may please the court this morning i'd like to focus on argument number one if there are any questions regarding argument number two would be glad to answer those but but the issue here is whether mr arms  dollars or a conviction under state law relating to the abuse of sexual conduct or contact with a minor there's no dispute mr stubbs was not convicted of a federal offense in mr of arms convicted of those crimes but it is relevant in so far as it provides a generic definition of sexual abuse of a minor that th circuit case we cited in there are you saying if he was twenty five and had that one airport with an eleven year old that would not be sexual abuse of a minor it would be factual yury with that right yes why wouldn't it be abuse we understand it while i think the problem is you have to look at the kentucky statute as well you have the generic definition that says your gauge in a sexual act with someone who is who is not attained the age of the victim is at least four years younger than the perpetrator doing fifteen i mean i don't understand why well that the sexual abuse well it could it could be but but that's that's the whole problem here is the generic i kentucky's rape three does not meet the gion the definition the generic definition in our contention is that it's the does not what is abuse mean but it could be it certainly could mean some kind of physical than i think of variety of abuse as they could be psychological abuse emotional abuse certainly physical abuse or or even sexual abuse but but i  think i think you know what the it with the district court has done is when you look at the yellow you have to compare the elements of the generic definition with the elements of the state offense and those elements are very different are several ways and at the time mr arms was convicted there were several ways that someone could be found guilty of rd degree rape but all of them involved lack of can set correct of a position of trust but right but but that's not that's not what the kentucky statute says that it does it says having sex with a foster child that's right someone who's under the foster child could be seventeen could be sixteen or seven over sixteen or seventeen years old that would take it out of the generic definition of sexual abuse yeah i mean i guess that's the question i had it does this trust relationship trump the consent law that you have than some states maybe kentucky that where sixteen or seventeen year old can consent  that are now in the present kentucky a rd degree rape statute so that's why i go back to the point where you look at the two york definition you look at the the kentucky definition you compare those elements and the categorical approach doesn't work gender definition to go back to make another point that you were talking about judge the par yes there's a lack of consent but one of the one of the elements is that the individual again at the t was convicted the phrase was mentally retarded person couldn't convict because they were mentally retarded they may be over the age of sixteen there is no age limit on either the victim or the perpetrator in nonspecific objection but defense counsel did say in the sensing memo and in sentencing we don't concede that the prior conviction follow up yes sir but they conceded paragraph eighty four the facts provided in paragraph eighty four they didn't dispute them they didn't ok they didn't dispute them which means they didn't object which means they wait correct if you don't dispute a fact in a pre sentence report you waive the objection to so if that the case then in paragraph eighty four dollars says that the indictment said what happened in this case which is you have an older person abusing right we're talking about modified in the categorical approach the you can't look at facts to decide upwards of what elements they were convicted of that's what wins that's different than in this case correct because they're not so let me give you a hypo if it said he was convicted in the beginning of paragraph eighty four rd degree or a dash and it had the statutory subsection and he didn't object would that be enough no i don't think i don't think so i don't think that's part of the facts rule so in every case even if people don't object we're going to require district judges to ignore rule thirty two and go get documents from the state courts to prove it up even though defendants not object well in this case you're on the you know certainly the burden is on the on the government to provide the sheppard documents and not if you don't why is the burden it says the supreme court said other available documents this tells you what the indictment said it doesn't tell you the facts of what happened we're not using the facts as they were and when to figure you have to show it's plain error to rely on it and my point is why is when controlling if when was trying to figure out the facts underlying that conviction underlying the conviction to figure out the elements where this isn't doing any of that this is just saying this is what the indictment says which every p s r in america says well well i think i think there's a couple there's another couple reasons here you're on the look at look at the gardner case they had  indictment they started off with the indictment and judicial order the indictment charge i believe it was the serious conduct with a child with a child the judge what was effectively the judgment said the defender was charged with aggravated battery and was convicted of simple battery so then then they brought to the p s r with said well he was charged with aggravated battery but was convicted of serious conduct and district judge says i don't know what he was convicted of what he was charged with and he said that that's one reason why the indictment was unreliable and that's that's the price but here we have he was indicted for this it's the th fleet right what he was indicted for that bennett according to the indictment the defendant  link intercourse with a whip victim that was a less than sixteen years old it had the date of birth while the defendant was over twenty one years old and then it doesn't indicate all these other things that happened in that case it says he pled guilty to both counts and he didn't contest any of this so now you're saying district courts independently when there's no objections not that they're not busy and not just reports now have to hunt down these documents when no one's objecting to or find them and use them even though the supreme court has said to the contrary you can use all other available documents to indicate with him i saw had you see him out of time have may i respond st of all to judges to go i can't i can't do that but if if if there are no other questions you know you'll have your  the court i'm to gilbert representing the united states is the court's been discussing mr arms counsel did not develop this argument at all before the district court in fact actively avoided  it did utter the words i'm reserving this and reserving the right to appeal this but this is not been developed before the district court he's asking this course this court to develop it in the st instance this is all about production of child pornography and eighteen u s c two thousand two hundred and fifty two a for distribution and possession of child pornography now the p s r we've been talking about that a little bit did as judge the park