good morning your honors may please the court in this case at issues whether mr all prior conviction for maryland third degree sex offense qualifies whether it qualifies as a generic forcible sex offense now for purposes of section two hundred one point two cents inc i have minds now there's no dispute here that the prior often is forcible the only issue here is whether or not it qualifies as a generic sex offense under two one point two and your honors it does not because the specific subsection of the maryland third degrees statute of which mr bar was convicted can be violated by an unwanted touching for example by touching somebodies but on the outer clothing while being aided and abetted by another without an intent to gratify one's sexual urges and intent that's required  in order for the office to qualify as a generic sex offense in first year honors i will discuss the generic sex offense definition and why that requires an intent to sexually gratify and then second my plan is to discuss the maryland statute and why the maryland statute here does not have that requirement and therefore doesn't qualify as a generic sex offense your honor starting with the generic sex offense definition abuse of a minor even though the term sexual was being defined there your honor that's very similar to sex in the court in that you think that we lose that case wins this argument for you  maryland case law makes very clear that sexual gratification and abuse are two different things because the abuse can be for purposes that has nothing to do with sexual gratification for example the buz could be for emotional injury that's not accurate actually because a lot of those rape statutes are going to have an element of violent force and so they're going to qualify for that remember here we're talking about a statute that only requires an unwanted touching for example patting somebody on the butt on top of the outer clothing so even if there is not a sexual gratification element there will be many statutes as long as they have an element of violent force they're going to qualify under the force clause honour's this court has made very clear that under the force clause you know there has to be an element of violent force would meaning strong physical force that here the office also does not qualify under that clause because it's very clear here based on bible verses state of maryland court of appeals to a decision that this debt you can't be violated by simply for a second touching on the but on the top of the outer clothing so as far as the force clause for this case it does not qualify under the force clause and then also my argument here is that it also doesn't qualify as a forcible sex offense because it's not a generic yes and he had to register therefore as a sex offender yes you are and before in this case he pled guilty to a charge of not registering under the federal sexual offender registration act yes your so we have a person who's guilty of a sexual fans who has to register as a sex offender a crime that he pled guilty to and i think it was played in this case included not registering that common sense is not the is out of the question in these cases i think i totally agree with you there but you know we look at cobra are you mans are there the often said issue was child sexual abuse of a minor that was the name of the offense that the defendant was convicted of and yet we held that it did not have an element of sexual gratification or you held i'm sorry judge trackless decision i can't hold any your honor i do think it makes sense yes i do i do think it makes life so the reason i think it make sense is because what an individual did in a case  he could have done it she could have done why in this case he did x we can all agree he did it is that kind forcible sexual conduct it well with that approach well you know other than i know we may be bound by categorical but yes can you yes as a matter of law yes in the day of individual licensing why in the world do we act like we're blind deaf and dumb as to what a person actually did well well your honor that is as you know if you don't consider everything about the individual when you when you sinners are passed kind of social economic factors education everything you could think of and i'm sure you've all a good many times care we do we do so there's no dispute here as to which subsection the defendant was convicted of but still i think i agree with judge said that you have to look at it it's still an elements based approach even when you're in the modified categorical prochoice the court can only look to the shepherd documents to determine which of the elements the defendant was convicted of so here we know that  he was convicted of three three o seven a and then you have to look at the most innocent conduct within that subsection so the most innocent conduct would require an unintentional touching of an intimate area while being aided and abetted by another for purpose that either is for sexual gratification her views and so that's the most innocent conduct and that's what we're looking at and i don't think there's any dispute about  what we use there because your honor that that's not a part of the that's not in the shepherd documents we're looking at his conviction you know that the shepherd documents that was a case where he didn't have something else there's somebody th absolutely agreed to those shepherd documents type documents or either something that he agreed to or something that was really clear no dispute about it but why wouldn't a sex offender registration why would that be something that's it no but he didn't say