supplement the right yeah i heard your what you said you couldn't hear of cow if counsel was responding oh yes counsel for the government of responding now your honor i'll be i'll be very brief the government has never actually seen this document before i think it's reflected in the record that the government never does see this document it's filled out by probation and handed directly to the defendant so i couldn't stipulate to its admission in the record simply because i don't know anything about it so then there being no objection we grant the motion facilitating the management promotion establish there are carrying on of prostitution but she didn't actually bring hurt she would submit that it's not a sex offense because it doesn't have an element of either sexual conduct or sexual assaults usually doesn't have the element of sexual conduct prostitution does but she was not convicted share and using all the tool kit of statutory construction here can't we find green and minor across state lines for purposes of prostitution that congress likely intended effect specific approach to the attorney will leave fender is required to register under certain although there is a modicum of ambiguity on but it in by and there was no chevron deference accorded because judge burrs on found that she could interpret the statute adequately without chevron difference so the tagline modicum of  but the best reading she said she did say she was a modicum of ambiguity but that modicum of ambiguity whatever the modicum was was not sufficient for her not to be able to interpret the statute based with  throwaway line because it wasn't part of his decision in any way your honor we would i read the case differently i think that it does it if fine if it did find the and did find chevron applied it would have applied some deference to administrative determinations but your position is that when there wasn't any guideline that point there was no guidelines at that point so there was nothing for the court to to consider other than trying to construe the statute itself pursuant to the kenya canons of specially construction and come to its best reading of the statute and under brand x the court h modicum of ambiguity or some other language in her opinion that wasn't really that then impelled the decision that was made in that case was the holding of the court that binds our panel we'd be cooling a circuit split right yes your honor if the score adopted a categorical approach to the residual clause it would be creating a circuit split i would add that not all circuits have considered the issue but the circuits that have have found in favor of a circumstances of approach so let me ask you another question and that is apart from the technical issue that's being argued about what by all means or you know what brand x means in terms of the reality of this case we if she in judgment and she's not what this the statute was intended to target which is which are child predators she's not a child predator she made a mistake she has admitted to her offense and she's been convicted but based on the realities of this case i would not say that she poses a risk to other individuals under age individuals in the community thank you thank you your honor so we have i think an absence in the record here what happened in terms of her registration i mean how did she actually register with the state yes she did actually register with the state of arizona she the document you have now in the record which is the condition form that she received from probation it doesn't actually have the condition of sort of registration check marked off so there is some confusion as to what happened in the district court when the district court made no explicit finding that she had to register und condition form doesn't actually have that check marked off but the judgment does and as a result of that confusion in an abundance of caution she did go register and the person who informed her that she had to register as a sex offender was in fact the local county sheriff in arizona where she resides and so we would we would argue that that is going to go to the delegation issue but that is an improper delegation of you think was delegated i'm a little bit confused like what the sheriff said i mean the share of say the federal court because our has ordered you to register so i'm just here to implement that because if so that doesn't seem like a delegation so the court never the court never made any finding that she's a sex offender and never explicitly on the record during sentencing ordered her to register but there is this judgment form that says that says that what this sheriff was using or what was the sure we don't know what the sheriff was using but findings and the record we would submit that this was an impermissible delegation and it wasn't actually the district court when it checkmark that box finding that she's a sex offender i don't really understand i guess what the sheriff has supposed to do so your impression is that the sheriff in arizona is supposed to interpret federal law to decide whether this is categorically or not categorically a success that is what we believe happened in the explicitly say that she is subject to a condition of probation requiring her to register under sora she there's there's nothing in the record that shows that the court actually told her that she had to register and in fact there's circumstantial evidence of a record that indicates the opposite the government made the representation that it could not say one way or another whether or not misty had to register and that if she had to do so that's something that she and her attorney would have to figure out why would why would the government so that  matter of state law your honor sort of registration is a federal duty there is case law that says that it's a federal duty and because it's a federal duty right it's a federal goody but i duty to register in a state that requires a yes it's it is a federal duty to register in the state that requires it but we would still say based on stevens that whether or not she had to register is something that the court had to determine and it was not something that an unelected sheriff determines and why shouldn't we read the check mark on the mandatory condition on the judgment form as a determination it it's not a determination because there's nothing on the record explicitly finding her to be a sex offender or i would say that it's ambiguous the p s r does reference registration but during sentencing the only thing that the court said was her conditions maybe will be similar to the are you arguing for determination whether or not she actually has to register and whether her offense is actually a sex offense under sorta what seems like your categorical approach argument would ask us to hold that it's not right so yes so this is seems you lose on the st point and then it's what do we do if you don't if you if you if you was on the st point what do we do