pointed out state that this rd degree rape conviction in kentucky this prior conviction dealt with mr arms sexual intercourse when he was over the age of twenty one dollars with a person under the age of sixteen that's a factual assertion in the p s r to which mr arms did not object and so he is taken to have wasn't when preclude using that words factual grounding no your honor not in the absence even then the absence of an objection no your honor all right why not if it is a factual assertion in the p s r and it wasn't objected to just like the fact that he was convicted but that's the same as when same thing well it seems as a matter of equity it's not correct that he could bring on appeal an argument about is courts can rely on it for the existence of it but not per the underlying facts to support it all right there was a crime that's it i see you're on what would be your answer to my question about this subsection had the subsection could a district court rely on it and nothing else i would say so your honor that's specific enough to point out what it was like some states you put rape all in ones you had st nd and rd degree rape all in one sexual abuse sexual abuse or abuse of sexual conduct involving a minor then the enhancement of the assent of the sentence applies now so the relating to is the fifty two talk not only about the views of sexual conduct involving a minor but about sexual abuse generally and kentucky case law has said that sexual abuse is necessarily a part of rape like rd degree rape pled guilty sometimes it says rd degree rape and underneath that have a parent that equal the statutory section and subsection which is why i keep asking this question if the courts rely on that every day are you aware of any case that is dad you can't rely on even that like i don't understand why can we rely on rd degree rape if we can't rely on the description of the and i well from a common sense point of view your honor i think that's the p s r says rd degree rape in the beneath that it says why it seems to me to be counterintuitive that the district court should not be able to allow in the reason why the rd degree rape was played guilty to and you're not aware of any case that i'm not aware of any you're on or no in this case it's a little bit difficult to understand exactly what the defendant was arguing here since this wasn't developed this argument was not developed before the district court but of course there's case law we cited in our brief stating that when a p s r is not objected to then the defendant is deemed to accept those factual assertions contained in the p s r and the district court may properly consider those as findings of fact you know the briefs seem to really focus on the modified categorical approach and not on category approach because that is not a fair statement well i think that that's what mr arms is is focusing on on appeal of course that was not developed below and mr arms talks about how the united states failed to produce any shepherd documents which as i understand it would be what the united states would would produce if we were engaging in a modified categorical approach here but again mr arms didn't object to anything  r and didn't say anywhere in his sentencing memorandum or anywhere else that the united states needed to produce any separate documents if he had done that then you know presumably the united states would have produced certain documents that would have shed more light on it but we didn't even get to the categorical or the modified categorical approach before the district court anything further no your honor any further questions and i thank you ok thank you very much and of course your honor we would request that this court from the judgment thank you  just a couple of brief points your honor st of all i mean judge cook is correct in the wind case the court specifically knowledge that the the defendant did not object to the piece of the factual assertions or the recitation of facts in the r and that's really that's really i think the sticking point here where we're taking those facts as being absolutely true i agree with you that you can't rely upon the fact to figure out what elements in other words you can't back and use facts to figure out the categorical but we're not i mean this rule thirty two so it's undisputed if you don't get i mean it's crystal clear you and i both know that so what we're asking district courts to do why can we accept that it's the degree right i mean let me ask if that question why can we accept that well well the well i guess for one thing the only time that that that i can recall that the actual that it came up in in the pleadings in defense counsel sentencing memo and i think it's right you mentioned it was a footnote number one of the sentencing memo you're on he mentioned rd degree rape but i know it says that the p s r o i'm sorry that that it says rape rd degree why for that matter well well i mean certainly the because i think i think the court has it has a duty here when if you're applying a sense and has been such a a radical sense and has been to look and make sure that those those prior convictions are in fact the predicate offenses the can be used to say let's give them that duty where it's uneffected to like i understand if it's objected to all then of course the district court and the prosecution have to do the work i have never i mean i was a district judge for ten years i don't remember where everyone says judge we're not objecting to this where i think no matter what prolong the sentencing hearing by five hours by making the prosecution prove up everything in the pre sentence  and i understand that judge and and you're right this is the what you i mean i understand why you're asking it's a good argument when is a good case to use but it seems to me we're creating a lot of work for busy district courts here in every want to be cases when no one's objecting they just report still going to have to go get the docs which as you and i both know can be an arduous process dealing with state court writers sure i mean it may be a situation where the indictment it exists but that might be the only shepherd document that exists and end with i guess the other point i was trying to make is that the indictment standing alone is really meaningless as a shepherd document because again for going back to that gard problematic but if you don't object to what if he had only the indictment would you say that the insufficient yes oh yes i would even though you didn't object yes what if he had to be indictment in the plea agreement but not the plea it would depend what the agreement said what if you just pleading guilty that's not enough that's not enough to establish a factual basis you know and presumably the in order for the plea to be constitutionally valid they'd have to state a factual basis which m time back into the united have to get all should you have a case for that because it does no supreme court cases that now they have to get all the documents they just need to to establish the underlying facts they don't need to get every document but they need a sufficient number of documents to establish the factual basis or the i think it's plain they are not to judge i see my time's up thank you yeah ok thank you counsel both of you again for your arguments this morning we really do appreciate them the case will be submitted and that completes our calendar for