you god for once again i'm going to start off by addressing the procedural default issue but i promise you this is not just going to be a redo of what i said in the previous argument and the reason is that the more i've thought about this issue the more i think that this is really kind of a non issue in this case basically the government is arguing that mr loft in defaulted an issue that he never attempted to raise in mr loft ins initial petition and in his initial supporting brief he never made any independent argument that his nine hundred eighty eight conviction for delivery of cannabis was a serious drug offense frankly it never occurred to mr loft and that anybody would consider that that was a serious drug offense i think it's interesting to no that the government has never argued that this is a serious drug offense and that's because the government as we have has read the statute the statute that was available and undoubtedly would have been read by everyone concerned with mr loft and initial sentencing anybody taking even a cursory look at the illinois controlled substances substance statute would have seen that that crime was punishable by a maximum of three years in prison therefore it could not possibly qualify as a serious drug offense because it was not punishable by ten years or more in prison  i think everyone involved in that case would have known that and that's why it just wasn't an issue it just wasn't even brought up it just never occurred to anyone that that this could be considered a serious drug we only addressed the issue for the first time in our reply brief at the district court level because the government brought it up as a kind of an argument concerning whether or not lost in was prejudice the the johnson violations that we were alleging now if if it is a proper thing for the government to bring up if it is a proper argument our position is that the government waive this argument by not raising it at the district court level at the district court level the government was trying to say that we had conceded this issue when and  in fairness to the government there was a phrase in our initial brief that was perhaps not as artfully worded as it should have been you know we should have said that the the the pre sentence report  not an appropriate case for the court to raise this issue sue a spontaneous as has been done in some other cases because it's it's obvious that the government made an election at the time of the original briefing in this case to raise this as a concession issue rather than a procedural default issue and the also in case that we've cited in our briefs i think indicates perhaps why the government didn't do and that's because at the time there was a department of justice policy that basically said if you think a defendant has a an otherwise potentially meritorious claim the government should waive procedural default arguments and i can't read into the government's mind you know why they raised a particular argument as opposed to another one but i i i submit that that policy was out there at the time i think we can safely assume that that policy has changed since i'd like to turn to i think the central issue in this case which is whether or not illinois aggravated criminal sexual abuse is a violent felony under the force clause here again this is not a case where i think it makes a great deal of difference whether we apply the categorical or the modified categorical approach because i think the parties are essentially in agreement as which alternative of the statute the defendant was convicted of he was convicted under an illinois statute that requires in order to obtain a conviction that the state prove beyond a reasonable doubt that the perpetrator was seventeen years of age or older that the perpetrator in gauged in an act of sexual conduct and that the victim was under thirteen years of age now sexual conduct is defined under in  r illinois law fairly broadly it includes any intentional or knowing touching or fondling by the victim or the accused either directly or through clothing of the sex organs anus breast of the victim or the accused or any part of the body of a child under thirteen years of age or any transfer of semen by the accused and all of the foregoing have to be done for the purpose of sexual arousal of the victim or the accused it is clear from illinois case law that penetration is not  coltan case cited in the brief states that for purposes of this statute penetration is irrelevant the case also cited in the brief mentions that penetration is not required under the egg criminal sexual abuse statute although it is required under the egger voted criminal sexual assaults fach you and in law often zone case the court rejected his conviction for aggravated criminal sexual assault because the evidence was only that he placed his finger on the vagina of the victim there was no evidence and they said that is not sufficient to constitute penetration that's why his convictions were reversed on appeal and remained and that's why he then was able to enter a plea to the lesser charge of aggravated criminal sexual abuse this offense because of the way it is defined under illinois law can be committed without the requisite degree of physical force against the person of another that is required under the first johnson decision and that requires violent force capable of causing physical pain or injury to another person so i think it's an obvious from the the definition of criminal sexual conduct that many acts can occur under that statute which do not require that type of violent force now mr loft own case and i think other cases mentioned in the brief a stablish a realistic probability that people can be and are convicted of offenses involving a less than violent force if you look at the  talks about that it's possible for touching to occur accidentally or unintentionally in people versus newbie o the defendant was prosecuted because he there was contact between the back of his victim and the defendant's a sexual organs there is i want to point out a substantial