all those cases set out the basic idea that the special star assault part of the statute is all kind of elements and that's the core conduct predicted by the statute and as long as the jersey greet that at least one of the aggravating circumstances are present in the defendant is guilty of aggravated sexual assault the government is trying to distinguish i think my strongest cases establishing that nd part of the statute used to this is why claiming that those cases just tell of a part or a subset of the aggravating circumstances but i suggest when you look at those cases nothing about the reasoning of those cases is going to be particular aggravating circumstance that issue in those cases all tho cases more or less in the same thing which is what i just said the st part of statute the court conduct the nd part is just the aggravating factor that increases the severity of the offense so the government is really i think weft with a series of quotations from cases where a texas court is used to label element in reference to a particular aggravating circumstance but that is not the matter space inquiry this court is supposed to do finding when the texas state cases use the elements described part of the statute instead of the substance of tests that app's about jury anonymity and so i think what the court does that analysis this becomes a pretty easy case because all the so it's absolute crap there's no case that talks about business very particular aggravating circumstance but i think there's other cases topped with the other ones and i don't know that even makes sense to say so aggravating circumstances are all turned on  in exact identical conclusion you can also use the court conduct test which i think is a little more intuitive and that's the courts it used for the texas i read a sexual assault statute and valid i think is pretty easy as well it is the basic idea good morning your honor is mark rahe for the united states essential question good morning in math this map this says it one hundred times we need to know what are elements as opposed to what are relevant facts here for over thirty years texas state courts have held that where the only aggravating circumstance charged is the age under fourteen that it's an element of the offense and i my point makes a good point that this is not just supposed to be about labels but let me assure you our analysis is is not just about labels i know i cited a lot of cases again for over thirty years where texas state courts have said this is an element of just point three in particular read versus state o in daniel each of those state cases dealt with the question a challenge to deceive fish and see if the evidence jury instruction air and what's the lesser included offense of aggravated assault and i would submit to this court that in order to answer one of those let alone all three a court needs to know exactly what the elements are is some things that are relevant fact it doesn't need to be charged an indictment is something's an irrelevant fact it's not the metric against which a sufficien challenge is based so the government would submit that the cases that we have a dues this is not just and it's that act on the face and now says this is actually talking about what's an element at page fifteen of his reply brief my opponent concedes that on this case where the only aggravating circumstance charge was victim under age that we know that it had to be found beyond a reasonable doubt and that there had to be juror unanimity so when one looks again to mathis justice kagan said you know what are some of the policy reasons we have this rule and two of them i want to point out of particular when she said well imagine a conviction from ten odd years ago like this where something is just a means of manner it's something that the defendant doesn't have any incentive to dispute we know as a matter of state law that in this case when this defendant incurred this conviction he knew from thirty years of texas state law this is an element so by pleading guilty he admitted that he had every incentive to want to dispute that and another policy reason the math is said is the judge is constrained to th amendment concerns if they make findings at  sentences that are and those facts weren't found by a jury or committed by the defendant again here as a matter of state texas state law we know that this was an element that had to be proved beyond a reasonable doubt now combination of things used in a particular case are elements i e they have to be proven beyond a reasonable doubt it admitted by a defendant or or a you know found by a jury beyond a reasonable doubt that they they can then count and you know matt this also makes the point clear that states give us different ways to determine what's an element and what's you know a relevant fact sometimes it's a jury instruction sometimes it's a state case here we know i  cites a case called jacobs there's another one called geico versus state where when the state or texas when a prosecutor chooses one of a list of options that then becomes an element that has to be proven and also to your question judge wardlaw you know marino i think that's one of the chief authorities upon which my point relies that is under the current subsection f of the statute which is called super aggravated assault and i think one mandatory minimum penalty if the victim is under fourteen and the offense was committed by any of the means specified in that sub one well that's just that sub one and even in that case moreno we know that the jury still had to be unanimous s to victim under age that intermediate state court said you know what they don't have to be unanimous as to the six ways to commit the crime violently under the st subsection but they do would all have to find that the victim fourteen so you know again this is it's somewhat an unusual situation but matt this says we look to state law texas is just they're unique that way you know if thirty years again these courts just saying in passing oh we think this might be an element no they saying it's an element there repeatedly saying it in the context of challenges where that matters sufficiency jury instructions and one other point i want to bring up judge warlock as you know you open your remarks by saying it's a close case i know my opponent in his brief he thinks that you know he's making the position that if there's any uncertainty or if it's close that the tie should basically go to the runner his client should win we would dispute that for the following reason he cites matters for that math this is a criminal sentence in hanssen case it's a active case there is no doubt it's a black letter law that the government always has the burden of proving and enhancing fact aggravating fact at sentencing so therefore if there's any question it's held against the government in that context this is a collateral attack even though we're here in a criminal case this is a civil immigration issue under eight u s c one thousand three hundred and twenty six d that statute in no uncertain terms puts the burden of proof on the defendant and there's a good reason why because you know he incurred this removal in tw thirteen he then makes a couple of attempts at self help after descant aftermath this he could have remained in his home country made a motion to reopen but no he went for cell felt we're here where we are but that's why this court in cases like united states versus the dominoes and says we don't look at deportations on collateral review the same way we do want to wreck review so that's a point i feel should be very deadly want to make sure that the panel has that from the government because  under fourteen years of age so you know we would submit that the judgment is proof of that and also i would point out the judgments on excerpt a record thirty seven dollars somewhere towards the bottom it says sex offender registration requirements apply to defend has the age of the victim is twelve years that's only something that would happen if this that if it was the be aggravating factor victim under age and so we say that's actually more proof that that is the right subsection also label those elements and how does a particular cases i was really happy in those cases just because only one alternative factual means was charged is on nobody's radar when they're actually constitute alternative elements or what they're actually than what was charged and that's what happens requires so i don't think any of those cases that are are consistent with the idea that be aggravating circumstance that issue is an alternative i don't know you actually do the jury and