next that's what we're discussing this remain would come in well we would we would ask for a remount on both points we would ask that the court find that confused but if we if we agree with you on the categorical approach would there be anything for the disappoint to do other than to just vacate benes or an obligation to the there would be nothing else for the district court to do other than to make that determination there's no like finding any is no factual determination or anything it would just be an implementation at that point correct but if you lose on that issue then you think there should be a remain anyway there should be a free man anyway because if we lose on the issue  there some so you did have this argument about notice and and so i mean it is there some argue it sounds like you're saying there isn't now but is there something that if she had notice on remand now she could try again to convince the judge not to i and order her to register and so yes we would concede that there would be nothing else for her to argue other than the categorical approach applies and that she should have to register so it seems like the notice argument in your brief sort of is dropping out of my understand that correctly you really are the notice argument is it's challenging because she is just a lot of confusion and what happened in the court below and so we submit that she did not get adequate notice that this condition would be imposed based on the government's representation and that  what that she would have to figure out how with her attorney whether she has to register if the harm of that is going to be completely determined by the answer to the st question because there are either needs to be vacating of the nation or just it's already there and it's correct it seems like there's nothing we can do about this notice problem now correct there's the issue would drop out  honor thank you honore good morning your honour's rouhani representing the united states your honor as i think that you've hit it directly on the head this case comes down to the answering of just one question which is does mr daley have to register as a sex offender as a matter of law and the answer to that question is yes but i want to be clear the answer to that question is not yes because you should just give deference to this court's decision and by and as your owners have noticed in national cable the government's position is not and has never been that you just give deference to the decision because now that it came before the guidelines were put into place you should give deference to that decision you should rely on that decision because it was correctly decided there's a lot so can you explain i'm very confused about the government's position because this this smart guideline is written by the attorney general it's part of the department of justice and you're here on behalf of the department of justice telling us that it is wrong why is that and your honor i'll begin by explaining a little bit about what the smart guidelines are so this market lines when you look on westlaw is like a forty page document and when soren it was passed the attorney general was charged with interpretating a lot of different things with relation and this is just one of the things that was interpreted now i'll note that the attorney general did not say that the categorical approach applies even in the actual condition that  daly is referencing they talk about that it has an element which i think suggests a categorical approach but i'll also note that chevron deference and as it as it sort of stands never says that the court just abdicate its authority and throws its hands in the air just because there is i understand that the usually the agency has regulation it is argues for its own regulation so this is just a very weird situation and if the d o j now thinks that this language and in the smart guidelines is wrong why has why hasn't it been repealed well in your honor i think that there has to go through a comment period and i'll just note that every single court that has considered the issue has said that it's not ambiguous so we don't really ever get to th question my eye and i agree with you it's a really weird situation and it's a real weird world that we live in right now and for me to be standing here and telling you not to follow what my boss's boss his boss says that you should have done but the fact of the matter is if there's no ambiguity you don't ever get to that question and i think that that's what's happening here and i'll just note that every single circuit that house consider this that's because your honor the smart guy lines do a lot of different things it's not just dealing with ambiguity for example the smart guidelines say that song is retroactive that has nothing to do with an ambiguity or lack of ambiguity so you will on each of them and it just happens to be that this commentary that adds to the residual clause that ms daley has has latched herself onto but it's exactly about this question right so i mean the department of justice folk to this question talked about looking at elements and now you're here telling us not to look at the elements correct your honor and i'll note that since since the guidelines or since the smart guidelines were promulgated the the department's position has actually been consistent throughout when we've represented in each of these cases and each of the other circuits that have considered this in that if there's no ambiguity you just simply don't get there that doesn't mean that the attorney general shouldn't have promulgated it that he was charged promulgating guidelines and that's ultimately what happened they went through a comment period and in two thousand and eight those guidelines became effective but if there's no ambiguity the guideline this part of it is just wrong right because it couldn't say elements if there's no ambiguity that we're not supposed to look at i would agree with your honor and to be clear your honor it's not a matter of repealing it the fact of the matter is a matter of law it's just not a political you don't get to it so i think that it's sort of a an exercise in futility to go in and  in the sense that every circuit that's considered it has said we're not going to give deference to it it's not ambiguous we just don't get there i think it's not necessarily a good use of resources to go and repeal a single sentence when every court that's considered it has essentially said that there's no ambiguity to give deference to and your honor i think that i need to explain a little bit about how federal registration works and i think judge gold this goes to your question that you asked my colleague  there's no such thing as a place to do federal sex offender registration the place that federal sex offenders register is in the state that they live in they separately might have a state duty to register because of course states have rules about their sex offenders as well so the comments