he was sentenced more harshly than federal law intends and that the tenor of these the tenets of this argument are first the categorical approach which is demanded by map this and barry and the sixth amendment and second a very broad georget aiding and abetting statute which was which is a political goal to both rape and kidnapping and which is far broader then the federal aiding and abetting statute there is a third tenet although i have hesitate to mention it because i don't think it's really necessary but third sort of was drafted to include two activists reus exceptions that is attempting conspiracy but alack to include the aiding and abetting as a third actus reus exception and for that reason it is arguable whether aiding and abetting using included in the sort of statute it appears that it was not and if it was not included that is either accidental or intentional it probably in my view it's best intentional because with the sword the statute is a comparison statute and when you compare different things it's very hard to compare it in a bed and guess it comes in many different forms so getting back to the to the in a jurisdiction which has the following statute the the statute says has a party to crime statute it says every person concerned in the commission of a crime is a party there too and maybe charged with and convicted of the commission of the crime then goes on to say a person is concerned in the commission of a crime if he there directly commits the crime intentionally causes some other person to commit the crime intentionally aides who are bets in the commission of crime or intentionally advises encourage hires counsels or peers another person to commit the crime that statute is so broad that the hendrix case when it considered that statute said that even though a person wasn't guilty of rape if he had a codefendant that was guilty and of rape and if he did any act to activity to either suggest it is the the fence you're on to the problem with that position is that this georgia statute is broader than typical aiding and abetting typical aiding and abetting has in mind something which is done which causes the commission of the crime this drawer just statute includes in its wake any advice encouragement counsel whether that advice encouragement or counsel is or is not effective in houston does fact encourage the offense that love that white statute is much broader than the federal rape statute and is much broader th be the form of the sexual contact here really i don't think that's much of the issue today because there was us taking issue with your fact you're saying that rape is broader than the federal sexual abuse and i think it's just the opposite we have to be accurate i mean it's a little bit like your brief or you use the word accessory throughout which is an old fashioned term that includes accessory before the facts us react the fact  those discussions aiding and abetting is a well understood term that's been addressed by all courts in the country and when you aid and abet your principle your honor the aiding and abetting does make you a principal what i'm saying is that this georgia statute which is the georgia form of aiding and abetting it is much broader than the federal aiding and abetting aiding and abetting statute includes these other terms such as invited as encourages or counsels which is consistent with an interpretation that the georgia  broader than federal aiding and abetting and if georgia statute is broader than aiding and abetting as i contend then the consequence of that is that the  george rape conviction and this is a case where it's clear from the facts that the defendant wasn't the principal actor do you have a case from ride but did song minor conduct which either he didn't and that is or encouraged the commission of the crime and hendricks sa principle and the and used all the language and said basically i didn't see chuck turn threaten her with his life he held her while they were to allow the sexual intercourse and charge him as a princip it's not a lesser included offense or lesser conduct it is equal to the conduct but instead but in a upholding the conviction your honor the georgia supreme court said that if anybody either aided  members to reach that conviction of the defendant when we're dealing with the state predicates what and when if you're relying on a state predicate to say that the state statute is broader than what the federal law would allow we have to look at what the holding is and what the facts were in that case so like it did he marry not sure that hendricks helps you so you have some other case where somebody is just you know miles away from the incident but arranging it or something like that that might be broader than the federal statu precedent when we have a statute such as the georgia statute it's now codified it sixteen to dash twenty that's an incredibly broad statute and it's broader than federal aiding and abetting and it makes  the georgia rape concept broader than the federal concept and because of that mismatch and remember that's what we do when we do the categorical since we look for a mismatch between a federal statute and a state statute and when there's that level of mismatch then the sixth amendment and barry and that the mismatch means that we can't conclude that the georgia rape is a quote to the federal rape statute and therefore it drops down to the default the georgia statute that's in the subsection four intentionally advises encourages hires and counsels or procures another to commit the crime is really not far apart from the same thing this is the federal mismatch between the georgia statute and the federal statute we have a situation here where the conclusion follows that the federal statute and the state statute are one month sentence which was imposed it is proper and in the case i believe that's the most appropriate result here given this record given defendant and given the mismatch between georgia and federal law his argument is that both the feds and the states have aiding and abetting but his argument is that aiding and abetting which makes a person principal in georgia is a broader aiding and d that respect because what gonzales says is that the defendant has to show that there's something different about the particular state statute either in the case at hand which you can't do or in any case in georgia applying georg get the issue that's really now presented here i must say i had a little trouble deciphering the brief because it kept using accessory and then talking about attempts and conspiracies or which are all  fed that is very much in the nature of the collection of the verbs used in the state he points to one difference which advises or counsels or procure seems to be in the same but the word encourages is not in the fed and the question is is that any different of than the collection of verbs that's used in the factory i think that's really where the question comes down at least as today if i understand it and that's right your honor and and the fact is if you look at the verbiage in the george statute there is there is no difference between the two and what the supreme i don't think you understood the question encourages seems to be something that different than what's talked about in the federal statute all the other verbs i think that you can find replications of in the federal statu by someone physically and that there be a person there that has the intent that one of the crime to be committed essentially or hendrix seems to help you in this area because they use the word expression encourages and applied it in a factual circumstance th encourages of which is fits in with the other verbs councils and procurers and those things i don't know if we have any other case that says encourages is really different in kind that can be  a telephone call from a remote spot and said we want to go ahead and rape or go