it's not so he absolutely agrees with the walk in that the documents to look at in the modified approach well first are all the outside of what people generally think about and i'm asking on of the rationale that they said group of documents to be looked at why couldn't sex offender registry be one because your honor you can only look at the off ends of which the defendant was convicted here you know and the charge that we're looking at for is  decide what he did the rationale for the shepherd documents i'm not looking at the caveat that there's a limited group of documents you can look at why isn't a six registry that he agrees he has to be part of he agreed to that he agreed to it  under under his yes it's all part of his initial conviction why wouldn't that be the same type of document that was shed light on what he he did just like the shepherd documents well your honor if if if that was did have to register right earlier earlier because this offense is based on the fact that he didn't register like he had to do so the fact that he had to register is dispute about that so why is that why doesn't that carry some weight on the shipper type documents i'm just asking why doesn't it because your honor even if we could look at that  i don't think it reveals anything here because we're trying to determine if at most it may reveal like what the underlying offense was that he was convicted of you think you're still just bootstraps back to yeah i mean it's so we're back to does the third degree sexual offense qualify and it doesn't and so that document doesn't have any value here and then there's no dispute that failure to register itself is not a sex offense the government's not even arguing that oh no here no this is about this is not an element of this crime right isn't enhanced of this crime in part on what he did earlier based on what he was convicted of yes but again like i said your honor that goes back to marilyn third degree sex offense and you know for the reasons that i've stated it it just simply does not satisfy the sexual generic about the lack of common sense and all of th yes if your point back to the male and underlying facts yes it's a work situation and he and he would go to any woman in the workplace and did what he did have anybody your honor may be a you go up ten you body on the street and yes they probably would say of course that you know sexual harassment but that's not what we're operating under we have to look at  in the lack of appropriateness of the care and by the way they can't approach is written in the law but it's not written in stone and it just strikes me and we haven't already so i don't see too much yet for a man to go to a woman in any setting and uses hands on her body the way this man sexual i mean i think if you don't laugh at the low don't you your honor i agree with you is that it's horrendous conduct if that is in fact what happened that is horrendous conduct and i also agree with you that's what happened if well we're looking at what he was convicted of and actually that's not that he uses hands on that woman that is beat about that is it well your honor he was convicted yes i believe they would that was disputed at trial and then there were a lot of offenses actually that he was charged with he was charged with an attempted rape he was charged with a first degree assault he was acquitted of the  occasion well your honor for policy that is the law we have already done that in cribber you manzer and you know by saying that there has to be an element of sexual gratification but there is a policy reason your honor because i think when somebody is doing a crime or committing a crime for purposes of inflicting sexual injury on somebody for sexual gratification that i think society recognizes it's more egregious that that there's an x factor to that so i think that the policy so i don't know listen you wait a minute now you think society would find it worse i'm a and digitally penetrated a woman for sexual gratification than if he just did it for any other reason you think that i think society would find all of it should be punished the same and i don't think they would count the what happened of that woman any different whether or not he did it for sexual purposes or did it for domination purposes or any other purpose perversion purpose any other purpose you could make of i don't think society would decide he would see it worse if it was there was a sexual component understood you say that yes yes your honor i do think that there that it is makes it a little bit worse then you know if that wasn't it's all horrendous i totally agree with you but i just think it makes it a little bit more thank you very much thank you your hon agree here that the offense in question was forcible so the question of sex offense is subject to the ordinary contemporary meaning and that meaning in our view captures the full range of conduct that's criminalized in the maryland third degree sex offense now just said you asked some questions about how could the fact of his agreeing his having pled guilty as a sex offender how could that be relevant i agree that it wouldn't fall in the category of shepard documents but it is relevant when this court considers the ordinary contemporary meaning of a sex offense to register as a sex offender i don't think i don't think he pled guilty to the six of use when he convicted of the state he was he was convicted of the sex offense under maryland law he pled guilty under federal now sort itself provides a definition for what a sex offense is most broadly it says a defendant convicted of a sex offense which isn't