today we have a very interesting docket but we also have kind of traffic rules and they're very simple to follow most from here probably aware we would appreciate your surfing the  yellow light comes on when you have two minutes in your presentation when the red light comes on we ask you to conclude your remarks as quickly as possible we also appreciate record citations because we will not  have become acquainted with the entire record before oral argument let me say i think that i think that's all i need to say the first case of the morning is eighteen to a six to zero united states versus brown and we'll hear from  please the court t v shepard for mr warren brown there are two issues in this case one involves the guidelines calculations for supervised release but since the government has agreed on all four  address that issue today the primary contested issue is whether mr brown's military conviction for sexual assault qualifies as a tear three or a tear one offense under soren and the sentencing guidelines  parties agree that the only way his military conviction qualifies as a tier three offense is if it's comparable to federal sexual abuse as described in eighteen u s c section twenty two forty two the two statutes are not comparable because twenty two forty two requires knowledge as to the victim's incapacitation but the military conviction requires only negligence twenty two forty two is knowledge requirement is clear from the text and structure of the statute as well as supreme court precedent on the first page of the visual aid i've provided to the court the section twenty two forty two is at the top and i have highlighted the word knowingly to illustrate how knowingly proceeds all of the substantive elements that follow and so is a matter of statutory construction the government must prove not only the defendant knowingly engaged in a sexual act but also that the defendant knew that the victim is incapacitated isn't it true though the fifth circuit hasn't squarely ruled on this correct the fifth circuit there's no fifth circuit case that reaches this conclusion but this court has found in other cases such as  argument for applying knowingly to all the elements but i will go up also point out that the pattern jury charges are a little ambivalent about the up so the pattern jury instruction doesn't clue to comment that discusses what it call circuit split on the issue but i would point out that there isn't a true circuit split in the sense of reason decisions on both sides there are other pattern jury instructions that do not include knowingly as part of the element of  an issue that doesn't have an obvious answer i think that the answer might not be obvious because it's the categorical approach and there's a many steps that the court has to take to get to the conclusion but when the court applies excitement video because there's a prep a zisha so you have knowingly gauges or sexual activity with with another person everyone agrees knowingly applies to all of that but then it there's a preppers issue if that other person is the statute it's just the jurisdictional element that appears before knowingly and then all of the substantive elements of here after knowingly i do have the excitement of video statute on the second page of the visual aid at the bottom and in that case knowingly  actually after though subsection one instead of before the subsection one like we have in the twenty two forty two statute and the supreme court still found that knowingly applied to subsections a and b despite it not  knowingly engages in fraud and if the victim is a certain age you would say knowingly applies to even the victim's age perhaps but i do think sometimes supreme court precedent there's an exception for age i would also point out that fraud by itself would be unlawful conduct but here if knowingly doesn't extend to the victim's incapacitation then it is sexual contact or sexual activity between adults which is not inherently illegal the way that fraud would be so that is where we the supreme court does comment on that a number of times in those cases that i've cited where if the mens rea is what differentiates lawful from unlawful conduct then that is where the presumption applies i would also point out that the maximum penalty for the sexual abuse statute is life in prison and the supreme court in staples found that that was a factor that was important to concluding that the mens rea a presumption does apply in staples the maximum sentence was ten years and also in that case the statute was actually silent as to mens rea and the supreme court into the statute in part because of this severe penalty and as far as the descent in group i think that the descent lies in part on some fairly subtle textual coups and i would point out that in neighboring statutes that were enacted at the same time as twenty two forty two congress expressly dispensed with mens rea as to the victim's age in twenty two forty one and twenty two forty three congress included a subsection that said the government does not need to prove that the defendant knew of the victim's age or of the difference between the victim and the defendant but here in twenty two forty two and acted at the same time there is no such express rejection did you see the ninth circuit issued an opinion last month a divided to want to pinion that held a similar statute twenty two forty four did not have the the knowingly did not extend to the defendants by the victim permission you did use very familiar with that yes doesn't that leave because what you what you just said would have been true they are that it didn't have that age what the language saying knowingly does not apply to these additional elements but yet the ninth circuit again divided opinion showing these are difficult issues said knowingly did not apply across the board correct twenty to forty four has a two year statutory maximum as opposed to a life statutory maximum and that was one of the points that the concurring opinion in that case made and even the majority opinion that case made the point that this might be a different issue we might reach a different result if we were dealing with a statute that had life in prison but because it was two years the court quite comfortable interpreting the statute