council i know you're on one side a different war and you should have a fair chance to make your present taishan but of course you don't waive anything by failing t and you know perfectly well that we have some cases group with the same issue as so just make your own judgments based on and not waving anything that you don't talk about and the defendant in turn appeals the district course the national this motion to compel discovery in connection with the selective prosecution claim in my opening argument i intend to address only the government's appeal the sentencing issue and i wish there five minutes of my rich had a different church ation and what the district court said was that quote only forcible acts of sexual abuse of a minor qualify as crimes of violence and quote and that's at page one hundred of the record there are a number of problems with the district court interpretation and i intend to walk through those separately the first problem is that it's difficult to square the district court's interpretation with the language of the application  including sexual abuse of a minor the sense in commission with stating that sexual abuse of a minor is included within is a type of forcible sex offense in other words the word include is the opposite of the word  cludes it adds definition and expands the the meaning of the phrase that precedes it that meaning is also it's clear when you compare the use of the word includes made by the sense in commission within this within this very definition because the word includes appears more than once said the definition also states that crime of violence includes not only forcible sex offenses but a variety of other offenses such as burglary and arson and in that context it's clear that the word includes means that those listed offenses burglary arson are crimes of violence they are included within the category of crimes called offenses already includes forceful acts of sexual abuse against a minor the third problem with the district court's argument is what i would characterize as a slippery slope argument the free slope argument and that is that the district court's interpretation leads to what i would call absurd results it under the district court's reading of the application no most sexual abuse of a minor offenses including offenses against very young children would not qualify as crimes of violence because most states that she's do not require the government to prove as an element the use of physical force and i think the district court recognized this problem because that interpretation of what could be called the under twelve exception to the district court's reading of the application out is that it's on tethered to any language within the application no and other words the district court seems to be inventing and under twelve exception save or make reasonable and otherwise than reasonable interpretations of the guideline provision council is it correct that our circuit has not ruled on this issue other circuits have and all the other circuits that have have section two of the definition and each of those circuits decided in favor of the government on that particular issue just down illustration i guess and it's an expansion i assume is the way everybody has been holding in other words  correct what that what those other circuit cases what what they did was address the argument that in order to be a crime of violence the crime had to fit both section one and section through the definition of section one have a general definition saying crimes that have an element that involves include usually means you're referring to something that isn't compassed within the hole you've just been talking about and when the parent say sentencing commission has do you know say well here's a group and includes these other things that normally wouldn't follow that just strange use the word include either they normally want to fall within or there might be some issue about whether they fall used to talk about serious risk of harm now to right and in place of the serious risk of harm and they took out serious risk of harm but then they did something different than the correction or guideline which is they put in that parent's article including sexual abuse of a point hands meant and which ones would be considered less serious offenses so the regional interpretation here is that what the commission did is they looked at the the definition of aggravated felonies and saw all sexual abuse of minors there we need to decide whether or not that he put sixteen point bum one way or another in practice and there's a crowd charge and i never saw one that involved violence or serious risk of violence or anything close to violence should i just take it that crime of violence  now a term of art and it doesn't have to involve violence if it sticks abuse of a minor it doesn't matter that it's oh the fairly common case of somebody doing something one of them had the slightest thing to do with violence different going with well and i am a lot of parts of the country including the part where i live if the person's phone they're going to be armed in all likelihood it's real risky business and inherently violent because of the inherent harm that would be caused to the victim you mentioned example the person who sleeping are not aware of the act or this this court held united states versus riley that that kind of rape against an adult becoming sexually stimulated by doing that and that's a fairly typical sort of case fondling cases are the most common i suppose at least what i've seen i think with the sensing commission says and i think i frankly agree with most of them don't involve penetration a lot of the need to involve touching that i do but it's touching where whether it's criminal or not just purely depends on the psychological aspect like oh i've never had one of these but i've but my colleagues have a fair number of beating cases somebody beating the child is it a sex offense or not depends on what was in the head of the person giving the band right now that's right but  state court level about whether or not an actual threat of violence was made the victim said yes the defendant said no there course was no reason to resolve that dispute because the crime didn't require it as an as an element but again that that fact is is irrelevant because the only issue is whether or not his crime is sexual abuse of a minor because the sense of commission has told us that that is a crime of violence and answer just fine false question and the best i can do to ask your question service to say that under the career offender factors one is the idea that minors can't consent to the sexual act so it doesn't make sense to require the use of force in the context of sexual abuse of a minor because you don't need to show that the minor was not consenting and that the will was overcome they just don't it's not they're protected precisely because they're vulnerable in society and it's also involves a risk of violence because of the size of the age and the authority differences between the minor and the adult so what you have is an adult taking advantage of a helpless weak individual in society for their own sexual gratification and the courts that have applied for a fender guideline have more than that sexual abuse for minor offenses at least when it involves someone who's fourteen years old is in this case that i have the same approach i'm not sure i have the same answer to the approach is sexual abuse of a minor and if you answer yes then then the in the answer is it is a crime of violence under the skyline now the example you imagine a healthy debate about whether or not that kind of crime is considered sexual abuse it clearly is factual numbers of minor and there are quite a lot of states two teenagers breaking out in a car if it's an eighteen and a sixteen year old sexual abuse of i don't see the analogy being we can because what i'm focusing on is what's the right way to read what the commission was up to the problem is that you go the other way which is you start making distinctions between minors who are sixteen and minors who are fourteen or minors were fort court's decision this court's decision making process as does this crime constitute sexual abuse of a minor and that is for this court to the side that's the pure legal issue and i point out that this honor oh let me explain something when you saw that forty three and that went to forty four that was coming up for me after you suck your time and