nine nine nine united states versus christian three offender the government concedes that his rhode island conviction does not match all of the elements in the specified two or three offenses under sora nevertheless it maintains that soreness requirement that the state offense be comparable a more severe than a two or three offense is a very flexible standard the biggest problem for the government is however flexible the words comparable to are they cannot flex  provision that the minor victim must be under the age of thirteen for the sex offense to qualify as to your sort of puts a premium on this age requirement the each requirement is provisions there's the age requirement that the minor victim must be under the age of thirteen for abuse of sexual contact to qualify as chair three whereas that age limitation is completely absent for abus the government also argues that it will qualify as a cheer three offense under sixteen nine one one for a little i the problem with that is that there are no elements in the rhode island conviction such as force threats actual incapacity capacity of the victim none of those kinds of elements are present in the generic statutory rape crime which was the his conviction  rhode island so they can't meet the even if comparable is somewhat more flexible than say in jones where the the the state offense had to would have been a federal offense even if koppel's who is a slightly more flexible than that it's still you still have to comparison to the apples to apples you can't compare apples to oranges and that's essentially what the government is asking this court to do a good example of this is and it's prefix it discusses the it was about the quote mere intent to cross state lines in order to engage in a sexual act with a minor under the age of twelve and it it tries to say that well here we have a completed sexual penetration of a minor under fourteen years old under rhode island law so isn't that more severe than the intent to  cause well that cannot be because the elements are entirely different against comparing apples to oranges and so you don't have the intent requirement in rhode island for one thing you don't have the intent to  ryles any other person which this court in general once found very telling that if that intent element is missing then they can't show that it would have been a federal offense and it's the you would you agree to these appear to qualifies as a tear to sex offender and that's because i take it that it meets the standard of abuses sexual contact as described in twenty two forty four ye contact that it then congress goes to tier three and clearly expresses the intent to show everyone that it is much more serious we're going to catapult you into tear three if the minor is under the age of thirteen so because congress is putting it in one but not the other under basic sets reconstruction we know that that that needs to be shown and that and it's just that the p s r loan even under plain error of you just doesn't give us anything beyond really the rhode island statute so sexual penetration of a minor under fourteen you can see that we have to look at the age of the victim  age of thirteen but the victim is eight you don't qualify under title under two or three according to this case and i think it's a it's persuaded me anyway you can't go into what for us doesn't depend on that even if we do look at the age of the victim you think you still win because in fact here the victim was thirteen not younger than thirteen cracks in i realize that court to judge the wisdom of that i think the government kind of questions the wisdom of would you saying this is not because comparability the can't apply to an age is it because the way the text reads comparably applies to the offense in other words the contact in the age is just outside the language of comparability other words is the offense comparable and then separately congress tacked onto it each restriction and how we supposed to just read this why is it that when the difference in your view is outside the bounds of saying it's comparable where you know certain differences in the elements slight variation presumably proper means anything have to be not otherwise would be identical because florida has determined under the tier classification scheme and i want to be clear on that because of course he is still subject to sort of requirements because of the defense what congress is saying though is that we have we we have to tear these people so that the most recidivist so the people who engage in sexual acts with very young children below the age of thirteen we're going to treat that more seriously we're going to treat that so it's so it can't be just the conduct itself what if the state statute said something like under the age of thirteen or under the age of fourteen if the victim's i q was not above a certain level or emotional maturity on some scale didn't reach a certain level it's i'm just talking about th comparability does apply to the phrase who is not attained the age of thirteen in other words there is a certain fit yet you do think that because you could think the opposite which is that abuse or sexual contact contact we compare that to make sure it's comparable doesn't have to be identical but then you could say but that doesn't imply that congress meant to take the whole phrase of well i abuses sexual contact plus having thirteen and then look at whether all of that together is comparable to some other fence that seems to be the governments are gone i would have thought you would argue that you don't have to get to that congress just put a hard stop that's why i is different than the tear to definition of abuse