please the court then glassman on behalf of the united states like to reserve for minutes for rebuttal at issue in this appeal is the proper interpretation of eighteen u s code section twenty two fifty two b two which sets forth the penalties for someone who's convicted of possessing child pornography it's zero to ten years in prison but if you are a recidivist sex offender the penalties are ten to twenty years in prison and the statute specifies which prior convictions count and those are those that are under a host of different federal laws and also as particularly relevant in this case those under the laws of any state relating to aggravated sexual abuse sexual abuse or piece of sexual conduct involving a minor award the government's contention is that the phrase that follows abusive sexual conduct that is involving a minor award modifies and limits only of sexual conduct it's nearest the antecedent and not the other two kinds of state crimes that are listed by twenty two fifty two b two now that follows principally from the grammar of the text and that grammar is then confirmed by the rest of the statutes context let me explain that a little bit i think at this point we actually pretty much all agree that the default way would read aggravated sexual abuse comma sexual abuse comma and abuse of sexual conduct involving a minor award under the so called rule of last antecedent which is another way of saying regular english usage that involving a minor award only modifies the nearest antecedent doesn't reach back to the other two things that are separated out by commas i think we all agree that that's the presumption or default rule and so the only question then texturally is or they're really good reasons not to follow the grammar because as the mateen points out and as the united states agrees it is possible under some circumstances to rebut that presumption but there aren't any such circumstances here in fact the contrary the united states contention is that the context of the remainder of twenty two fifty t b two confirms that all prior convictions that are triggering predicates do not require the involvement of a minor ward and the clearest way to see that is to look at the specified federal predicate convictions which do not uniformly involve a minor war there are plenty that involve it can have adult victims only so we have the text we have the grammar we have the presumption in the default way of reading it which is as it's written and then we have the context of the rest of the statute which confirms that that is the appropriate way to read the statute now on top of all that were for those reasons you have every circuit court that has specifically considered this question coming down the way the united states is advocating here every circuit that has specifically looked at it has said that in fact involving a minor award in that triad of state crimes modifies and limits only abuse of sexual conduct the pose that you're right about that crime if we win on fact initial statutory interpretive question so that a prior conviction under state law relating to sexual abuse for example does not have to involve a minor award and then all that we have to show is that prior conviction which was for violation of ohio's gross sexual imposition statute is a conviction that is relating to sexual  abuse our contention as laid out in the brief is that every violation of ohio's crucis sexual imposition statute is in fact relating to sexual abuse because if you look at ohio statute which is the heart revised code twenty nine  seven point zero five every section is explicit it uses the word sexual they're all every violation is sexual and every violation involves the misuse or mistreatment of the victim in other words a sexual battery of the victim without the victim's consent for one way or another whether it's because the person is victimized by force by threat because they're way too young to consent because their judgment is impaired or what not so under the ordinary common meaning of abuse that's abuse well the ohio statute proscribes i'm saying yes the the federal term and twenty two fifty two b two sexual abuse is not defined section twenty two fifty six does provide definitions for some of the terms in chapter one ten sexual abuse is not among those terms neither is aggravated sexual abuse or abuse of sexual conduct involving a minor so how do we understand those terms that well the normal rule is that for undefined terms in a statute you construe them according to their ordinary common meaning assuming you're correct we're looking at the language aggravated sexual abuse sexual abuse right exactly but conduct not necessarily so unless it's abusive well no no that's a no no that's my point so i think that it's a abuse of sexual conduct is broader  the you're not touching the minor at all you're not i don't know if that would be necessary people would normally say that that's a buzy in the minor but it's truly conduct meaning it's behavior it's sexual and i think it's abusive so i think that that would be an example so you're really trying to get an understanding of these terms which are not defined as you point out so abusive sexual conduct which is in the federal statute that we're construing you're saying would include a lewd act performed in front of a person in the case of a minor that would be abusive sexual but you're saying that that would not constitute sexual abuse that right to sexual abuse is a smaller category of things than abusive sexual conduct and yet that's how i think of it yes mr glassman it's my understanding the thrust of your petition for umbach review was the statutory construction argument that the district court erred in that and  i tend to agree with you but the district court never ruled that the secondary question of what is sexual abuse and i recognize that this court could rule on that because it's an issue of law but it would in your view would be more prudent for us to remain under the district court for ruling in the first instance on this issue that we have no ruling from from the district court and they could from there i have very little  add to the way that you frame the question judge griffin you certainly could rule on the question here it is a matter of