circuit split on this question of whether defendant should have to make this reasonable probability showing in the first place the first third six ninth tenth and eleventh circuits all aligned accordance with the defendant's position i think now the fifth circuit has joined the a circuit in taking a contrary position i think i think it's also inconsistent with fundamental rules of statutory interpretation such as starting off with the plain meaning of the statute and the canon against finding language in a statute to be  surplusage i think all you have to do here is look at the statute the statute clearly reaches conduct that does not require the use of or threatened use of violent force because the statute says  we're asking the court to affirm judge garvey chief judge jarvis decision to deny the defendant section twenty section twenty two fifty five petition filed under johnson i know that mr whalen didn't argue that the two aggravated battery convictions that he was convicted of on two separate occasions are not crimes of violence or violent felonies under the are career criminal act he makes that argument in his brief and he made that argument in the twenty two fifty five but as the court if it is aware of the seventh circuit is made quite clear after numerous reviews of the aggravated battery statute that it's a divisible statute and under the prong that requires causing bodily injury it clearly establishes a crime of violence or a violent felony under the on career criminal act and we're standing on that line of decisions by the seventh circuit obviously they have a little bit more experience with it since it's their home territory but also because they've argued articulated quite clearly why it's divisible and that intentionally causing great bodily injury which is what mr lofton did in his two prior aggravated battery convictions by kicking and striking the victims it's clear that he has these two prior violent felonies so the other way the only other way than the court can affirm this denial of the twenty two fifty five is to first determine that mr mr lofton has no vehicle to attack the underlying drug felony that he didn't attack and from the district court when it was listed in the pre sentence report as a qualifier he didn't attack his sentence or his determination as an art career criminal before the before the circuit on direct appeal he didn't raise it in his twenty two fifty five as a grounds for not counting it mr  right it isn't a qualifier and i'm not going to stand here and say that it is but i am going to stand on the government's right to rely on something that mr lofton never raced ever and johnson doesn't resurrect that procedurally johnson doesn't affect violent or excuse me drug felonies at all and so he can't raise it harm i understand your argument and or your put your point the harm to the government is that i'm standing here spending time with the court that we don't have finality with respect to those is that aggravated criminal sexual abuse of a minor in this case a five year old is a violent felony and i'm not going to stand here and argue with mr whalen about whether or not touching a miner's vagina is painful or is so so violent that it falls under johnson i'm saying we have a different class of victims here and the supreme court when it was looking at johnson and aggravated assault type cases it was saying offensive touching doesn't qualify as physical force but offensive touching in the context of domestic violence which also involves physical force does qualify often use it isn't retroactive the johnson case you just referred to enforce is not well i understood that under johnson to one welsh that we would apply it retroactively and perhaps i'm wrong about that and if i missed that well you haven't you haven't mentioned walker isn't that isn't that the point of walker because  times you go by the law at the time of sentencing and that that would be great for the government in this case and we didn't raise will that i should have either of these cases from the notice from your district unlike other districts is just not being racist and it should have been that's quite clear and i would ask perhaps you know i wish i could recite walker to you right now because i can't but my point is i appreciate the procedural argument there that we're not going to go back and relive again whether or not it was a it was the law at the time of sentencing because clearly at the time of sentencing aggravated sexual abuse was a crime of violence under the on criminal act child then i don't think i can win that argument but if we can look at it can textually and understand that when we apply violent force to a child it's not the same kind of requirement it doesn't require that you have that you hurt a child if you have a child performing oral sex a small girl on a man that's not going to cause pain that's not going to cause a physical injury or it could but it doesn't necessarily or in this case mr lofton touching the vagina of a six year old or five year old child there was no allegation that she was quote hurt or crying in pain but i'm saying contextually it's abuse it's it's force it's physical force that addressed this in the federal context but there are many many cases that don't require pain as it relates to sexually abusing a child if there are no other i think the short answer to why mr loft and did not attack the use of any of his priors at the at his original sentencing was because it was crystal clear at the time that is egger baited right you know i'm not i'm not sure exactly what walker says off the top of my head i'm quoting it to ok go ahead and if walker is is saying that you have to apply the law at the time that was in existence at the time of sentencing then i think that's inconsistent with the supreme court precedents that say just the opposite and i also think that there is a split among the circuits on that issue and again if this court would like us to address walker in the context of this case we would be more than happy to submit supplemental briefing on it well thank you