the way that it did i still don't understand why mens rea a statute is a statute men tradesmen i don't understand why it contingent on the length of rule is that there is a mens rea and that applies in criminal statutes and so unless there's a clear congressional intent to dispense with that default rule then the supreme court in many cases has applied that default rule and i think that in staples for example the court focused on the length of the maximum potential term of incarceration to indicate that congress would not have intended to dispense with this default rule of mens rea when the penalty is so severe or perhaps put another way congress needs to speak a lot more clearly if congress is going to dispense of the mens rea when the stakes are that high and as far as the plainness of the air i would also point the court to decisions in the marrow keen case crews and silver decoy use in those three cases there were no fifth circuit cases on point in the court still found plain errors in marrow keen there was arguably an unpublished fifth circuit case that supported the government's position and the court found a plane there based on a north carolina statute the guidelines and a four circuit case indian cruise no court had ever addressed whether exploiting munitions defense articles was an aggravated felony but the court still found a error based on the plain language of the statute and even disagreed with the fourth circuit case where we do it every day in sentencing and only yes there are a lot of these complicated cases with categor approach unfortunately and sometimes the errors are not noticed in the district court unfortunately and when the silver dollar scase the court recognized that was an issue of first impression but still found a plain air based on other circuits decisions and in that case the court also relied on a congressional intent argument where other federal benefits statutes had specifically listed possession with intent to distribute as a disqualifying offense but because the statute didn't express the list it then there they found the court found that there was not that same intent and that somewhere this case with the argument about twenty two forty one and twenty two what would  and i assumed that if we were to come out the other way he'd be out immediately we would go back to the sentencing in the district court would decide with the new guidelines range of ten to sixteen months whether to impose time on some other sentence eighteen months that's what i can remember so it was eighteen to twenty four an outstanding six and otherwise it would be ten to sixteen that's correct ok the court has no further questions i've said sometimes pretty straightforward thank you thank you case and as this court is well aware it is the defendant's burden to show plain air and it is intended to be reserved for exceptional circumstances in this case the defendant is challenging the tier three sex offender status and  requires only that the predicate oftens in this case the military often speak comparable and what that means is it doesn't have to be identical and it can be slightly broader and so the  government's response is really twofold in this case with regard to that first is the legislative history of the military statute which was passed by the same legislature the united states congress supports that this is a comparable statute and secondly that the public defender is adopting a very rigid statutory construction which is exactly what justice alito warned about in his concurrence in flora's which is the main case that they are citing the legislative history of the military statute says that it is their purpose is to clearly define the often says of rape sexual assault and sexual misconduct and to pattern the elements of the often says after the federal  what's different from flora's is flora specifically said that it was confusing the legislative history didn't really weigh for the government or for the defendant in that case and in this case we have specific legislative history that the same body that passed both often flexibility these often says don't have to fit in a box and fit perfectly that's definitely not the law and when you look at the chart that the public defender gave us i see a lot of things that are very much the same knowingly committing a sex act they both include the mental and physical impairment aspects and quite frankly we are supposed to have a common sensical approach in the spirit of the laws the same it's to protect people that have had this crime committed upon them they were unable to consent due to either a mental impairment or a physical issue i don't think the rigid construction of this one word takes away from the spirit of the law and what the law was intended to be the one where it is you mean knowingly yes ma'am will that's a pretty significant word in criminal jurisprudence it is and i think if you look back at it there's been actually a lot of case on the military courts recently with regard to the statute and previously bit yes and so the military was what some what's the range of punishment for the sufficient on the military yes ma'am actually i don't know that offhand jarana i do know he got eighty six months and was charged with three cases well i was going to say if you say they're comparable you would mind expect that the range in the military is somewhere in the range of under twenty to forty who are well i will tell you that's what the legislative history shows is that every time there's a change in the federal law in terms of statue of limitations things being taken off the law when lawrence v texas came out and struck down the sodomy law the military code immediately takes that off you see them as soon as the federal often says change their such limitation the military strike tries to stay in step with that the legislative history is enormous to eight hundred documents a statute was passed in one thousand nine hundred two but on the other hand i mean you can clearly see why particularly in the military should have known is is a very important phrase in expanding criminal liability there i think it's an important phrase for anyone it is now been found to be negligence it's a two part previous to about two weeks ago  military courts of appeals are