law i mean i think if the courts are willing to engage on the subject it might as well decide the question here because it is a question of law and there's no suggestion that there's anything else that the district court could come up with that these judges couldn't so from the united states perspective i would say to go ahead and conclude in light with in line with all of the authority that  we've cited that this prior conviction for gross sexual abuse is indeed a conviction relating to sexual abuse however as you say you don't have to you could resolve only the statutory interpretive question the parallel federal provisions is because of the relating language or do you mean the reason why i do not think that the undefined terms in chapter one ten are defined by reference to the terms terms in chapter one and on a is that the question judge white i think it is i mean you're relying on the fact that you have in numerated federal offenses that do not pertain to minors oh i'm sorry that's more yes those are actually two different points i thought you were asking a different question no i'm asking since you're relying on the why do you not also referred to those specific offenses to see whether the state offenses or parallel offenses are the same why don't you look to the language of those statues to understand the requisite condom for a number of reasons i don't think that's the best way to do it i'd like to elaborate why not although i want to preface my elaboration by saying that i think you still could and you get the same result with the relating to that's that's the backup point but i think if the united states is trying to give this court its best understanding of how to interpret those words the problem is the prior the numerated federal predicates are not just chapter one on one and there's a number of different chapters one on a one ten one seventeen seventy one article one twenty of the uniform code of military justice which also by the way has used sexual conduct and sexual contact and sexual acts in its discussion so there is no clear link or reason in the text of twenty two fifty two b two to define the terms with reference to chapter one and one a so and there law where the conduct would have been a violation of chapter one and so it doesn't say anything like that it does have a definition section twenty two fifty six that does not refer back to one and in fact the definitions in twenty to fifty six that are there includes a definition of minor which is just anybody under eighteen which is not consistent with how minor is used in chapter one or nine and where the minor has to be under sixteen so i also correct in your argument though mr glassman that that if we were to follow the seven circuit approach which looks to twenty two forty two and other federal law you have to convince us to use your relating to broadening argument in order for this gross sexual imposition charge to meet the definition of sexual abuse yes if we follow the fourth fifth eight  divisible but we can use the modify get a grip or my right about that i would agree with everything up until the very last part of judgment i don't think if you're following the approach that i'm suggesting here the majority approach of considering those terms i don't think that you have to use the modified categorical approach at all because every is a divisible sacked statute and every section counts of sexual abuse but this is a change from your position in the more arguments then we're making here you're more refined here i think so yeah i think so you know we tend to take a closer look at this one hour before the on court then in a single sentence a memo if i could get back to  the concern that i had which i was trying to get to i'm looking at the difference between sexual abuse in the federal statute abuse of sexual conduct in the most concern that i have the statute in ohio that we're dealing with right and i don't think it is because if we're talking about sexual abuse as ordinarily understood then a sexual battery whether you have to actually penetrate the victim or you know use certain particular body parts not through or not through clothing i don't think the ordinary understanding of sexual abuse makes a distinction between whether or not the victim is actually penetrated or not now it's true that we're about sexual contact for a high on thing but but there are a lot states defined as all different ways and use all different terminologies and i think as we try to explain in the brief the the ninth circuit decision that was looking at the montana statute is the montana statute in scenarios is the same as ohio's grew sexual imposition the same kind of touching i believe that the south carolina statute that was at issue in spen circuit case again the same so i and those courts said that it was sexual abuse yes under the federal statute that's correct that's a what are some sexual crimes that wouldn't actually abusing the minor but i think that's conduct it's abusive and it's sexual if it's involving a minor and in fact there are lots of state laws that prohibit importuning and there are there is a federal law that prohibits  for sex or even transporting a minor across boundaries with the intent that you know age and sex so those would be examples judge or counsel you seem to be a great pains to distinguish between sexual abuse and abuse of sexual conduct is that i assume that's one to give them different meanings so that so the so there won't be the statute has surplusage in it but it seems as though almost by definition they're surplusage because isn't if we look at the first two of the three isn't all aggravated sexual abuse also sexual abuse i mean oh yeah i've you mean you have to concede that there is some surplusage for exactly that reason i saw so that that leaves me with the question why why do we have to sort of like angels on the head of a pin the say the abuse of sexual conduct is not sexual abuse what's the answer if it is sexual abuse is that all that  the statute were involving a minor award modifies everything then that would render everything's for passage and i'm saying that the way we're proposing to read it there's less surplusage i mean as you said i just can't figure out any way that something