fense of mistake of age is a part of the uniform definition age of consent was not an issue in that case because the court was dealing with a california statute that prohibits sex with a minor under is including that terminology but again the age of consent was not raised as an issue by the parties and i would suggest that that is not precedent when an issue is not raised in a prior cas california statute where it prohibits sex of a minor under sixteen parties had no reason to raise the issue of age of consent here we're dealing with an under eighteen statute therefore that raises there was that there was a legal error and that should be reviewed and novel because there's no prejudice to the government here if the case is sent back to the district court there will be a new sentencing on an open record however if the decides that it's plain early you know we meet that standard there was clearly error and it was clearly plain in this case because the court did not do the taylor analysis and compare the statute of conviction to the federal uniform definition of statutory rape it clearly affected the substantial rights of my client mr fred astaire he lad he was sentenced to sixteen months prison had he not received the sixteen level sentencing enhancement he would be faced you know guideline range of fifteen to twenty one months and this court in part b amend those cases said that a longer ntemporarily and commonly understood to mean you know lawful sexual intercourse with a minor under the age of consent specified by state statute and in this case you're talking about the california penal code twenty eight b court line taylor taylor case said that there must be consistency in the application the federal law and federal sentencing enhance your time out on a policy level i mean everybody that wants to have consistency but as you know there's all kinds of post booker fanfan cases where there is anything but consistency what we're trying to do is to apply the law construe the law as we understand it in our circuit has recently come down with gomez mandates and i'm asking you how you how you can distinguish this element of your case from government's mandates i'm not seeing it you help me with that although the court stated what black understood different ways of achieving uniformity under our federalism one is to have the same rule which would be a federal rule but that's not what sentencing guidelines the docket we could have said they were going to establish the state that the age of consent as a matter of federal policy and it will be fill in the blank but we could also have a uniform rule that says we will punish statute or a conviction for statutory rape will have the following effects statutory rape being defined however the states define it and that also would be a uniform rule that is if you're convicted of statutory rape so that once they would be free to abandon statutory rape entirely or make it the age of consent fourteen or twelve and it wouldn't affect the ability of california to punish something differently and we would still have a well it's not only taylor its ninth circuit mine us tweeting me that a kina where the quietest setting constraining a federal stacks you any definition of the terms must be uniform in the sense that the federally prescribe definition then why didn't congress provide for a uniform age of consent for for actions under federal law having consequences i don't know the answer to that i think there's another problem that has really been addressed but and that catchall definition of crime of violence but whether in the ordinary cases it presents a potential risk of injury to another so they could sort of back tracked or at least redefine to a certain degree how you look in thirty two states kind that is legal yet somebody has the conviction out of one hour for states making it illegal and they're getting a sixteen mumble enhancement would significantly increases the contemporary definition of what statutory rape it is it's a it's a definition shared by all fifty states all fifty states have the same definition and  it as under the age of eighteen an additional five at least that defined it under the age of seventeen and if you look at the u s census reports that's over forty percent of the population that you'd be excluding from the common ordinary definition and that's just based on then it qualifies under the federal definition so it's not putting out that every single state has to have the exact age of consent but they all do have to have some things in common according to this definition there are some limits they have to be a minor and ask to be based on the age of the that may not be that's that's exactly what i mean we don't have the sort of uniformity that's exactly right and it's also not just based on the state statute but it could be based on a case by the state so it does vary greatly among the states i mean just like the difference between but  any evidence that the district court actually considered the thirty five fifty three elements just mentioned thirty five fifty three he did not explicitly mention thirty five fifty three but that's not required by next he did however inferentially discuss the thirty five fifty three a factors is there any is there any of that you could you could do without mentioning thirty five fifty three in so many words you go down someone going to consider one two three four five and and so on and a property to one in order we would know implicitly that if you've done that we have to cut and paste here to quote it kind of make this work well  so under that circumstance then you come into sentencing nobody mentions in particular thirty five fifty three by name someone is sentenced it's your view then the defense has to stand up and specifically object to the even black blood dictionary says that the common age of consent is sixteen clearly age of consent is an element of this offense it's like that with a crime and there needs to be uniform only on the part there needs to be uniformity in the judge stated i think the guideline range of significant and i agree with the recommendation of probation after that sixteen months is appropriate there was no record made or not you are still on the record that the court  discretion under booker to to impose the below guidelines sentence there was no mention of thirty five fifty three eight even if the court didn't say thirty five fifty three eight didn't talk about those factors at all and so