federal statute and state criminal code that existed in one thousand nine hundred six the date of iris enactment under every test the generic definition of murder is limited to killing a human being which renders section one eighty seven over broad because it includes killing a fetus in its homicide statute the b s a did not spend much time discussing what was meant by the human being element in an m w or in this case but that issue was in plain sight and that oversight speaks to the lack of expertise in criminal law that i'd say quoted one eighty seven that mentions the killing of a fetus and lack of expertise in criminal law yes your honor that the court has recognized that expertise necessarily for that become a criminal trial lawyer or something and someone has to and does nothing but study criminal law they can determine what the rules and regulations are sure they have the expertise that's true but in s q l continue the supreme court decided the meaning of quote sexual abuse of a minor another generic term found in subsection eight of the aggregate felonies where murder is located  supreme court found no ambiguity in the equally defined generic term sexual abuse of a minor that did not reference any federal statute it may be unclear but that does not make the term a rejected the request for a rematch and rejected the request for a chair and deference because it showed that federal courts have the tools to figure out the meaning by looking at the one thousand nine hundred sixty eight statutes the now this federal statute and far that this one california law unlike many has this additional and fetus as i understand mr bend has conceded i mean he says the law's divisible correct correct correct and that b i a didn't address that but that part doesn't really matter then correct correct we send then we move down to the next phase of analyzing under the various that the difficulty i was having is once you get past the categorical and say it's over broad and then say it's divisible then you're into the modified categorical true yes ok so that's really where i wan focus the argument i'm having sort of a common sense collision with a technical collision on the law because he never disputed in any way that a fetus was involved and everything and all the records say of course that the victims that were that were human so it was a it was a human individual and i understand your argument is but you can't divine that from the pieces of paper is that right on this particular record and this record and this record because the question is whether the two conviction records to conviction documents are adequate to narrow mr bence conviction to the generic definition and what are the two conviction documents the final judgment at three forty one which lists only count two as quote section one eighty seven  voluntary manslaughter which are not alleged at all in the original complaint the attempted murder and then the other crimes of gross vehicular manslaughter murder and leaving a crime scene are not in the judgment i had a question about that the attempted murder is listed on the abstract judgment as count two no two yes but is there any question that that attempted murder is the same attempted murder that's in the charging document absolutely the best case in point of a rato there because it's a modified count two in the judgment from the original document there the quote is that quote that one could easily infer that quote modified count one unquote a rose from the same conduct as quote count one unquote it's not sufficient that step three inferences are not enough that step any of those three documents would have been sufficient and the da just did not do its job in the situation to produce the actual charges to which mr then pled guilty let me ask you a reminder for that no your honor the other cases and is not required when first of all as suggested that when the government has not suggested how to cure the defect deficiency and further under challah guera when it's a matter of evidentiary deficiency the d h has had notice to comply with step three before so and cannot get a second bite at the apple and that was a child up case which terminated proceedings rather than letting the government get a no fee just involved so they couldn't possibly could they couldn't possibly charge him with attempted murder of fetus so when you plead guilty to that why why haven't you already defined it because of the facts of the case well the camp makes very clear that you do not look at the facts of the crime but you look at the conviction or the elements of the conviction i understand we always have said you've got don't find  italy or something but it's impossible for him to be tried for killing a fetus impossible under the facts the situation seems to me and realistic maybe that we have to do this law things a lot unrealistic california criminal statute matches the generic child abuse offense a somebody else decided not to but that doesn't prevent us from doing that and well you are the government has to provide an encounter authority and most significantly in indiana lara well of course we're well your honor by contrast with a particular serious crime that would be an issue that deserves when we apply well does a b i it's the question within the expertise and scope of the agency and where it's a particular serious crime determination absolutely is the question of whether a state statute meets the generic definition of a crime that's a question the question is why should we remain yours you know they but i mean it there's something i understand all the details we have to run through but there's something just jarringly nine commonsensical about the fact that a gentleman convicted on terror manslaughter an attempted murder that we a human that we're somehow going to say that the petition is granted because the possibility however impossible of a fetus would command that result i  the court that to consider the other story and the other factors that terminations is within their authority within your authority to exercise as well and one other last question and i know you've got running time on the serious crimes issue and whether he poses a community danger did the immigration judge use the wrong standard on that yester on or didn't have the benefit of the man sanchez and also the briefer numerated number of errors where he didn't actually live there he supposed to look at the facts and said he just looked at the elements that attempted crime is really bad there is and there is an enhancement of a deadly weapon when he didn't look to see the deadly weapon was alleged to be a truck and was a car accident so there that analysis wasn't done properly in the to the agency the body that needs to decide that properly thank you needed more documentation whenever this information appears to be the final and last information is what is happening in this record when you turn like an information it shows a california practice which is amendment by interlinear so to the left in the margin of each one of those charges you see writing and what the writing is like to charge one which is some dishes argument i can back up for a second is that there are four charge information only two