constrained by the law to reach what i think everyone agreed is a deeply unhappy result but i believe the analysis is more complicated and i would like to address the arguments i made in the  code two sixty one point five c is found in eighteen u s c twenty two forty three under that statute the victim must be between the ages of twelve and sixteen and the defendant must be four years older in california the victim merely needs to be under eighteen and so therefore clearly the conduct criminalized under the california code is considerably broader than the conduct that is criminalized under the federal go at that point and modify category  houses comes into play indeed in the two unpublished cases cited by the government which both dealt with this exact california statute the government of the court employed the modified cattle approach they look at the complaint and found that the victim in both of those cases were between the ages of twelve and sixteen consequently they found that the government met their burden that's not the case here the complaint is found on page fifty six of the record and it does not reference the age of the victim it simply recites the stack you under that analysis clearly the victim could be three hundred sixty four days seven years and three hundred sixty four days old defense and merely has to be three years younger than the defendant the government doesn't have sufficient competent conviction documents to prove that this crime would be sexual abuse of a minor under the federal definition it's a very different statute yes so i you know my argument will be focusing on the modified categorical like this there's a number of continues as requested by the government my initial argument was that a misdemeanor cannot be an a felony precision of our english language prevent that but clearly has been subsequent case law that's not that out of the water so i obviously more or less withdraw that argument and i would focus on the modified categorical now there's one other point i would like to make and i recognize that i did make it in the brief but one will search the record in vain for any the complaint that i referenced was in a brief that i wrote to the court the the issue in this case is whether unlawful sexual intercourse with a minor more than three years younger than the per perpetrator is sexual abuse of a minor if so the court is without your distinction over this petition for review this court is held that broadly encompasses the use of young children for the gratification of sexual desires could the california statute reach consensual sex between a twenty year old and the seventeen year old results in this case isn't it seems to be a pretty harsh result your honor but this court has held crime was reduced to a misdemeanor your honor this court has held that you don't you don't look at the fact that it was reduced to a misdemeanor he did plead to a felony but the but the court has held that  document setting forth it's his plea agreement a computer printout document setting forth his pleading to any of the documents of record indicate the age of the people involved none of the conviction documents  set forth the age of the good of the participants that his passport is in the record and her naturalization document is in the record so we have in this record we have her age and that's when i made my calculations on that is not in the conviction documents mr rivera have any other criminal history i do not know that from from nothing on the record there's nothing   exchange meeting here at the courthouse on march twenty second with a member of the all of the active judges of the ninth circuit because of the increasing caseload of immigration  we would be happy to consent to mediation in those cases where you the court may feel that although the result may be technically proper the result is that so harsh is this one of those cases your honor i did i don't see how this is this is one of those cases that that the court can or should see in the mediation because what we're doing here is determine what the court is doing here is determining whether this is an aggravated felony if this is an aggravated felony which is which the law says it is this court is without jurisdiction what we are doing here though is only determining whether the court has jurisdiction whether  order of removal is proper whether the rather the government actually affection waits a removal is not before the court whether the petition is actually picked up and removed is not for me or before this court that the petitioner can ask the government to take other steps but what's before this court is the question of law whether this is an aggravated felony well we have to look at the fact counsel that the proper documents were not before the i j in meantime or perhaps of intially going to be leaving now two children fatherless a mother on welfare it's a wonderful wonderful thing there are you are asking us to do i'm definition should prevail if that's the case then modified categorical approach is proper and the government simply doesn't have the conviction documents the conviction documents that were not submitted i submitted them as an exhibit this matter can be adjudicated without turning to the incredible equity involved the law is on our side and so is morality thank you ok ok just argued will be submitted for a decision will proceed to the next case on the calendar which is