nature of the content is not now with the exception of what you can read into the statute in order to be convicted under that statute he would have either had to touch her breasts or her trying to tell you involved a statute that required proof of much more intrusive conk conduct that is from actual sexual intercourse and it's also required to prove that the victim was released one year younger and  force in and of itself takes that outside of the guy and i think what takes it outside of the guideline here is that when you look at the statute in the wood out the categorical approach what we're talking about is simply a mere touch either through or under the clothing it doesn't matter a victim that only has to be under the age of sixteen and the samurai case it required actual sex sexual intercourse with it with a victim that was under the age of fifteen women i think you know when you look at the cases and they they analyze this term they tend to break the actual term up into its individual words and they talk about what the t rape and when we're talking about in this case we could have an eighteen year old senior or example who has a fifteen year old girlfriend and perhaps he's one day over three years older than what she is case for one thing the statute involved again a victim that had to be at least one year younger younger and fourteen which would be two years younger than what we're dealing with here so  victim be under the age of fourteen here we're talking about a victim the under the age of sixteen i guess i would also focus i was really reading there maybe you know when i was sitting in the back and i don't know if the court purposely used it or not but the that that language environment then i think is very well victor expression given some of the language it's the language used by this court and following cases particularly i think it may have been the melbourne case where the court said that we ha under the age of six i don't i don't believe so because i don't for one thing his age isn't included in any of that any of the documents the charging documents the indictments any of the documents from the state court  other thing is that i don't believe that you can categorize the ages as energy efficiency no simple fact that's something that i think certainly it was in the court below a prosecutor would have to prove beyond a reasonable doubt and it couldn't be judicially noticed so for those reasons i don't think that using the modified categorical approach it wasn't in the charging document when the victim's age was in the charging document the age of the perpetrator was not in the charge not ok and it wasn't  simply the charging document to establish facts necessary to bring a crime within the generic crime of under categorical so i think i have thirty seconds left  reaches conduct i think goes beyond what is considered under the collar and every day meaning sexual abuse of a minor but your you know your colleagues argument what if you go out with a boy three years older but let's let's just say that occurred is there is then an abuse of service that we really wouldn't be an abuse maybe it wouldn't be so great wouldn't be that maybe that would make it easier but right now do we just have the statute and that's it yes are we under the categorical approach i think we only look at the statute and look at the statute and determine whether the entire some cases what a defendant may have admitted to in court and things but we don't have anything like that here that's part of the record we do know you are there is some mention in that presents report of of age and relationship at the end of the opinion and essentially the court concludes that under the common everyday understanding of the term sexual and in the common everyday understanding of the term minor that statute qualif acts and concluded that under the common everyday interpretation of those two terms this actually constituted sexual abuse of a minor and we're the same situation here of the south dakota statute legislature has determined that that this type of conduct should be prohibited should be made illegal and again i would analogize it to the abuse of sexual crime does not necessarily lead to the conclusion that the crime constitutes a crime of violence or a child sex abuse type crime and what time the court needs to stay away from this the very warning contained in taylor if it were not these issues aren't decided by the vagaries of state law or by jurisdictional sort of law and that's why we have the categorical approach to beacon so the fact that south dakota may have determined that this should be a crime should by no means lead to conclusion that this