response to that is congress delegated to the president the power to punish he did delegate to the president or do i think they carried out the power to define the definition of the c the punishment for the particular circumstances under which the crime was committed is in the manual for a court martial are the elements of computer developments created by the president now if i lose those punishment is subsequent factor and yes i suppose you could say come on since you have to prove it beyond a reasonable doubt why don't we just go with that and the reason is because you're opening up a hornet's nest guy did you know what he was convicted of and specifically here consider what would happen if for instance the states in some commissions you know provide definitions of  cases to try to explain our position isn't isn't the government's position that the military justice system is exceptional and so it's just different from everything else and so we have a different set of rules i so agree and in fact i subscribe to the vaguest idea of what terry was what happens in the military i think should study of the military there has never been an opportunity or there's never been an occasion which i've read where congress has career if they're captured we don't say ok mexico you negotiate with the enemy to to get them back and yet this one cardinal sort of issue has never really been addressed because we're not supposed to read and begin to use of the statute in favor of deportation whether one have constructive statutes which is essentially what is being argued for here so i would suggest that yes it is different but that very differen the way the way so i think the elements of the offense are in the statute and that's where the supreme court has told us to rock at and can you briefly address the question of whether there are two crimes  is to goes facts and i don't think there's a dispute as to what the facts are so i mean putting it simply if the bank and i run out the door and the police are chasing me down the street i've committed the crime of wrongdoing and i've also he provided the denial well we know this is where he was based on but the record we know he was not sober either though he did have counsel and it's the government's burden to disassociate yourself from the original crime no research i'll say one other thing there's there's no justice without truth and there's no place harder to find truth than in the sexual conduct of people and even when even when you are sober it is astonishing to me how two people involved in such an intimate act can sometimes have two very different views as to what just happened and i think anybody who's practiced more and see a denial route while it was found to be a crime it was not the kind of disassociated thinking or dissociation from the original rat that would render it a separate offense very separate crimes because that's exactly what the b i reject as is that the standard though this is never it never would have happened but for is that the same as saying that natural flow of consequences put nothing on i mean the judge has found based on the record the same record that you're looking at that these are two separate offenses but it was the government's burden of proof by clear and convincing evidence  what clearly convinced i think if i was the judge it would not be clearly complaints because given the wee hours of the morning the proximity of time the uncertainty as to when he actually made the false statement the fact  he made was actually for intercourse and that that the charge of rape he was found not guilty of so i'm not on that really sure what happened in that room and nor was there any inquiry made by the government they is such a unique mechanism of justice in which the articles eighteen sixteen and thirty six of the fifty six and thirty six of museum j congress has delegated specific power city authority including under the constitution as far as  regarding application of modified categorical approach you have to look at the jurisdictions application of that statue coming back to my initial question it seems like you're asking us to rock into the right patch of separation of powers the congress has given the president the ability to deal with the courts martial for sentencing poor punishment not to the elements in this particular case for purposes of sodomy it sets forth with the element saw and then stepping back again opposing counsel mention this hornet's nest but we really have to read this conviction within the context of mathis united states read the statutes as they are under the uniform killing code of military justice if you slowly cite to the statute for purposes of charging individuals with an offense that those particular statutory language will idea what that particular individual is charged with that as a result we are compelled to go to what the president has been delegated with power to do and look toward the elements to make that determination remember with regard to the uniform be consistent with his doubt and says what procedural how do you how do you conduct process we're talking about the actual definition of the elements of a  crime and i understood and obviously my interpretation would be more broader than that on the article thirty six however i think the language in and of itself of the middle for courts martial was specifically i don't think you can get any more specific and then unless this court is inclined to say that the president the president's delegation of authority does not include that list of elements which are set for work within part four of the manual for courts martial because that's a breach of his responsibility his powers under the constitution of the united states because if you look at  here and separate paragraphs under the main if a court martial part for elements and then aggravating factors elements what must be proven beyond a reasonable doubt or what must be proven it's by force without consent said there was some situations with regard to the age of the particular victim and then subsequently does it go on in the meanwhile for courts martial talk about sentencing in hansoms on the part for now they're in the same paragraph but also with the statute it's literally the next paragraph after the statute which situation arises that when individuals are charged article one twenty five we're the military courts now put into effect this kind of long line of questioning within military courts to get it outside of constitutionally protected activity and what the taking that road trip you start off the wrong way and you end up about a thousand miles in the wrong direction because you're it's he's arguing in effect there's been the death of common sense and i would concur your honor and subsequent to that if you felt as though he was eligible for cancellation you should have at that particular time and number three cancellation of removal is a discretionary  after it was ten years your honor and i can only surmise as to the very nature of not all the v these convictions with regard to individuals whether or not they're illegal immigrants or whether or not  any any pickup to that obviously our position would be it's unnecessary because at this particular time he was hanged he had the burden to do so when he failed to do so and i understand the complexities involved in with the military justice military punishes individuals for failing to go to work when you get convicted or get put in the brig for that i mean it is a very nice system and at the end it's a unique system that must be treated differently and it doesn't open up a pandora's box as i think opposing counsel mentioned with regard to people states seem commissioner yet because we can look back to the constitution of the united states as to what the authority of the state can sense and commission is reaching in for purposes of the president being the commander in chief the arguments both ways i mean clearly the argument of justice kagan in the majority of court is were we need to make these things so we understand what they are so we're not continually diving into the weeds trying to figure out what went on we're back and twenty five years ago into or whatever and and we just keep on that path where you agree or disagree yeah the other thing and i just want to clarify that position on relief  frankly surprised that it wasn't remanded for that but any event i think the other two issues are dispositive of the case and what this point i would like to make is that there is a published opinion in this case from the from the first appeal which means except for the area of the aggravated felony finding war that is still being cited to and so to the extent that they've determined that opinion that anything that you prove essentially beyond a reasonable doubt she kept counted as an element of the offense remains why and we would hear that anybody gratian court and so clarity particularly in the military context would not only be it is what i think tone is quite clearly rule that the statutory elements are the criminal elements of the offense and the circumstance specific needs by which a crime was committed goes to be enhance punishment or to punishment the president could have punished all sodomy by life in prison under under the delegation they broke up sodomy into various categories for how they and so that's what we're looking at now as i pointed out my my brief congress could correct this and indeed they have and they changed the statute so what we're looking at is the agent definition that