could be aggregated you could say the greater said is our group or the greatest set is sexual abuse and then there's a subset that includes our related sexual abuse and there's a subset that includes sexual abuse involving a minor and there's two you know there's three things too which are a subset of the third and i said i suppose that is a permissible way to read it yet rogers i don't think i see it is not made doesn't make much difference far as you're concerned what i think that's a bit more of an aggressive argument than we're proposing i think we're trying the more conservative approach so in the government's view the machines prior conviction for gross sexual imposition on sexual abuse he is a recidivist sex offender and he should be sentenced as such the government asked the court to send this case back for research and seen under the right statutory scheme and under the correct guidelines range thank you good afternoon your honour's me please the court i'm here representing the apple e mr mateen i think that we're starting from the wrong starting point and if we start from the correct starting point in this case we never get to the issue of the rule of last in a scene and i think the court's already already keyed in on this a little bit which is the government needs to prove to you that the prior g s saya fence was either aggravated sexual abuse or sexual abuse if they can prove that we don't need to move forward with any of the rest of the government's argument there's compelling reasons why ohio's g s i statute is in fact abusive sexual conduct under the third prong under twenty two fifty two and there's both statutory reasons but there's also case law reasoning and that is that the to leo case which i cited due to you all in my case in the in my brief that the tilia case made a finding that ohio's g s i statute was almost verbatim in line with the federal standard under the twenty to forty series for abusive sexual conduct and so the court one was making its finding and until you know made the finding that because it was abusive sexual conduct in that case and because there was a minor involved that therefore qualified and as a as an in hands in statute case address whether it could be sexual abuse it debt it did not but it made but it made the finding that it was in fact under the third prong the ohio statute and the reason that they did so was because not when you only make one point i mean based on the first half hour they're really struggling with what the lines are between these two points so i don't know what it means to i have a victory that it fits under one but i absolutely will so if we don't know where the lines are there's two ways that we can go with this right and one is that the government says let's not use the statutory definitions that are provided by congress in the twenty to forty series let's instead use the common everyday common sense meaning of aggravated sexual abuse sexual business of sexual conduct and as judge rogers pointed out how when we use those those commonsense terms where do we draw the line we can't draw the line but congress clearly did draw definitive lines in the twenty to forty series when it defined the federal crimes of aggravated sexual abuse sexual abuse and abuse of sexual conduct and the parameters that congress choose to draw or that for abuse of sexual conduct or for aggravated sexual abuse and sexual abuse there needs to be a sexual act point blank on any of those offenses there needs to be a sexual act for the abus sexual conduct there needs to be sexual contact and the court to find those under twenty to forty six is two separate things a sexual act under the federal statute means a  disagree with with that presumption and the and the reason is that obviously congress did not create the terms aggravated sexual abuse sexual abuse and abuse of sexual conduct entirely out of whole cloth when it got to the twenty to fifty series especially asked after it already defined them and defined them as federal convictions under the twenty to forty series and this judge white points out if we're going to take that list and then say that that list corresponds in terms of the term inning whether or not the other minor award counts if we're going to draw the analogy between the federal statute and the state statutes there why wouldn't we assume that congress was drawing the same analogy when it used those exact terms to define those state statutes that fall under this recidivism statute and so when you take a look at the at the actual elements that are required for the federal statute it's clear that the conduct that's prescribed for abuse aggravated sexual abuse and sexual abuse is far beyond what's captured under high was g s i statute which is the reason that the to leo court got to the where it did because they took a look at the the ohio statutes very broad and it goes beyond and i disagree with with my posing counsel that it falls in line with the of the nine to four circuit because the ohio statute is very broad in terms of side of sexual contact now how do you decide if you look at the at the way they defined their sexual offenses they have basically two broad categories one is sexual conduct and want to sexual contact sexual conduct if you take a look at involved it involves penetration involves the touching of genitalia those those type matters it actually corresponds quite well with it so when you take that and say that that corresponds with the sexual abuse and then you you utilize the abuse of sexual contact sexual conduct and there's a line it's clear that at least under ohio law we don't know about other jurisdictions but under ohio law it's clear that the highest yes i statute actually points to abuse of sexual conduct if in it applies which whichever one of the subsections that we're talking about here because we don't know which subsection that mr machine was convicted under we only know that it's either one two three or five but it's not even using sheppard documents it's not any further defined in this case so judge griffen it could be that that the best route is to allow the district court to at least make that determination because it was obviously presented to the district court in the district court in my opinion got