particularly helpful but it also says a criminal offense that involves elements of a sexual act or sexual conduct and then federal law also provides definitions of those terms sexual act and sexual conduct like i said conduct contact both of those terms and this is an eighteen u s c twenty two forty six both of those include food you know basically the kind of intentional touching which is certainly what happened in this case in which is criminalized under marilyn third degree sexual offense for all sorts of purposes including gratification including arousal but also including abuse humiliation degradation and that gets to judge floyd your question is there are a policy or logical reason why a sex offense with the purpose of abuse should be excluded from the general definition of sex offense the answer is no and that's what federal law says and that's not what this court has said india as a bar or cabrero man's or those cases involved the interpretation of sexual abuse of a minor and it's clear that in both of those cases the court in passing offered definitions of the word sexual and it and the definition i believe first from the diaz of bara case was the sphere of behavior associated with libidinal gratification for one thing that definition talks about the behavior associated with live leviton of gratification it doesn't say equals gratification it talks about the individual's behavior in our view that encompasses was sexual abuse of a minor the word abuse is part of that phrase it would make sense even in the passing definitions that the court wouldn't consider whether the sexual conduct had some sort of abusive purpose because the word abuse was in the very term being construed it included sexual abuse of a minor so there wouldn't in that passing definition the court wouldn't necessarily have decided oh we have to sexual could include an abusive purpose and again federal law itself under twenty least that the state's highest court the bible case that mr patel has referenced a couple of times it explicitly holds by the way that touching on the box outside of the clothes is not sufficient to establish third degree sex offense and it also when it does discussing the specific intent needed to convict under a third degree sex offense it says there are two elements that need to be established intentional touching one and then for the purpose appeals so it's not actually the mr a far as argument that abuse necessarily counts under maryland law for third degree sex offense conviction is not borne out by by by maryland law itself but i want to make clear to the court that's that's sort of our second alternative argument the main argument here from the government is that abuse and abuse of purpose is satisfactory under the generic definition of a sex offense and that follows not only from sort common sense intuition but also the federal definition as well as the fact that if you look at the history of the guideline amendments sexual abuse of a minor and this is in the diaz of bara case at one point was seen as a subset of the larger forcible sex offense cases and then it was taken out in two thousand and three because of concerns that there had to be forcible conduct to establish sexual abuse of a minor but the point i just wanted to make the state of the maryland law clear it is very clear when you look at lumpkin versus state and bills first versus state that they specifically had on addressed whether the mar statute required an intent to sex or gratify and specifically said no because it would render the word abuse in the maryland sexual contact definition superfluous so they specifically addressed that definition and said that it can be committed by mental emotional or physical injury that has nothing to do with sexual gratification now bible came along and bible the government was only arguing that the defendant had committed intent was sexual gratification and therefore in bibles the court didn't even mention anything about abuse so the court of appeals surely would have mentioned love pin which was just decided to weeks before bible if it was going to overturn lookin and it was if it was going to go against the plain language of the maryland statute which says abuse or sexual gratification and so it's clear that bible did not do anything to undo the clear state of maryland law that said it could be done for abuse and not sexual gratification the other thing i wanted to make clear about bible is that the other issue there was whether a touching on the but satisfy the actus r and the court said yes it did that's an intimate area and you can touch somebody on the but on top of the outer clothing and that satisfy it so the government is wrong by just saying that they said it's not sufficient to touch somebody on the outer but  and then that will suffice under maryland law and so you are not going back to the generic sex offense definition to this this court has now repeatedly said it six times that the word sexual here because it didn't have an intent to sexually gratifying harass perez after that the court again said the definition of sexual means intent to gratify so your honor you would be going against all of this law that's defined sexual and there's no meaningless full distinction between sexual and sex in fact the government itself in its dictionary deck definitions it gives it refers to them interchangeably so your honor here we do have controlling for circuit law that we have to follow whether there's a good policy reason for it or not might be judge shed was concerned with i mean there may not be a good policy reason for it but we've said it or you have said it