yes you may proceed thank you good morning bank home from mr gomes mendez what i'd like to do is start off with the statutory rape issue and to extend our time i'll get to some of the other issues with respect to the statutory rape issue over the past few years  have seemingly reached somewhat contrary results despite the fact that there's been a lot written about this subject i don't think any of the cases addressed the main arguments that were presenting here and that is number one what is the requisite  and based on my review of the thirty seven or so states that set the age of consent under eighteen over half or nineteen of them require or at least provided the fans that the defendant reasonably believed that the victim was over the age of sixteen so in a substantial number of states that the defendant believes that the victim is either sixteen years old or seventeen years old they're not guilty of statutory rape and i also by the way believe that it's really the same inquiry whether we're talking about thing though i don't think that the court necessarily has to branch into things like the rason entrapment in those other defenses i think you're what we're really talking about is the mens rea i think and i think that the supreme court's decision and locale puts sort of the and under fifteen years of age that was the virginia state you know he was convicted of a class four felony of this detritus he was not a minor and was not close in age to the victim he was twenty six she was thirteen that constitutes sexual abuse  to sixty one point five says that the minor has to be under sixteen years of age so you argue california seems to be right in the mainstream of states nationwide right your client was convicted of having sexual intercourse with a minor who was under sixteen years of age right but are you help here but if you reasonably believe that the victim was sixteen or seventeen it's my position that in a large number of states that that is the fence whereas in california it's not it's a combination of the two things i agree that all of you are are your argument is that we have to take into account defenses the other states in order to determine whether your client is guilty of crime in other states in order to determine whether this is a categorical well i guess i mean i guess that that that question brings up two questions one is do you look at other states and i think the answer is yes i have i think a lot of case law that says you look to the sort of what is the general contemporary view among all the states not just the one state that you're dealing with the second question deals with the issue of the fences and as i indicated before i i don't think any court has said one way or the other whether you look at the fences or you don't look at the fences when you're trying to the victim is sixteen and the perpetrator is at least five years old it's correct that the states have adopted a variety of variations with respect to the statutory rape laws some of them set the age of consent at eighteen other seventeen sixteen but in this case the only issue is whether or not sexual contact it's between someone who's over twenty one with someone who's under sixteen constitutes statutory rape so the court can leave for another day if th it's just gets worse for the for the for the turn and the younger she gets a little older he has you know that if that appears to be a reasonable interpretation but i would note that of the cases that have considered the statute previously including the ninth circuit when they've analyzed this issue they've analyzed it under the particular provisions under which the defendant was convicted so as i reviewed the cases in preparing this argument the cases would analyze for example to sixty one point five subsection c or subsection d and in reaching their conclusions that the holdings were based upon the subsections of two sixty one point five not the not the overall overall age of consent that california has adopted you are i'd also suggest that even assuming that the age of consent is eighteen in california under the and then did two point two well one point two the sensing commission intended to include all  that it it's kind of drawing a line among a whole set of data points because we all the states have all kinds of different rules what california raised up to twenty twenty three that make a difference with that then not be statutory right that question before the court however the government's position is that when congress when fencing commission amended the guidelines and they stated in their amendment that sexual rape is always a crime of violence that they intended to capture every  rape among the state however even if the court is required in this case to reach some generic definition the provision under which the defendant was convicted would would clearly fall within any definition statutory rape if the government is the government's position here today that that the sentencing guidelines include whatever definition of statutory rape that state chooses to offer or that so long as the state is sort of in the mainstream and not a not  the one one tail of a long curve that that it's acceptable california seems to be in the mainstream is your argument that california's in the mainstream and therefore it's acceptable or is your argument the hard position that whatever that it should not be included as a crime of violence so congress sensing commission intended to fix the guidelines to make sure the statutory rape is included and when they did so they indicated in the amendment that statutory rape so it's not quite right to say that the sentencing commission spoke you characterize it in terms of no matter what the position that that was the commission's intent to capture every commission did not think that obviously you construe statutes to avoid potential constitutional problems and when the same thing commissions are not in any way shape or form say that they were doing what the government is contending they were doing particular when there may very well be constitutional problems  no it's just said that it actually i don't remember what i tell specifically was are going to constitutional arguments are resolution constitutional arguments but it was not a constitutional based decision it was a fairness what what was intended know and i think that the serious constitutional problems whether it's equal protection due process requirement usual punishment to be having different our you know arbitrary somewhat arbitrary punishments if you live in one particular state in the federal