the cart before the horse on this thing because i don't think you can i don't think you have to make a determination as to what the rule of law whether the rule of last  applies until you decide which subject section it's under because if it isn't or subsection three as we contend it is anything that this court would decide as to whether the of a minor word applying to the first two would be nothing more than dictum it would be really good dicta because this is a non bank court but it wouldn't be pertinent to the holding of this case and therefore it would be and unless there are any other questions i've got plenty of time left and i'm happy to take them you will get the award for making up for all of the overage that has gone before you well i'd like more than that in just two points just to clarify my colleague mentioned a couple times the titles of the chapter one or nine a offenses chap section twenty two forty four is actually not titled abusive sexual conduct its title abus sexual contact so those are different words and the titles do not line up and then secondly to the extent that there's any doubt or confusion on the point about oh is it sexual contact does that line up with a federal offense well there's no dispute that in fact eighteen us code section twenty two forty four which is abuse of sexual contact essentially mirrors the ohio group sexual imposition statute there is no doubt it's explicit that one in nine a including section twenty two forty four is a valid predicate so there is no reason to conclude that the state analog would not also be a valid predicate especially when it fits with the language if you have conduct if if you have conduct that would be abuse of sexual conduct under the federal statute but it doesn't involve a minor and that results in a conviction under qualify or not if you have only abusive sexual conduct not involving a minor that would not qualify ok but aren't there are situations where you could have what constitutes abusive sexual conduct with an adult and still be convicted of one of these ohio offenses no i don't think so our contention is that every section of the ohio group's sexual imposition statute is sexual abuse within the meaning of twenty two fifty two b two is the federal phrase sexual abuse always requires some contact i think so i think so to the best of my knowledge i'm just thinking about various different places i mean it occurs throughout the united states code and it's not always defined the same way it's in title eighteen in a number of places and it's also in title ten the uniform code of military justice is not always defined the same way but it does always i think involved actual touching the presumably we could try to see whether we could find any case where a federal sexual abuse crime did not involve touching and if we didn't find any we would say you're right i'm not sure that i follow that question i was simply amplifying that you said you thought you'd always involved touching for a federal sexual abuse crime and i was saying we could simply canvass sexual abuse federal convictions and see if we see any that don't involve touching your supposition or your submission is we're not going to find any and you may be right of this question answered and well so far as we're talking about a federal crime denominated sexual abuse yes that's right i just want to make clear the distinction between that and sexual abuse as set forth in twenty two fifty two b to which i don't know if i understand yes y ok but or you also say that all of the ohio offenses would qualify eighteen us code twenty two fifty two b do you think your judgment was not necessarily in every case the federal sexual absolutely no right absolutely because sexual abuse means different things in different places i'm just talking about twenty to fifty to be two which sets forth the penalties for receipt of a sex offenders who possess child pornography and what is the minimal action that is required to be that you will abuse as opposed to sexual well my understanding or reading of the difference between those terms what i'm proposing is that sexual abuse which by the way is broken out specifically under abuse in black's law dictionary as sexual abuse is a specific thing  misuse or mistreatment of somebody and abusive sexual conduct does not necessarily involve misuse or mistreatment of somebody it just involves behavior that it can you give me can you tell me what is the minimal co oh i would say that it's some sort of sexual battery you have to touch the person i think so well no actually actually yes for sexual abuse but actually let me qualify that immediately by saying that the statute actually says relating to so i wouldn't want to give up something that would be for example an attempt to do that i think would probably be relating to it being someone to sure yes something like that conspiracy to do and attempt to do it something like that yes this gets us back to your general  yeah i mean i guess i don't know at the far margins it's hard for me to hypothesize otherwise but that's my understanding of the core category yes and what's your simple response to the entirety of your particular words from one statute to another where they're not defined since according to my colleague's point the ohio use of the word conduct means actually a sexual act under chapter one and one anyway so we these clearly don't match up and you have to make a judgment as to what is the meaning of the undefined federal terms and my follow up point is that everybody agrees that eighteen us code twenty two forty four which is pretty much the same thing as ohio grew sexual imposition is itself a valid predicate there's no dispute about that and so there's no reason that the state analog ought to be treated differently when you're saying that we should treat this provision this is this this is the same analysis so we do we do look at definitions yes now it's just include just about everything that i say i use i suppose that there could be an argument that you don't but you don't follow that in that are that you don't follow elements of cetera that's what was rejected in mccutcheon in the grattan we're not making that argument here i think the categorical approach is just fine thank you cou