the government could separate out little i again there's just no force no threats if you if you read all of those statutes there's just no comparability there thank you  thirteen year old victim cut off it's simply roque's in a number of predicate federal offenses if you look at page six of our brief we compare this offense of the rhode island offense to three of the federal  offenses that are roped in under a i and granted each of those federal offenses has something a little bit different about it than the rhode island offense but here the statute this wanted to hear statute is not a sentencing enhanced means statute all it's rather a statute that's designed to place offenders in different here for purposes of the registration process under sauna and the very words of the statute comparable to or more  severe than tell you that congress didn't want an element by element match and the key indication of it is the word severe or more severe than you know comparable you can look at any number of dictionary definitions of that word but the surest way to define comparable is to look at that word in conjunction with the words that follow which is or more severe than by saying more severe than congress is defining comparable to mean a much more looser rough analysis of whether the prior offense is comparable in terms of its rather because you think the thirteen in little eye is a hard stop what about the deal to guidelines would seem to express these treat it as a hard stop the guidelines do tend to treat it as a hard stop but not clear just right well this is why we are our position is staked on a guidelines seem to suggest it's a hard stop but it's not obvious that it is for you to decide the issue here because because of i because of i and our argument is staked on i and the whole point of the defense reply brief and oral argument is to shunt you want to a two because it's more hospitable ground for them granted a high is the more difficult provision for them because it doesn't have a thirteen year victim all we can assume is that he was convicted of a completed sexual penetration which the statute requires on its face with a full public rule fourteen years old or younger so let's assume she's fourteen are given the benefit of everything ok we've got a completed sexual penetration of that girl we say that that is comparable to or more severe than the three to one side comparable will get there and ok my question is do you agree with me that given those correct but i think they put in just to make absolutely sure that they screwed that they grabbed everything possible and let's back up and recognize here you have to you have to decide number one that it's plain or office that this statute requires an element by element approach you have to decide that it's plain or obvious that the categorical approach applies we haven't even gotten to that question yet but our position consistent with the ninth circuit's decision in the beyond case and more recent decision out of the fifth circuit u s v gonzales seven fifty seven if there are four twenty five which joins the beyond decision is that the categorical approach does not apply here at least as to the age factor and probably not as to any of the factors because this is not a sentencing enhancement stature at all don't lose sight of that that it doesn't affect little i in other words even if you're right on that we just say let's just assume the government is dead right on that  cite cases case by case it's not you know me maybe i am hesitant to adopt a view of well i don't have any sense from the government that there ever then be a case that implicated i i well judge you're looking at this is the worst in over a few wonder if you was playing or if you and the problem is that we can we can talk about having nuanced discussions about all of these issues but the defendant's burden is to show plainer obvious error now you have to conclude that it's plain or obvious that this prior rhode island offense does not compare is in comparable to or is less severe than the three listed federal offenses that we're in interpretation would leave i little work to do if the government has to be wrong you can't you can't engage in statutory interpretation which leverage is that is the be and end all of what i asked me you have to look at what i said is in the plain language of i clearly supports our position it raises it may raise some concerns about what function i has left but that's not the stuff of playing or a few that's not the stuff of an obvious error at all and if you were to take that approach then converse that you'd be left with the problem of ai ai being left to no function on the other side i think i don't see what for the government to have to show you could obtain a conviction under you know federal law the offense that occurred in the requisite federal setting you're talking about that in effect is what you're saying is the element by element match congress use the word more severe than comparable to or more severe than it's talking about the gravity or seriousness severity of the offense but i don't see why you read it that way comparable seems to  offense that you the elements are such that you could have also been convicted of the federal offense more severe means that it was even worse one hundred a state law and you don't you know in other words it's so it's comparable to a simple assault no so congress could say anything comparable to well more severe than simple assault so they make sure they catch murder under that standard that the government want to seize we're asking you to do is to look at the prior rhode island offense compared to the three federal fences that we list