court allan eyes representing the sure henry let's be i'm going to make a brief introduction to the case in order to make it clear what this case is about for everybody who's listening my client entered a plea of guilty to the crime of sexual battery by restrain the question in this case is whether that crime presents a substantial risk of violence within the meaning of federal immigration and criminal law and in one sense it's a very simple case because there's only one issue presented if it is a crime of violence within the meaning of federal immigration in criminal law then my client is removable from the united states if it is not he is a permanent lawful resident and allowed to remain now the question is actually fairly difficult and it raises the issue of what we mean what the federal criminal code means eighteen u s c section sixteen b when it's defines a crime of violence as a crime that creates a substantial risk substantial risk that physical force will be used in the commission of a crime and it is our position that answer that question we need to examine two things first the nature of the crime the inherent nature of the crime and that nature is determined by california law ultimately this is a question of federal law but we have to examine the crime that was created by and that is in force by california law secondly we have to come up with some type of a definition of substantial risk and coming up with that definition we have to adhere to the rule of lenity because sex section six being the is a part of the federal criminal code it is applied in criminal context and the supreme court  as recently made it clear that any ambiguity is in that statute should be construed in favor of the accused or in the case of the court taste in the individual subject of the partition let me back up just per second we're talking about as you substantial risk of physical force or physical force what is physical force me and i'll tell you what i'm thinking i learned in first year law school probably you did also that battery involves touching i mean i can't commit a battery without touching somebody and we were told that even touching is enough force to constitute a battery so why is it a battery person a physical force that's an excellent by judge easterbrook addressed this exact issue the california battery statute requires the least touching it doesn't require any exertion of what in lay terms we would normally think of as physical force least touching can constitute a battery is the definition of force and where we find it well i think force i think we find the definition of force by in the same way we find the definition of substantial by  the crimes progress was thinking about when it passed the comprehensive crime control act and it was thinking about crimes like murder rape and the like so crimes in which violence is an inherent part of the crime so say violence so physical force but the circuits have made it clear that physical force means something more than just the exertion of touching well not just patting somebody on the back no that's correct line of the issue here involves the crying requires the least touching of an intimate body part of a person against their consent but i touching you're talking intimate parts yes during unlawful restraint touching against the will and for the purpose of sexual arousal sexual gratification or sexual abuse that's correct that's correct and each one of those four are not not a single one of those elements under california law requires any showing of physical force california cases people versus arnold people versus grant are abundantly clear on th instructed us not to do in the context of the criminal law is the exercise something we call common sense because common sense is what we just happen to believe to be true it's very clear that under the case long california this crime can be committed without any showing of force whatsoever whatsoever and the california courts have in fact found people guilty of this crime affirmed cases where their argument was but i didn't use any force and the courts have said well you're misunderstanding our statute you don't have to use force so i know that when i started working on this i have the exact thing response substantial use yes substantial risk of force but i think we have to start with the inherent nature of the california crime which is defined under california law is not a crime of violence i attempted rape it's not a lesser included offense a rape so under california law it is not a crime of violence does not require violence does not require force even the restraint restraint in the psychological and look at for example the fifth circuit in the design of the case it seems to decide the question differently than you were the intentional touching qualifies you look at the tenth circuit the second circuit of those cases have applied sixteen be in the context of sexual battery between adults those cases even involve other federal statutes that involve not the use of force for the risk of injury which is a different standard according to  in the context of sixteen and which also says that in this case specifically relied on the risk of injury line of cases in the supreme court will cause that you cannot rely on that line of cases in determining what physical force is under sixteen these so it's wrong for that reason and follow that is wrong because there's absolutely no reasoning in that opinion it simply says we think that sexual battery is a crime of violence within the meaning of sixteen  supreme court seemed to say was that like this statute is talking about active crimes and that is a crime that involves accidental or negligent conduct so isn't this intentional touching of a body part more like an active crime and then the drunk driving i agree with the second thing that your honor said but i don't agree with the imprints i think you'd like me to draw from that i don't think the supreme court was saying all active crimes are covered by sixteen v it was saying now an act of non intentional nonpolitical crimes are clearly not and so that it's not the case doesn't help us but i think the wind was help us is when the supreme court makes it clear that sixteen the is not an all inclusive category and i would like to emphasize i think the approach the government wants us to adopt and i know to go against common sense is inco committed and they must be the kind of crimes that lead to physical force but if we think about it you're working hard and it's just one more question you know what do we do with the language and leo collets as a burglar would be covered under sixteen v not because the offense can be committed a generally reckless way or because someone may be injured but because burglary by its nature involves a substantial risk that the burglar use force against the victim in completing the crime why can't you transport that analysis into this case and say touching the intimate parts of a person under restraint for the purpose of sexual arousal arousal involves a substantial risk that the toucher will use physical force against the victim i think you can do that but there are some problems with one sexual battery burglary are not the same crime so i think we really need to spend the study of sexual battery and say ok under what circumstances substantial risk means more likely than not this is going to happen there's go violence in our grief addresses that i don't think there's any empirical proof that that is true secondly the reason the supreme court used burglary is because that's the example given in the senate report of crimes that were just that and so the supreme good morning they please the court russell verbum a half of attorney general alberto gonzales this case truly does boil down to whether the particular offense from it it qualifies as that section sixteen the crime of violence we know that we have to have the sexual touching has to be very restrained has to be against the person's well we measure that standard in a categorical approach taken from taylor versus the united states and you look only at the elements of the offense and then the nature of the offense not looking at the fa and not looking at how the state categorizes the offense because once they can categorize this offense differently from another and a federal law like sixteen b has to be applied throughout the nation has i consistently so it doesn't matter how the state views the offense we simply look at the definitional elements and apply them to the standard so the question is whether this case involves a substantial risk of physical force being applied during the commission of the offense the touching must occur for the victim's private area unless the actual skin but substantial risk when you have to overcome someone's freedom overcomes someone's will or what have you you again are placing this into a substantial risk going to use force in the commission of the crime with the statute there's still more because you actually have to touch the person's private areas an area that has that is protected by people in a general sense and again creates an even greater substantial risk that there is going to be physical force used if you look at other circuits you can see that nonconsensual sexual battery cases are pretty much do fall in this section sixteen day there's a lot of cases probably the best example case i'm sorry is probably the best example even though it didn't involve restraint it did involve adults granted there isn't much of an explanation of why but again common sense does seem to come in here that when you're talking about a person's lack of consent and touching their private areas you present a substantial risk that there is going to be force used to commit the offense there are other arguments in mr li non consensual sexual touching offense yes there probably would be some sort of circuit split your honor to that extent but this this statute is is different and has the restraint elements to it which adds another layer of physical force i think it's even greater than the other cases out there and even if we were to disagree with you the justice department might decide to go to the supreme court means the supreme court to disagree with i would certainly recommend here on how that's all i can injury versus physical force which may actually be something different between i mean applying some sort of physical co hershon to get something done beyond maybe just simply the physical injury touching battery so i think that's why this case stayed in the sixteen  the victim begins to struggle to retain that particular restraint piece of distant they'll be subdued in some way there will be physical pressure or physical coercion applied to this person in some way shape or form during the commission  the one thing i noticed about the government's argument is that they never provided a definition of substantial still they have no idea what it is and when asked the judge struck me as well what would be the force the answer was well if somebody resisted there'd be a committed that there is no further violence that's why i was taken by the supreme court's statement that a burglary qualifies because you don't even have to have somebody in the house for a burglary but yet they say well we all know that some burglars beat up the house member of the household of the household member comes back or