixteen we cannot forget that we ultimately are determining the meaning of the term crime of violence and that that suggests a category of violent act of crimes that cannot naturally or cannot be said naturally to include constitutional dimension to this was or that a crime of violence can't be something else so if the guidelines reasonably interpreted make it something else in a specific category i wouldn't violate anything  me that's to your honor i'm not arguing that lack of sets a constitution you can say that i don't imply you did go here it's simply in terms of the definition of statutory definition of the term crime of violence and how that has played through in the supreme court subsequent decisions like the gay but specific lee with regard to this guideline provision first of all if we look at the guideline itself in the use of the term crime of violence we look at the definition that it gives in the commentary which lists you write it off and says and we look at the text of the amendment that it did the parent that i call that added that terminology about legally invalid consent none of those addresses the issue of the appropriate mens rea or even looking more carefully at the text of the amendment language that the commission made it clear that it was providing that parent that it go to adopt a position contrary to this circuit's reasoning in cases like stormy into fullness and luciana rodriguez and the main issue in those cases and what this commission said it was overturning was this dichotomy between factual assent and legal consent so they wanted to bridge that divide but they certainly didn't address this issue of mens rea and in fact looking at the cases that are cited in the text of the language of men or of the the amendment itself they for furch knowledge as the mens rea that they were dealing with for example in louisiana rodriguez for insomnia to fullness so they didn't have the opportunity weren't called upon to issue  any sort of guidance about this issue of mens rea but they certainly were when they made the amendment making that amendment in the context of later cal this amendment came into effect in november of two thousand and eight and th preceded it by four years this amendment also came into effect after big a which was decided in the early part of two thousand and eight while this amendment was being formulated so the supreme court's background was already there in terms of how to interpret a crime of violence and the guidelines and the commission in all of these different acts with regard to one point two didn't have the opportunity or wasn't called upon to deal with this issue of mens rea up and that's why mr lay's asking the court to go back to these first principles like the supreme court did and lay a cal and a look at the a term that's being interpreted under the guideline which is crime of violence and you interpret that term consistently with what the supreme court did and lay account and here it's clear that the california law the specific subsection of intoxication rape includes appearing negligence mens rea as the basis for the act that makes the the act a crime it constitutes the illegality it's not with regard to any other potion of the act the general intent goes to an act that is not in and of itself criminal and it's the negligent act that rendered mr lay's conviction a criminal act in this case so for all of these reasons your honor we would ask the court to vacate the sentence and remain to the district court for further going to let you pronounce your name so that i don't mess it up it's really a crazy last name it's barry you're on very r i think how it is i used to be drake which is easy for me and please the court loretta berry for the united state california courts reject glaze over breath argument that rape of an intoxicated person can be committed by mere negligence as to the victim's inability to legally consent the lynwood case is still the current law in california on rape of an intoxicated person and that case recognizes that rape of an intoxicated person is a general intent crime it's an intentional act that cannot be committed by m negligence this distinguishes this statute from the offenses upon which a labor allies such as lee a call and began those cases were driving under the influence and also distinguishes the case in sight in their brief criminally negligent homicide those cases those offenses can be committed by mere negligence whereas this statute the california courts have been very clear that it cannot be committed by  negligence the knowledge requirement that the defendant knew a reasonably should have known that the victim was too intoxicated to give legal consent requires actual knowledge or constructive knowledge it page seventy one and seventy two of the opinion note six the court discusses that perhaps that's an in artfully worded statute but they're not they're not relying on a civil negligence standard they're not saying that it can be committed by mere negligence or carelessness the court is very careful to note that it's an objective test whether a reasonable person should have known that the victim was too intoxicated to give legal consent such as by slurred words or unsteadiness and is crucial to remember your honour's that away pleaded guilty to this offense he did not put the state to its burden of proof on this element and he did not argue to the fact finder that he reasonably believes the victim was capable of giving legal consent and this defeat says over a breath argument as to the facts as applied in his case moreover a way fails to cite to any california case that upholds a rape of an intoxicated person based upon mere negligence of the victim's inability to consent this is also fatal to his overbroad argument in disagreement will be with the government's characterization of the california cases the california cases that we cited show very clearly that negligence is the basis of a two part mens rea and the statute one general intent  engage in sexual intercourse to negligence with respect to the capacity of the victim are you going to address them what in particular i'm sorry are you going to address lin wood in particular restaurant ok when would dealt exactly with a challenge to this incorporation of a negligent standard and the defendant in that case had argued that the stand that the negligence standard was overbroad and thing and was unconstitutional linwood was exactly holding the standard saying that a reasonable  standard is well recognized within the law and that there is no due process concern with including as a criminal as a basis for a criminal conviction a standard that focuses on an objective standard of whether the defendant knew or should known that's the language that's used there's no heightened negligence standard and that's why domingo so sure this court's decision about criminally negligent homicide in texas is also important there's no indication and linwood that there is some form of heightened standard instead what the court is looking at is simply a standard that focuses on whether the defendant knew or reasonably should have known the two other cases that are cited g r deano and browse a lot both involve issues related to instructions that were given and in both cases the court looked to this construction of consent and incapacity and in those cases the court said that the important part the instruction to which the defendant was entitled was not an instruction about whether consent was present or not it was an instruction about whether there was capacity or not and whether the defendant knew or should have known that's why braz law and georgi you know go into great detail about the issue of what constitutes a defense in these types of cases and the defense is a reasonable belief objectively speaking in the capacity of the victim to give the consent so all three of the cases deal exactly with this issue of what's the appropriate mental state mens rea or mental standard to impose and whether that is what the defendant is being convicted of or not so for all three of those based off base on all three of those cases your honor we would argue it's clear that california law in this subsection does