on page six of our brief and ask whether in terms of seriousness well it's it's not quite yes there is an element of judgment and fall of course i mean but there's an element of judgment on all sentencing and has we're talking about a two level base offense level which osman which one of these offense to you put a k i would say if you have somebody who is crossing state lines with a mere intent to engage in a sexual act with a person under twelve ok in offense which in the jones case judged her way or described as a mere thought crime at oral argument that offense that mere thought crime offense is far less severe than a completed sexual penetration of a fourteen year old girl far less severe and and it will have led to an adult with a rape murder of a thirty year old that's a lot less severe that is more that is more severe but it's not a sex offense remember here we're talking about oh i'm sorry i missed the break i thought i heard just murder ok yes that that that's a more severe sex offense which is presumably why they put in force  raised in the district court and where it's actually been teed up will decide definitively whether the government's position is right or not we can't conclude on this record it's plain or obvious that the government's wrong if you can  clude that were were plain are obviously wrong you should say it in the opinion if that's the case that's the standard and if you're willing to play it then you should say how how would we have been helped at this race and fleshed out  categorical approach there might have been consideration of the state indictment which we now intact attached to our den of and by the way our position is the categorical approach doesn't apply and even if it does apply you have to give us the benefit of the modified categorical approach under which you would consider the state indictment and under which you would have to say that is plain or obvious that a man who has an all intercourse and sexual intercourse with a fourteen year old girl or under that that offense is not more severe than or is not comparable to any of the federal fences that we list on page six of the brief so but in the district court to answer your question some of these state record issues might have been fleshed out a little bit more the the thing is whether or not this the issues would have been teed up more differently for you had the issue been raised in the district court there's not it's just stuck with  talking about but if you're saying that of the state statute even if you're not looking at the state indictment even if you're looking at it completed sexual penetration of a girl which i haven't heard any explanation for what's not then back to judge barron's question how how could have raising this issue in the district court possibly shed any further light i think it was judge alex question on before the shoot visibility hasn't even been briefed in this case our position is that it is it is divisible that it doesn't present the same divisibility problem as the burglary statured issue in the de camp decision where the burglary statute completely omitted the element of unlawful entry there was no such element in the statute the government  asked the court to apply the modified carrot categorical approach under which consulting the standard documents you could tell that the entry in that particular case was on the wall for we don't see a similar to visibility problem the case with the statute and the defendant under your theory to a set of offenses which under state law you could not have been convicted of even if we accept your most whatever you think the most favorable read way of reading the rhode island statute  question well yes but the plane eric test well as i say point out to judge howard even if the district court proceedings wouldn't have changed anything about this issue the plain error standard applies here the defendant has to satisfy it right is nothing new here we have that concerned not that i'm aware of no no so i mean you know look our position is it's not a plain or obvious error if you can conclude that our statutory construction is plain are obviously wrong then by all means send the case back for a new sentencing thank you you what we just heard from the government was advocacy for very impressionistic subjective approach as to what is comparable to more severe them judge i believe you gave a much more objective reason to approach as far as what does comparable to or more severe mean because if the state let's say the state offense is murder then that obviously is soon say a federal offense assault because it's a lesser included i think that makes much more perfect sense than the sort of let's just do a grab bag of different elements and see if they kind of vaguely meet some serious or you know some seriousness but that's not what sort of does sort of has a very specific to your classification so that it's not just enough to say it's serious because course it's serious he's under sort of we have to figure out is it your wants or two or two or three before de comp and it stated that although there is some doubt about whether the categorical which can be used for sarna there is simply no facts or findings that would justify a tear three offense even under precedent directly on point and the issues a little tricky and we have to work through but in the end we come out one way is it always plainer in your view or well there's of course the as far as  r so here the what he should have done was object to the designation of a tear three offense for that particular conviction he did not do so but that silence based on that silence should not be used against him because under the law