good morning and may it please the court hanifa corey of the federal public defender's office on behalf of appellant and defendant davey hudson and i would like to reserve two minutes for rebuttal the statutory language at issue in this case and title eighteen us code and fifty two e two has been called by the supreme court in artful hardly intuitive odd and inelegant to judges of this court have written that the competing definitions of the term sexual abuse of a minor are awkward and create a needlessly confusing rule of law that has no compelling or principled rationale and this court has adopted two different ways to interpret one legal phrase the phrase relating to the supreme court as explained that the failure of persistent efforts to establish a standard can provide evidence of unconstitutional vagueness and that is precisely what happens in this case and precisely the problem with section two thousand two hundred and fifty two dollars b two as we've laid out in our brief your honor we believe the statutes unconstitutionally vague and the only way to avoid declaring the statute and constitutionally bade vague under principles of constitutional void and would be to interpret the phrase quote relating to the laws of any state relating to well we raise that in our opening brief as one of the examples of the constitutional vagueness issue specifically the idea that the law has to give ordinary people fair notice of why well i know but as i read your brief i mean i looked all over in your briefing and your client was somehow not on notice that his conduct fell within the scope of two thousand two hundred and fifty two b two at the time your client committed  conduct would fall within this go so if that's true if that's true then if i look at you as the sabo i don't know how you win this case because you can't come in and argue that this statute is not good for what's going to look in the future you've got to say as it applies to your conduct and the conduct of you and at the time that this crime was committed there's no between the ability to raise a facial vagueness challenge and an as applied vagueness challenge and i would start by saying to be clear mr hudson is raising a facial challenge and also to be clear  and we filed a response to the government's twenty eight dollars j on this point that was filed a week or two weeks ago mr hudson absolutely can raise a facial challenge and the courts have noted that in the supreme court itself as well as th noted that when dealing with a the categorical analysis a defendant can raise a facial challenge to the statute so the issue as i see it how do i deal with this language in zabul let me read it to you a co considers whether a statute is vague now we're talking vague here as applied to a particular state of facts at issue or one who engages in some conduct that is clearly perscribe cannot complain of the vagueness of the law as applied to the conduct of others that's what zavos says and what we have in front of us the only way for me to help you is to ignore farmer and adopt an approach which is presently rejected by some areas and your criticisms are instead general criticisms which would be a pluggable but others so i'm just asking y how do i get there well i think the court gets there by recognizing that the supreme court's decisions in johnson the maya and davis which dealt with have anything to do with these well your honor i would say that they they do in the sense that those were cases involving defendants whose conduct was clearly covered by the relevant statute whose the supreme court nonetheless decided to take a look at a facial challenge  to a statute that prescribed statutory mandatory minimum penalties for recidivist and nonetheless found that if a facial challenge was permissible and ultimately throughout the the challenge statute and this farmer farmer absolutely apply it at the time mr hudson committed the offense and it absolutely applied at the time he was sentenced and we've never disagreed with that and conceded the point before the court but we pointed out that what farmer never did and what this court has actually never done at all is look at whether the statute is and constitutionally vague and if the statute isn't constitutionally vague then farmer is effectively irrelevant because then would be a constitutional problem and just as the supreme court's decisions and johnson and de maya and davis threw out all sorts of case law from all of the circuit courts that previously would have applied it would be the same outcome in this case in other words  brings us to a new day where these sorts of challenges can be considered in a dress and if the court kind of looks at it in that framework then we feel that it's clear the statutes vague because it provides to give it fails to provide ordinary notice to people and as the concurring opinions and farmer noticed it leads to arbitrary law enforcement because there's no clear standards that govern when the mandatory minimum applies and when it doesn't apply and that's exactly the same exact problem with the residual clauses addressed by the supreme court and johnson to maya and davis the absence of a clear standard that helps courts decide when to apply a ten year mandatory minimum provision and when not to apply it and you know the the problem is particularly compound it by the way the court has interpreted the varying terms at issue here so there is multiple definitions of sexual abuse of a minor there's multiple definitions of the phrase relating to and when that to work together particularly only when they're supposed to work as a substitute for the much stricter categorical approach that's where the vagueness challenge comes i want to save the remainder of my time for rebuttal unless the court has other questions wants  thank you thank you counsel morning ma'am please the court matthew levitt for the united states is court you to firm for two reasons st farmer controls this case is directly on point this court and it should be rejected on the merits both because this defendant cannot establish that it was vague in his case but also because this statute doesn't have the conspiring features rendered the residual cla unconstitutionally vague and johnson in particular going straight to the merits of that the supreme court focused extensively on the fact that the residual clause required courts to engage in an imaginary neither of those two conspiring features it involves merely a comparison of the predicate offenses elements and looking at the elements of the federal generic offense and if the two are related  the court pointed out that it's either of the two conspiring features had occurred in isolation the residual cause would have been constitutional and so the fact that this that you doesn't require either of the two things that the johnson or found dispositive as that that you showed that this vegas challenge fails on the merits in addition to it not having any textual similarity to the residual clause and being completely bereft of decisional support i mean the cites not a single case holding this that said unconstitutional and doesn't point to cases where courts have struggled to implement the statute that sentencing which is a sharp contrast to the johnson case where the supreme court pointed out the pervasive disagreement in the lower or that show the hopeless indeterminacy in the courts or of implementing the residual law and so for those reasons his claim failed on the merits and as the district court correctly did this court should reject it as well if there are not questions on the vagueness challenge i would just turn to a final point before using my time which is you know at the end of the day the defendant is trying to revisit a kids from dangerous repeat sex offenders and excludes from its coverage convictions involving the most vulnerable victims children under the age of twelve it would render mr hudson who stands convicted of fondling an eleven year old's genitals over a five month period a person a child he was trusted to coach a st time sex offender as he stands here and that's it defies common sense it is not a law that congress wrote or intended law start with the last point about the absurd result the government itself concedes that this court has to address the constitutional issue regardless of farmer so that speaks to judge smith's questions about whether farmer controls and the government itself admits it does not but but to the absurd result part there's a clear fix to the problem which is congress could rewrite the statute to make it cover what the government wants it to cover the congress could rewrite the statute  anyone who is a registered sex offender who commits a federal sex offense should receive a ten year mandatory minimum sentence and then i wouldn't be here arguing that the statutes vague but instead what the problem is in this case is that you have two compet definitions of one set of statutory terms and i would again disagree with the government's characterization that there is not pursue pervasive disagreement about these terms there's actually a lot of pervasive disagreement in terms of the sexual abuse of a minor framework  our brief mention farmer the concurring judges and former itself noted that the law was confusing we cited in our briefs other judges from within the circuit and in the district courts who found this confusing as to relating to there's a circuit split on how to interpret that phrase and so i disagree that there's not hasn't been the same problems that were present with the residual clause those problems exist and when those two problems meaning the competing definitions of sexual abuse of a minor and relating to are combined together it creates this vagueness problem that should be remedied by it well in our view it makes a statute unconstitutional and should be remedied by either by adopting  alternative interpretation or directing congress which end of the court can't essentially direct congress to do anything but congress can fix the problem by writing a clear non vague statute and my time is up thank you our thank you counsel the case