least three men for the district court to consider dismissal and guilt without reference to the extra record evidence nd the residual clause is void for vagueness under either the fast paced approach or the categorical approach it's void on its face and in this case so the district court erred by failing to dismiss cert the district court also erred in the st instance by concluding that the categorical i'm sorry by concluding the fact based approach even applied instead a categorical approach should apply to the residual laws and if the categorical approach apply the prior conviction was overbroad d a point the government is not the test after all d the argument to preserve it for the court to review but the the st argument that i would start with if i could is the fast paced approach and in this case the  question for this court to answer is what what this court meant in hill when it said that judges could look to quote any reliable evidence to ascertain the factual nature of a prior conviction under the residual cl and the correct answer to that question one urged by birdy is that in a guilty plea contact court should look to the facts the defendant admit in the prior judicial record as well as related statutes on the other hand  the answer we think is wrong one reached by the district court is to permit the government to come in and retry the prior case with evidence and testimony that was never part of the prior judicial record and that the defendant never counselor not really trying the case it was a plain case right it was so so in sentencing the plea in case you're saying that the on the only evidence is can be considered in sentencing and our point is that the government was allowed to relate a gate the prior offense with evidence that was never part of the prior record and that the defendant never admitted to and the difference between these two approaches is very important here because  we only look to the documents that birdie says should have been considered then he had a reasonable chance of a successful clarification when when you talk about what are you talking about modifying shepherd honor we are it's a similar analysis to schaeffer but you know shepherd analysis just looks to a limited set of documents to determine only elements and we are arguing for under the facts based approach the court can determine group fast and it's not limited to only shepherd documents for example d it could they could look to an admission as a sentencing hearing in the prior record or if they have prior offenses a federal a not just a mini trial with new evidence to determine the nature of the pride of an entire trial and we also think that the case law from the other circuits that also address residual price dogs by and daily they contend that essentially any evidence beyond the fact that he had no witness this would specific evidence in this case or let's say was not reliable for example the forensic interview of the the victim so considering that evidence already had no chance of success and the reason that that evidence is unreliable is because that did not form the basis for his actual conviction he did not admit to raping a minor victim so that's that's why it's unreliable under the fact based approach in the den that that basis for there may be a basis for challenging it but that doesn't mean it's not evidence it's enough itself could be reliable  been convicted of a qualifying sex offense that does not say that they are they that someone is triggered if they have been merely accused of or charged of a qualifying offense so we think that the text of the statu supports our argument and we also think that constitutional and policy considerations support our argument especially the th amendment requirement of fair notice and i would just offer an illustration here if we take a snapshot in that birdie was a sex offender subject to federal registration at the time that he failed to register charges in the indictment if if he had pulled out someone and read it he would not have been able to know that he was a sex offender because the district court employed a version of the fast phased approach that was unprecedented under the under the residual clause so he did not know that the district court find he was a sex offender by essentially allowing the government to retry the case it was a novel reading the statute that expanded criminals go so in that sense the get for courts reading of the statute deprive birdie a fair notice and that also is relevant to the vagueness argument and we think that our argument is also consistent with judicial economy because there was no need to have this entire trial from you litigate the prior offense this case could have been disposed of even andris was stipulated exhibits or at most  ry brief hearing or trial and i'd like to also turn to the void for vagueness argument and a point i would like to stress years that under any fact based approach the residual context well i think that we get are you it was void for vagueness as applied in it and the reason in part is again because of a lack of due process notice if we take a snapshot of the  the what has to of failed to register in the indictment and he got this on a statue out and he read it he would not have been able to determine that he was a sex offender under so now because that determination was a factual determination to be made a host indictment and also even if we assume that the district court in the council didn't and didn't know what he did well right well what i would say that i mean there's a difference between we have assumed the evidence and proud accurate what he knew he did and what he could have reasonably anticipated the district court in a later proceeding to to find even if assume that the district court would have only consider the judgment and the charging instrument and the statute in a factual basis all very it needed to do was permitting a minor to engage in armful activity and  me thank you your honor is it for you able to hear me yes just one thank you may please the court and my colleague mr deane i'm kevin collar