good morning and welcome to the four circuit judge when judge rushing and i are pleased to be hearing your cases today the st case on the docket is united states versus it were j w decided last year by the united states supreme court the case for which this appeal was held in abeyance the nd ground ex post facto qualls has been rejected by every circuit to have considered it and that the circuit has continued to rely on gold and unpublished decisions in the years since it's been passed the district court however well why doesn't under seal resolve that issue under seal your honor  on this court held we find at cern it is a non punitive simple regulatory scheme both in purpose and effect that clears proof sufficient to override the intent of congress that why are you arguing about cool regulatory and not criminal that answers that question i would also say based on the government's twenty eight dollars j letter and i think the case finally having been resolved i agree that there are five justices that held to be clear the gunny case was resolved when you filed your pre yes your honor there was a petition for each hearing in the school it was strange i was trying to be zealous and i was trying to make sure you agreed now it is i agree your honor not plainer it is it is not clean air or it is not or that unless and until the supreme court you know changes its mind effectively i do think that the nine delegation issue as we talk about you know it does have residence here because it does inform the ex post facto issue and as a form the constitutional avoidance issue we raise but it would say judge keenan there are two aspects to sorta there's a law saying that you must register which again if this court has held that that is civil then that is civil there is also the indisputed only criminal aspect of if you fail to register if you must register if you travel in interstate commerce or it's offense and if you fail to register that's criminal mr wass was indicted that's obviously criminal and so are secondary argument regarding the ex post facto clause is that the need to  register is triggered by an event you must register if you are a sex offender you are a sex offender if you committed a sex offense so that is conduct that the defendant engaged  that was not criminalized under sorta sorta didn't exist at the time he engaged in it that now his criminal consequences and the gold case we need addressed ex post facto and again i take your point judge keenan this is not about the nature of the registry it's so if you look at the cold case at page four hundred and sixty six dollars its discussion of the ex post facto clause was very much tied in to what was at that point an unresolved question about whether the defendant even needed to register before his state in acted sort of in the carcase if you look at footnote two did not touch on this question as to whether a defendant actually needed to register that the nine delegation issue was still bubbling up there was still a circuit split i think at the time it was the in term regulations and not the final regulations and there was questions about notice in common so even though in car did not do that and yes i understand i took note of the fact that mr pugh was up here for about ninety seconds so i understand the court's position well why didn't you just answer the question why is it not for close by and the all this sort of was punishing is the failure to register which obviously happened post in ekman our position which this court can adopt or not they agree this fails of this court is not a doctor position is that the way carr changed the framework and implicitly overruled rule goold is that carr establish that no there are three state elements that must be met the need to register which if you go through the statute effectively means you committed a sex offense you travel you then fail to register and so the reason gold does not foreclose it is because at the time of gould the this court thought needed to be engaged in was the failure to register and our position is that card changes that so again i understand judge when and here  time and i do think again and if i may for another thirty seconds say i do think the most interesting academic aspect of this case i think is constitutional avoidance in the arena where congress has actually thrown up its hands and said you don't want to deal with this i think constitutional avoidance is generally seen is effectuating congress's will st is the judiciary power to rewrite a statute through interpretation this is a little more interesting because congress his will is we had a new idea we'll let the attorney general deal with that hot potato perhaps they should be writing a law review article instead of giving in oral argument on that point but i do think as we pointed out in our brief there's at least a couple cases where the supreme court has not hesitated to use constitutional of waynes in the face of executive regulations or executive agency action so if this court has no further questions we would rest