in the judgment and they don't line up so the first charge of murder  was just california case law allows this practice of motion by interlinear she's handwritten notes to the first one is p and is the one nine hundred two and the right on the left hand side which matches up with the judgment count one one ninety two he plead down to charge that also matches the judgment attempted murder as charged for count two and then every other charge has a note written next to it dismissed per plea negotiation and also matches up further  top of the page and three forty four which is the remaining part of the murder charge says on the left at mit's admits is the use of deadly weapon and that is the enhancement it's also reflecting a judgment which is an advancement charge one there but it's not necessary in this case because the record of action matches that he was convicted of attempted murder as charged in this information so what does the me reference mean after one ninety two i believe that for whoever was present but i'm not i'm not so we don't know i mean that's a problem because i don't see that somewhere else so i always know we have if we don't know what that is we have that matches up between a judgment and information that shows everything matches up you have as a charge for count two and count two is charge and judgment convicted for attempted murder count two and count convicted of attempted murder of a human being but doesn't really contest they did not murder a human being it's really an argument these documents don't match up so i mean just go back though he accuses him of murder under one eighty seven a correct correct where does that turn into attempted murder let's count two is charged with attempted murder so you have a murder and attempted murder right so murder turns into voluntary manslaughter conviction when i mean that's kind of one of the problems is that the attempted murder is count two here correct correct and that's one eighty seven but the information says he's charged with murder which is one eighty seven and and then you're saying we should simply look at the handwritten note that says one ninety two ye information i mean i mean again what's encompassed within one ninety two it's a voluntary manslaughter but what else does it say under an information under no under one ninety two those are i believe in for whoever was present but i'm not certain now i think we're kind of missing each other and that's what we're trying to find i understand are standard under voluntary manslaughter which is one ninety two as anything else included in that statute  you know we're not charging as a grounds for the builder only relying on count two attempted murder for movability as not it a felony if you can you give me your authority that this is a guess a common way to amend the information says to murder keith jones common human being yes so is there any variation between the attempted murder charges listed in up with this amended version of the information so count two as amendment says as charged that's attempted murder as charged but i see many information that matches up the judgment count to attempted murder same in count one it has one also includes the enhancement which he admits to right and that matches up with the judgment there is the sentence and cement there is a voluntary manslaughter and there is attempted murder and that makes the information that's just what the judge has and then yes so will it so if you're saying that on attempted murder that doesn't really change at all to count two it's attempted murder of a human being correct but you're using the voluntary manslaughter amendment just example  yes and so do we know that there's anything other than this document i think it's likely there is a plea agreement out there just was never challenged below so to govern to not have to submit this information court of any questions on a particular serious crime determinations in this case well the question they asked well mr benson counts on that you know may not matter the question of whether the wrong standard was used the circumstances underlying it i don't think it can be argued that attempted murder and manslaughter by their nature are very serious crimes so that's the first factor in a sense imposed for each so you don't feel it's you don't feel less necessary not in this particular case but going forward if there was some question that the documentation showed murder of a fetus aboard should have not tried to answer that question whether that generic definition of the boarding forces includes eligible for that form protection thank you i have three quick points on the handwriting question we don't know whose handwriting that is we don't know if that was entered at the criminal court we don't know if those are notes from the record at the immigration court as if we're trying to figure out what it is what's significant is that you can't simply write a different code there are different elements in one ninety two as there are in the subset of crime of murder of one eighty seven those elements are key for instance there is malice required under one eighty seven there is no malice under one ninety two so this isn't in adequate substitution cavanagh to judge to point kevin that does recognize that that california complaints are amended  and they can be amended informally however cabin act recognized that at the modified step three when it was the same camp that was that was in there was only one count in the information only one can't in the judgment and there was a showing that he admitted to that here that count two on attempted murder remains the same correct yes but they're but the original three offenses in the original indictment aren't even present in the final judgment which makes it very different than cabinet  had the same you could see the same line from the judgment to from from the complaint to the judgment whereas here we have three different conviction or three different charges that went away a new one was added without knowing what the factual basis was and again with al defendant was or the non citizen was charged with two domestic violence convictions relating to his wife he pled or he was found guilty of a simple assault and the court said we cannot presume that his wife was the victim when it's not alleged as such it because the government should not get a bite at a second bite at the evidence cherry apple and third even if you disagree with this the ninth circuit of a three makes clear that an aggravated felony on an on its own is not a particularly a serious crime the key determination is is the offender dangerous on this record mr bat has two letters from prison officials attesting to his good character and rehabilitation the b i erred in overlooking that  because it said it was never raised but on page thirty nine to forty there were five different points in his pro se briefing where he did allege there was there was an error on the p s c so even if the court disagrees with me on the aggravated felony requests remand for  proper analysis of the particular serious crime thank you thank you thank both counsel for your argument this morning band versus bar is submitted the case for argument is tell gender