treating it as reckless and it still mc donalds came down last about two weeks ago from the u s court of appeals for armed forces in d c they were looking at another statute that was general inten but then looked at the statute and says it does have both elements the knowingly and the negligence and i guess you know this all goes to our second issue and that these are hotly contested issues but it does back chuck into our first issue that the really i'm just i'm new to this case and have been reading a lot of the military cases and those that's where i'm getting that the knowing and negligence are very recent cases from the military courts of appeals and so i think this just goes back to the second prong that these issues are public policy there and if we were to say that to go with the opinions and floors and air we're defeating congress the stated purpose which is actually to expand the ability of the military in the united states to file the sexual assault cases and so i think that's why you see the difference is excitement video on flores both had they gone with the government's argument it would have led to what they call the absurd result and that means that that technically would have been a crime and that's what price highlights that's not the case here and for our purposes it's it's negligible the difference we're saying it's comparable i'm saying it's what jerry what do you do with the fact that these surrounding statutes basically the statutory rape statutes to age your honor i find those those statutes are very interesting and i think if you look back they mirror what a lot of the states do that's a strict liability the government doesn't have to prove age and the public defender correctly pointed out age is a critical issue in this case as it's a critical element twelve year old fourteen year old when she get to seventeen eighteen and i don't think that that analysis is necessarily comparable this we're talking about a subset of showing how someone is incapable of giving consent and the age is very different and so i don't know if those cases are exactly on par or night i don't think that we disagree with those rulings that that the court was saying to say excellent point and then you have the the counter argument to that that they originally put it in and they possibly took it out thinking it was clear and sure there's a joke we can sort about congress trying to be clear and so i think there's arguments both ways and so i think that's again on the second prong what we can say it isn't clear but what i can tell you is doing research on the military side it is clear that the legislative history of that statute is that it is supposed to be on par with  and let me ask you a dumb question is it possible to engage in a sexual act with another person not knowingly of the defendant  so knowingly has to bear some weight and yes therefore it most reasonably bears weight as to the nature of the person on whom the sexual act is performed  and i would never stand up here and say that any of these the sex act is that need committed so i mean i'm just looking at this i thought through the the lens that we've been required to the categorical approach and so i think the best argument is to knowingly has got to refer to the nature of the victim's capacity but in the military code there's definitely both u that there congress made a shift to focus no longer focusing on what the defendant knew about the victim but focusing on the victim and that's why some statutes don't even have them knowing that they should have known and you see that in the policy descent it's more important than the defendant's knowledge and that's in bruges talking about the legislative history and so it's not taking away from the knowing intent to commit the sex act it's just saying the additional element about the consent  as you will and so i think it just makes it not quite as strong again and we're in an area that's not quite so clear but i don't think it necessarily prevents us from saying these are comparable statutes  there's a question to be made whether you know the mental state by adding the negligence takes it out of the room but i would point this court to its own cases and coleman and young and coleman was similar and certain in terms of a state statute that had the language of intent to abuse in this court found it was analogous to an aggressive in a tent and so you know i think we have to be specific on each case we don't take the general rule from flora's i think that we're seeing a lot of cases say look specifically legislative history is very important as well as studs to reconstruction but together those two things typically just to that conclusion and in this case i think at minimum the government is asking and like it has shown that there is no plane there because it's clearly up to reasonable debate and secondly that we have this specific plain language from the united states congress that passed both statute saying we want these elements of the often to mirror the federal statute and a lot of just a couple of points under the government's reading of twenty two forty two there would be no mens rea out as to the victims and compact incapacitation and so a defendant would be subject to up to life in prison based on strict liability for engaging in knowing sexual activity with an adult who is incapacitated even if the defendant genuinely believed that the victim was capable of consenting or reasonably believed that the victim was capable of consenting which actually imposes a higher standard of responsibility on the general public than in the military statute with requires at least negligence as far as the question about the punishment for the military conviction i believe the statute says that the court  go on bonk on obvious questions so this a circuit goes on bond not only do they go on bond then they divide i think it was six five maybe six i think the six five was devoted as close as the vote can be i just have trouble getting coleman is an unpublished decision after that case and young the court made it clear that the categorical approach doesn't apply so i'm not sure that that slightly broader standard survives young but there's nothing slight about the difference between knowledge and negligence so even if that is