from the u s attorney's office in south dakota  presenting on behalf of the government the government is asking for the conviction in this case to be affirmed the central questions before the court in this appeal have been resolved by this court and other circuits all in the us this court in hill found that the text and structure of the relevant sort subsections are unambiguous and district courts are allowed to do just what the district court to hear when discerning whether a defendant's prior state conviction is a specified offense against a minor chords are not confined to the categorical approach or to the modified categorical broach and as this court explained in depth and health that is what the statute plain leader acts means courts are allowed to review reliable evidence to discern whether a fence prior judge smith the district courts are well versed in making reliability determinations guided in restrained by the rules of evidence that's the government's view of what applies here those evidentiary rules regarding general admissibility foundation witness confidence hearsay authenticity those are all rules of evidence that that govern reliability a proper they provide appropriate boundaries those are the rules that were applied here and the government called live witnesses those witnesses were subjected to cross examination and critically on this issue of the forensic interview found on d v d exhibit number two in the trial virgie stipulated on the record that he was waiving hearsay and foundation objections to that forensic interview in other words that's a critical point he contested the evidence based on relevance because he thought none of this evidence should be allowed but he waived those objections as to the reliability waived in order to protect the minor victim from having to testify the evidence that was presented in this case the witnesses the exhibits was just the sort of evidence that would be presented if the underlying case were to been you know tried before the district court there were objections largely based on relevance but i think it's telling that on this in this appeal there really is no it goes to the question you asked earlier j smith it goes to there are no real objections based on the reliability of any particular piece of evidence what i think mr berg is arguing is again what was decided in hill he wants none of that evidence to be reviewed because he believes a categorical categorical approach should be applied and that has been rejected so our view on the constraints of this determine our view is that it is a fact question for the fact finder to decide whether or not a defendant is a sex offender under sarna so our view is that a jury under grand day in order to comply with the th amendment would have to make the finding that the court did hear acting as fact finder that in fact parsing through the sarna statute that in this case subsection seven i applies to this defendant so we are not arguing that it's a purely legal posting counsel says is the overbred of the south dakota state well and that gets into whether the categorical or the circumstance specific approach applies and case i think is instructive on this just because it it came to the circuit court in kind of a similar with a similar record in that the underlying offense was not by its nature necessarily offense it was a assault and battery of a high and aggravated nature south carolina common law offense and so it required a circumstance specific approach to the cerner those underlying facts now i think it's also important to note that a number of these cases this case included hill included were alford please so you know why is that important well it's important because what a defendant then is required to admit on the record in the state case is essentially nothing right it's a no contest plea that's what we have here point that out simply because that i think further reflects the need for a circumstance specific approach because if you're only allowed to look at what's admitted as part of the police colloquy you're not going to find cases i would now turn to the constitutional vagueness argument you know in part this argument was also rejected in by this court and hill because the court  found that the statute itself is not vague here's the quote we agree with the four circuit that chevron deference is inappropriate in these circumstances because the statute statutory provisions that issue are unambiguous regarding the proper method of analysis it begs the question if a statute is unambiguous how could it also be unconstitutionally bay judge logan as you pointed out the law is clear that the challenge has to be in as apply challenge to be cognize it will in a criminal setting like this one this defendant knew full well that he had a registration requirement to register eleven separate times  before before he was charged with this offense he here in fact was convicted in state court for failing to register on one prior occasion is initial suspended sentence was revoked and he spent two years in prison because he failed to register on the south dakota registry system so there is really no question that he knew that registration sex offender registration was an issue in his case  we firmly believe that the issues that are presented in this appeal have been decided by this court and by all other courts that have looked at it in in  unison i really have nothing further that i want to add for the court but if there are any questions i have a fair amount of time  analysis it did not ever reach a boy for vagueness issue and as far as the government as applied argument is you know we agree bertie knew that he was required to register under state law but our argument is that he did not know that he was a sex offender at the time of the indicted conduct he did not know he was a sex offender under sora so that's that's our view and we're not are you didn't know that he was a sex offender under state law and again i'd like to just illustrate with if you take a snapshot in time when berg is alleged to have failed to register then he could