i don't even try french both appearing for the petitioner and if you please the court i am in the un can be bill position of defending some rather repellent behavior however at the end of the day i do believe that this is not an aggravated felony and the district court erred in granting the motion to dismiss castro by as dealt with a different statute but contained a generic definition of what constitutes a eight paragraph decision that is violent not consensual sexual intercourse that's the generic definition i mean i'm sure that was a generic definition of rape in fifth century athens this statute has many other things that are simple you know the the generic definition of rape is there's many different sources right we have the model penal code which requires sexual intercourse to eighty six a i does not the federal definition of rape that uses the word rape nine twenty eight requires a defendant to be the administering agent of the intoxicating agent that allowed you know that obviated consent right that's not present in the california statute eight u s c twenty two forty one aggravated sexual abuse again obviously to eighty six i it doesn't quite fit right i mean under castro but has it absolutely fit it was an easy case but one where in using this statute it's different there are different elements under the california statute that are simply not pr in the federal that the definition in castro by as i did not require as you suggested it did that the person perpetrating the sexual crime have been the person to administer the intoxicating ag requires that the person be incapable of consent and so that's isn't that similar to what we have here i don't think so because if they didn't join the california statute that requires you know violence force and fear and sexual intercourse that's simply not crescent in the two eighty six i california statute so you know maybe we'll have the same result of a casual bias simply can't be dispositive there's more complications here in this in this statute than there is because again what do you know how do we look up the federal generic definition we have so many different sources so it's not altogether hundred percent clear in this statute under the castle by a statute of course no one could reasonably or principally argue you said that are you suggesting castro baez does not set forth the definition of rape that we should use here it does because it does or does and it sets forth a generic definition which doesn't fit the kind of just a minute is that the generic definition or is it not what i think it is a very perfunctory overview in my book in my view i don't see how i can read around castro by is to say that that's not the just that generic destination says applying the ordinary contemporary and common meaning of rape rape is and then says what it is so it seems to me there we've got the generic now all i've got t determine is does to eighty six i meet this right but again i think you have to look at the question by his definition if not of consensual sexual intercourse with a person whose ability to resist has been substantially impaired by drugs or other intox yes yeah that's the generic definition but that means they didn't just pull that out of thin air obviously there was no but it applies that's right that's the standard that we're a subsequent three judge panel so far so how is the statute here not this you know feeding that definition that i just  baez used was construing a statute that absolutely required you know violence force and but that's not the definition they gave of what i just read again i guess i don't believe they had to be using the various federal statues and they made it a very broad statement because they were dealing with a statute that absolutely had no ambiguity this one does in conjunction with all the various federal statutes i guess i'm once again going back to what my calling is after it seems to me that what i'm supposed to do is compare the california statute with the generic definition so i've got to find the generic definition someplace i went to castro by as versus reno and i found it it said ordinary contemporary and common meaning of rape now i can't go around that i'm a subsequent three judge panel and then it says what rape is which judge which judge graber is read to you now my only problem or my only say suggestion for this case is does two eighty six hi us step two are there any other words in that definition that require interpretation one of the words is non conceptual non consensual sexual intercourse what does that mean again we look now at generic definitions of that from what i can see that includes sodomy now step three now that we understand what the federal statute means we apply it to the specific california statute before us which is a different statute that castro but for methodology purposes that doesn't matter and that you'll the result that yes this california statute fits within the generic definition of rape as taught by castro by us and as we understand sexual intercourse to mean what's wrong with that methodology you know i hate to descend to these i mean  intercourse has a very specific legal and medical meaning and the start of the statute does not require that it could be you know these are distasteful things i mean you know a digital penetration however slight that's not intercourse i mean you know it's it's you know we're descending to some simi details but there is a difference and i mean there's i mean there's a reason the model penal code requires sexual intercourse right i mean so that has some significance that's not just you know verbiage without any meaning social intercourse is very different then penetration how will this is like come down then to whether the generic definition of sexual intercourse does or does not include sodomy and i think that's certainly part of it you know clearly and then i think the whole question of consent i mean individual involved in the proceeding had been convicted under subsection that deals with inability to consent by reason of intoxication also it was not convicted of anything more violent than and then they said they saw recorded approvingly those cases that's how you got these two ways that consent is obviated by the defendant being the administrating agent or age or disability so i mean i do think it's it's not just as simple was  well one thought would be since that wasn't part of the breach as we were banned to address that case i mean you know neither party had a chance to address kelly so if we went back to the board i could argue that we have to get into the whole concept of consent and is does a defendant have to be the administrating agent again you know we don't have the benefit of kelly at the time of the briefing and looks like i have four seconds we'll give you a minute for a vote on the time comes we asked a lot of questions forms intercourse into the same yes a matter of kelly helps explain that there has been a development in the law so that by the time there ever feel any statute came into play to to not be limited to male penetration of females it only included brother sexual conduct which includes which includes in open it's rationed without consent as to the that's the issue of concern one argument that plaintive has has race has been the issue of who and who provided the intoxicant however that is it does no matter who intoxication element neither statute seems to require that the perpetrator of the sexual crime have supplied the intoxicant that is that is occurring your honor actually d the california statute the case we see that there was a there was sexual conduct and there was and there was a lack of consent by the victim because he or she was intoxicated or in the brit and she was unable to such he the this record was correct in dismissing the complaint because he was not a person of good moral character eligible for naturalization and for this reason we asked the court to to dismiss the appeal alysa court has any other i like the first option that you propose but i don't get very briefly and i know it's maybe angels dancing i have a pain but i do think there is a reason california and also the federal statutes have distinction between sexual that is actually very important distinction between the california did the two sixty one rape statute in the one that we have here and the business of being the you know administering agent occurs in the two federal statute although i just thought it had some significan that the defendant was the ministering agent it's in the text so they had to have some idea that that's an important element otherwise it wouldn't be there if california wants to punish one act more severely than the other act that's fine but how do we explain the fact that such things as black's law dictionary defines sexual intercourse more broadly to include the broader definition i think if we descend to black's law dictionary that means somehow there is an other guidance from specific statutes and here we do arguments from both of you