well it started out when i wrote this brief this is an issue of first impression and this court spoke at least somewhat on this issue yesterday i like that case a copy of the case to m the california diversion did the case the conviction we have is the c version of two six one point five in the difference is the age of the the age of the person that's unable to consent now element of the crime to come to the generic enhancement version of it just as they did in taylor when he said well the contrast of california berkeley statute which doesn't necessarily involve the do only with michigan's which does so if we're going to elements your honor but the federal court has to look at the uniform definition otherwise and what would happen in this case as we pointed out because to see a version of the california statute in is we have to find a definition of the end if someone were under in some over over that's fine but we have to look at the majority of states in over thirty states now according to federal court or federal jurisdiction say  two hundred section i think it's eighteen u s c twenty two forty two three or four it's in that section you know but that's that was part of the argument that's one of the jurisdictions that says that is that sexual abuse of minors little federal law enough federal included law is sixteen so i think with we're looking at a uniform definition then the age of consent that reflects the age of consent in the case and it came from it's out of tennessee where lopez found that well it didn't qualify as a true you know as a statutorily defined crime of violence by congress nor sex abuse of don't the guidelines say that it could statutory rape and then that what statutory rape is you know to that the state law which is california well i think one of the guidelines can say in we don't have a problem with the s free to send us up to the max but the max for a felony simple as the united states supreme court called it in lopez the falls is has less concept of collateral consequences and the fact is the difference between a prior but then as that evolved and that's really what it did in that case lies called it that and when understandably judges defense attorneys and some prosecutors all say to complain that that was too harsh that the number of crimes under eleven one hundred forty three is just everything from stealing a car to selling five tons of cocaine was a sixteen level and so in two thousand and one they did make the amendment and at that point they included forcible sex crimes they put in predecease including sexual abuse of a minor what's the of crime of violence set forth by the sense of commission as a sixteen level there was a further amendment in two thousand and three which that meant is that if event at six fifty eight and talked about how it built upon the two thousand and by clarifying the meaning of some terms and one of the other issues they wanted to clear up was a concern that people thought that the enumerated crimes as mentioned manslaughter or murder sexual assault cetera also had to have an element of force or violence being used and the guidelines rejected that again as as had been noted in the patel florida case council now tries to argue that because of the new application note that somehow you can tell it's not good law clear that some crimes of violence will fit the definition of an aggravated felony under the immigration law and what their course right now jihad and what they're saying is is that if you fit that you're going to get the city in love with the twelve level but if you still  briefly just on the argument that the n t commission is an interpretive body and cannot create law i would dispute that if you look at title eighteen nine forty four a it's the statute that of course created the commission revisions of those guidelines and then most important the procedure is the course they just proposed the guidelines there submitted to congress and they do not become law unless congress changes that mental congress has the right to it does appear that that new case the gomez case is important to that that she's talked about how that story rate has been considered to be a strict liability crime for quite some time and one of the arguments raised in that violated that would not fit the definition of the statutory rape i think that the commission clearly added that because they felt there were a number of cases ahead addressed the statutory rape type crimes that were found not to be what was at that time the only crime mentioned in the crime of violence that involved young children sex and that was sexual abuse of a minor and so i think that they deliberately called it statutory rape because they wanted statutory rape as all states do whatever the age of minority as all states have that to protect young women because of the potential harm to them by having sex even if it's consensual  twenty one which would be making the same argument i think it would be a hard target to make but i don't think that it it does damage to the guidelines to allow it state to say at what age a young a minor and an adult and i think that the focus of the crime justice focus has to be you know who's a miner that's correct thank you thank you for your  aggravated felony they cited that to say aggravated felony has more extreme consequence now i don't care what congress said about evolving its guidelines they never gave the sentencing commission to power to increase the punishment beyond the statutory maximum you know if they are allowed to create crimes or name crimes that are not named in the immigration statute as aggravated felonies and then they're acting as a legislature that can change the known punishment allowed on the wall and ask the difference between thirteen twenty six b one and between you know this judge you said earlier we're writing for the future and this is this is the future here this is an area this is a confused  this is one area that needs to be cleaned up by the court is that just because the senate the commission says statutory rape is an aggravated felony that does not make it so because congress has not said that it's either a crime of violence or it's sexual abuse of a minor and just circuit it says this particular statute we're talking about today fits neither of those and i think that all comes down to the idea we can define statutory rape as a subset of one of those and that would be by saying that the uniform definition is the age of consent for uniformity is sixteen which is in accordance with the majority of states more than thirty at this particular time and california is in a distinct minority