ahead and rape or that would be strange of georgia found that to be aiding and abetting but i think my question really ask you to focus on know variations in the betting statute in all these fifty jurisdictions but in their so in their survey of all those jurisdictions that from from the supreme court's perspective there are there are no differences  in those jurisdictions but if a party is able to come up with a case or a factual scenario where george has applied the law in a way that distinguishes the supreme court's reading of those aiding abetting statutes then it's appropriate for work to consider that but that certainly hasn't happened here i've found a case in georgia that applies it in a way that would take the predicate offense outside of the federal generic let me just be sure i understand your argument so your argument is that the supreme court has defined aiding and abetting but after doing its survey of everywhere and it doesn't include anything beyond what's in the federal that that the ninth circuit interpreted as being including aiding and abetting under california law which is broad that aiding abetting is incorporated into the federal generic theft and in doing so it took a survey of all the states and the point that the court was making is is it's not appropriate for for court to engage in a far flung hypothetical scenario with defense counsel what the defense counsel has to do is point to the law of the of the jurisdiction where the predicate offense came from and provide the court with support that that that state has interpreted it fifty jurisdictions treat similarly principals and aiders and abettors who fall into the second and third common law category and does and says the laws uniform throughout the country and i may be right i am and here it seems to me when they use the word encourages to commit a crime that in is a verb very similar to councils a person to commit a crime or induces a person to commit a crime and those of the federal times are only left with and encourages could be inducement or could be counseling but the state includes all those terms too it doesn't include induce you'd have to say encourages and induces are the are the ones you'd be looking at and if there is a difference i'm not sure there is but if there is a difference i would think we would need some george interpretation that says are aiding him better is broader and that's what been solacing to say and that's right if the same argument was made to the supreme court there the california statute is different and the supreme court nine there's a short discussion about what it means to have a realistic probability so the analysis is if you have aiding abetting and it there's no other there's no apparent than what the federal law provides and there's a practical reason for that and that's that the supreme court doesn't want a court to review to be to engaging in this in this analysis there's really no limiting principle courts start to engage with the fence counsel about these hypotheticals defense counsel said let's give you this example but that's exactly what for gonzales was attempting to foreclose by making the point that anybody has been collapsed into the principal offense and therefore you lose unless you can show under georgia law that's that's on that's that's undisputed on enough right and it's unfortunate that the defendant briefs seem to suggest aiding and abetting was lesser conduct that he actually didn't do the rate he was there with him in and assisting the other person who committed the rape but that is a flawed analysis of mis understanding is he does make the argument today that the statutes aren't perfectly aligned and i'm not sure that the word encourages and induces how much difference those two statu have whether whether georgia would find itself broader than that and reading hendrix it doesn't look like i don't know of any other case where georgia has focused on this and my argument is top of my head so i qualify it a little bit but i'm all are i never i never considered the fact that this court would ever find it encourages not akin to what happens in the federal statute that might have been incorrect on my part but i never thought that that would would tell you that encourages is broader than the federal statute that it would also add your honor that even if you were to find there was an area here there's another possibility but all rest on my we just ask you a little bit of a procedural question we're caught a little bit by surprise by this argument you didn't make it in your brief and it wasn't how should a court react to that your hon r i'll all confess that i was not i was far less than enough perfect in my briefing i did cite the georgia statute on page fifteen of my opening bring over did but your basic argument was that attempt and conspiracy is separate conduct from the underlying act and aiding and abetting is likewise separate conduct it's lesser conduct than the actual commission the crime well of course that is put to bed by both the state court and supreme court now you're basically arguing today for the first time that the george eighteen abetting this broader than the federal aid in abetting i'm not sure that it is but you certainly have a different word to argue with courage is versus duces or whatever verb we're looking at yes your honor that my question really is is this something we should hear and consider i think you should there's a man sitting in prison because of the words of the statute matha says that we need to do and very both tell us that we need to do this very kind of comparison i was looking through the  notes of decisions on the georgia statute well mr jayne was arguing i do notice that there was an eight hundred fifty four decision from the georgia supreme court which although that was before your brief no it's not him by brief i'm trying to answer the court's earlier question about whether there were there were there's authority but there was an eight hundred fifty four decision from the georgia supreme court that held th whoever assist a clerk or an agent to commit a crime in his absence is guilty of georgia aiding and abetting and i would say and that's the haley case i would say that cas like that together with the use of the word encouragement suggests that the florida statute existed eight hundred fifty four there was a different version there was a different there's a real problem if you don't  prefix things because it really isn't fair to the government i understand it that your client is in prison but also the united states has a has a position here so you're not only citing a new theory but a new case involving a different statute that's more than a hundred years old to assert your honor i was trying to judge answered judge me mark's questions because he was looking for cases where somebody wasn't present in that case leaped from the  response to encourage is not much different then induces or counsels or advises i mean it's not a question of presence it's a question of the contribution of the one person to the act commission of the crime and there there is a difference in the manner in which the encouragement because if the a courage happens during the commission i want you in the abstract if i encourage you to do something or advise you to do something and i in my or causative relationship between the encouragement and the conduct and all except the georgia law says you still have to have that causative connection it says that nowhere and sixteen t twenty which is the current statute it so it starts from directly committing the offense then at the next level is intentionally causes and then below intentionally causes are things less than intentionally cause the third level is intentionally aids and abets and the fourth level is the encouragement and that difference in the graded statute means that this is a statute which is broader than the federal