that and i was a prosecutor in the district court the comments that i made were related to that state sex offender registration and had nothing to do with the federal sex offender registration and if you look at the context of the comments you look at the context of the questions that judge navarro was asking we were all talking about those state duties to register as a sex offender but why would you be talking about that because your honor and so this is a look the thing that's a little bit quirky about this case is typically if you have a let's say child pornography st great sex trafficking case under eighteen united states has to also make those a registerable offense so mrs daly would have to register for this travel violation because she's a federal sex offender wherever she lives any of the fifty states or territories she'd have to actually register there but she might not have to register under the laws of the state if the state is not compliant with the sauna regulations so what she cited in her reply brief that the document about whether arizona was actually complying or not the local sheriff doesn't determine if she has to register as a federal sex offender the local sheriff determines whether her federal conviction requires her to register under the laws of the state of arizona but i'm really confused now because i think what you're saying is everyone understood that she would have a store an obligation as a matter of federal law and if that's true she had to register and i don't understand why it would matter whether also she had is the obligation and your honor it's because it's because she wasn't let me back up part one mr lee was originally charged she was charged with conspiracy to travel for the purposes of transportation transportation for the purposes of prostitution which is a register offense mandated registerable friends as well as the actual sex trafficking a minor the benefit that she got visa be this plea agreement where she got to avoid the ten year mandatory minimums that happen to come with those so it it lists them the travel act violation is not listed there though you know but if there was a federal obligation that everyone knew the court was about to apply it doesn't matter right she has to register as a matter of federal law she has to  correct she has to register as a matter of federal law but the question comes down to subsequently in five years ten years if she ultimately fails to register can the state prosecute her or can only the federal government prosecutor and that's what that  notice was intended to give her notice of is if you don't register you're not only subjecting yourself to federal prosecution but very likely also state prosecution but i can't make a representation one way or another how the state is going to interpret this my notes indicate that the box next to that condition was checked by the district court according to really these excerpts of record one  forty moore's excerpts of record three i think that's the judgment form and your honor i think i can i think i can explain this and i think that this is part of the reason that i couldn't stick to late to go i've never seen that document before and i'll just know as a matter of practice in the district of nevada the probation officer is sort of filling it out as we go along during sentencing so the district court doesn't check it the government doesn't check it the probation officer sort of filling it out so the p s r had that condition checked in the st version of the p s r the nd version of the p s r had that mandatory condition checked and the judgment that was ultimately signed by judge navarro also had that condition changing so that is what i've been see but in the sense of it has no bearing one way or the other what the probation officer may or may not probation to the best of my knowledge mistery has not had any violations of the conditions of her supervision but your honor i think going to your question to my colleague about whether there was any indication that maybe it might have been judge friedland's question about whether there's any indication that ms daly might engage in this behavior again judge navarro during sentencing specifically talks about how ms daley convinced her best friend to prostitute to benefit both  as well as mr moore so this was not an isolated incident although judge navarro did gave her a huge boon in giving her probation especially considering that the government was asking for a custodial sentence on top of the fact that received a huge consideration by the fact that she had no ten year mandatory minimum that she was looking at ms daly did cause another individual to prostitute that person happened to be an adult and not was in arizona but as also reflected agreement the minor victim in this case was not the only person that mr daly brought to las vegas to prostitute she brought another adult female to two with her to prostitute so i would submit your honor that this is not an isolated incident where she's not a sexual predator that was envisioned by the statute or by congress passing the statute of broadly as possible to ensnare as many offenders against children as they could with the adult who was convinced to have been a basis for the store  registration not under the terms of this plea agreement your honor because there's no indication in the plea agreement as to solicitation and prostitution which i think arguably could go to that point but i think that on this record that would not be a sufficient basis for registration and your honors unless you have any other questions for me i'm happy to submit their thank you no question to her no questions no thank you i would just ask that you dismiss this petition because she does have to register as a matter of law  behavior which the district court found and she hasn't had any kind of repeat offense and so she just doesn't fall within the scope of what sort out was intended to target but she's not a child sex predator and i would just like to point out that in the record mrs daly didn't know that her that was under age and so she didn't target her as a child to use her in prostitution and so she's just as she it's just this is a one off offense and it seems over like a very harsh punishment we would just say that it it just as a policy matter it's it's unfair and then what is the guilty plea admit to knowing that this was a minor no so that's not an element  and that's why we would submit that you need that element to fall within the scope of the residual cause otherwise the residual clause is just bringing in all kinds of offenses that may a minor is defined as someone who has not yet reached the age of eighteen you have the potential of that offense being swept into the residual clause if you take a circumstance specific approach  and so that's why we think that it's reasonable construction for the attorney general to have of the residual clause to require that there'd to be an element that it is against a minor