know that that's just what i explained at the beginning before the arguments began that you are responsible for your own time and persons who are younger twelve and younger those statutes also explicitly distinguish between conduct that involves the sexual act or even sexual contact and conduct that is abusive but does not necessarily involve touching does not involve knowledge of the person upon whom it is performed and the reason those statutes make such distinctions is because there is a difference between the conduct and furthermore that just those distinctions are reflected in the punishments that are prescribed for the particular acts and similarly the only question for this court is the extent of the punishment that mr brown's male has to receive should his guideline sentence of twelve to eighteen months be increased by a factor of three for being a three years and what that means is mr vallance walen by virtue of having been had his federal sentence enhanced by being convicted of that crime his federal sentence was enhanced by the statutory maximum of the underlying crime with which he was convicted the government proposes it should be increased by approximately six years which is double the statutory matter man had he been convicted of violating section two anyday we would be dealing with a different a different situation but he was convicted of something different come down a different way on that issue your art i think that's important there is only one star kit that has addressed what should i think believe is the most important question before this court and that's the fifth circuit i wish to clarify that the seventh eleventh and eight circuit is not simply defining examples of what falls under the first section it's an expansion of those i think that's what all the circuits have said that when they say includes murder that's the way the commission is using includes it's not much of a step to get to your point and say well let's say forcible sex the sex offenses including sexual abuse of a minor which means is actually i think one of the most important issues that i did want to address today i just wanted to make one distinction with the fifth circuit case because that is the only case that would directly contradict the ruling i'm asking this court to make and the circuit does not have the benefit i believe of the type of district court opinion that we had in this case we had multiple hearings before the district court we had supplemental pretty thing i believe that the district court considered issues that historically can continue and i also would like to point out that the fifth circuit misread the guidelines  referred to that guideline of support for its opinion but indicated that the guideline refer to any act against people sixteen or under regardless of whether force was used and that is of course exactly not true those guidelines make a distinction between twelve and sixteen year old and saying that the larger term crime of violence also includes those enumerated crimes i don't believe it should be interpreted to say that subsection may include subsection b and therefore includes need to encompass more than  strunk and white and i think it's just ambiguously written size so i don't think the grammar answers the question one way or the other but i did i did have think of a couple of examples where i did i believe support the defense's reading of how of how it could be interpreted with this respect if there was the phrase serious drug offenses and then the parent had a call including conspiracy or aiding and abetting in that case conspiracy or aiding and abetting would clearly refer to drug offenses and nonetheless they would have to be showing that it was serious and commission wanted to include sexual abuse of a minor within sex offenses is that i believe there is a very very strong argument that a person could make that a sex offense must require either sex or sexual contact and certainly with an often don't involve sex for one of the parties like those fading cases at the way they typically come about at least the ones i've seen in my town are a nasty divorce and the wife says the husband was beating the little girl with lascivious intent and he says died just a thing adam and the jury decide at the murder even even something like murder i can involve i  can imagine and non a murder where there's no intent to use violence so that you get a lot of them drunk driving murders and and it's easy to involve it to imagine a manslaughter that doesn't involve violence in the usual sense medical malpractise where it's really gross an extreme and the da decides to charge it a lot of these most especially the sex but a lot of these somebody touching a person's stomach or their foot there does not require there's no requirement that the contact me with the sexual part of the body or even there so i think that the distinction is important is that the person does not necessarily experience does not  experience violence and violence does not have to be used in the commission there are it's also important to look if it's a commission if we wanted to know for sure that the commission had meant to include as every instance of sexual abuse of a minor which includes cases which there is no sexual contact or act there are two different ways that the commission could have done it firstly it could have been listed as a separately enumerated offense in other words forcible sex sex offenses comma sexual abuse of a minor it also could have been arrested in the sixteen point increase as was child pornography if and if the court looks at the actual guideline itself as opposed to the commentary which we're describing there it was specifically enumerated so i think what we have is a situation which the commission could have unequivocally enumerated all cases involving sexual abuse of a minor as crimes of violence it had chosen to and it did not so so i think what is extremely important is that the government takes the to decrease the number of offenses trigger in sixteen models it specifically eliminated the very language and the clear offender guideline that was the basis for every single decision that the government has relied on that language was eliminated it put forcible defines forcible sex offenses and then created a parent that a call where it is at the best ambiguous as to whether that parent that a call means means to express that these are actual sex offenses or whether it means to say they're forcible i think what we're left with the district court decided the case on the merits rather than rejecting the government's position on the ground that if it not been urged when it was required to be since the district court did not decide the ca based on the violation of rules and reached the merits we have no choice but to reach the merits that was my analysis of that but if we can avoid reaching the merits and just affirm on the basis that issue because if there was a district court had been inclined to rule against the defense then perhaps it would have taken it up as it was it was ruling it was ruling consistently with the probation report consistent with the defense and so there i think i think this court can apply different i believe that this is an excellent case to do what i did want to mention jeremy do you know because the government mentions that and one thing i would say that's an important distinction is that involved younger children that i believe that the government seen a sense that it is time how offensive to say that a fourteen or fifteen year old can factually consent to sexual contact and that is somehow morally morally reprehensible to distinguish between teenagers and younger people what what is it extremely important is not only does the federal guidelines explicitly make that distinction not only do the federal guidelines explicitly described sexual consent by by persons over the age of twelve but every only into section two eighty eight there is not only a much lower statutory maximum for subsection c which deals with fourteen and fifteen year olds but also under the california coast a person can receive a suspended sentence for a violation of section two really whereas that is not available except under extraordinary circumstances for section truly a day and there are higher penalties so it is true that if mr vallance rayleigh had been twenty four as opposed to thirty he could not have been convicted under the statute but i think what's important is that the government is asking the