good morning your honour's man please the court ryan fraser federal defenders of san diego on behalf of the one hundred floors i'll begin with an issue that in fact the conviction and the sentence california penal code section four ninety six petitioners only argument of overgrowth was based on its reach of excessively after the fact liability there is nothing in the opinion to reflect any consideration of the argument that  resisting arrest under arizona law it was not a crime of violence despite the strada earlier holding that it was a crime of violence and the forest court garo opinion states quoting here on the basis of decisions  arizona courts that we must follow in ascertaining the scope of the arizona criminal statute we hold that arizona resisting arrest is not categorically a crime of violence so i do believe that because of its reach of property obtained with the consent of the original owner as in a theft by false pretenses for ninety six happens to be a lesser included offense of ten i don't want so you commit to no one you're guilty of for ninety six and you can commit to no one without it being generic theft sort of follows as a matter of logic and you can be guilty of for ninety six without it being a generic cost there's another flaw in the government's question any prior circuit precedent creel jaimie in particular is not mentioned in video in his office and yet the implication from the government's reading is inevitable because korea jaime holds that if the state statute includes california theft by false pretenses the other deportation issue was in to the motion to dismiss was the expedited removal of two thousand and nine and as the government conceded below it violated due process in the same ways as the expedited removal and right of aka mr flor was not meaningfully informed of the charge against him he didn't have an opportunity to review his sworn statement he also closet lee could have obtained withdrawal relief under ryan voc of this doesn't mean probable relief it means he needs quote some evidence or a basis on which relief could have been granted his overwhelming humanitarian equities established precisely that basis he was supporting a family with a legitimate job that included his long term partner in los angeles and three united states citizen children ages five four and one and the four year old had autism and mr flores was actively ensuring that she received the necessary therapy fraud and other factors which against him in the expedited removal but the ultimate question is equitable under the field manual would withdraw all be in the best interest of justice and that analysis that can't be overlooked as right a bucket explained that there is a compelling humanitarian interest in keeping families united had similar negative negative equities to mr florida with flores with the exception of fraud and relief was plausible for him because of that compelling humanitarian interest in keeping families united meanwhile  united states citizen children and there's not an indication that either of them had special needs we know also as a practical matter that fraud is not disqualifying because of the statistical evidence in the comparative cases that are in the record in finally an alternative basis to overturn the conviction is the district court seventy two ruling the harmful with the harmfulness of which the government conceded by silence in its answering brief before trial mr flores submitted undisputed authorities establishing requirements and professional in fingerprint examination for peer review regular fish and sea testing and regular continuing education none of which david beers met the district court stated that the challenge was quote not an admissibility of beers is testimony overruling the objection and conclusory fashion that's an abuse of discretion under beribboned where the district court needed to but did not quote assess or make findings regarding the scientific validity or methodology of the witnesses proposed testimony also it's an abuse of discretion under kingston for failure to identify and apply a legal rule it's also an abuse of discretion under hernandez mason for failing to events to do court understood understood and was rejecting mr flores arguments in particular as hernandez mason indicates the district court must show that it quote heard and understood the rejected argument i'm nothing to district court said in ruling on mr flores objection to beers the elements of soft of which are of receiving stolen property in california do not require proof of the elements that made regular theft overbroad under section four eighty four that is so for example as t pretenses extortion how you obtain it is what determines of the stuff whereas for receiving stolen property it just matters that it was stolen and the defendant possesses it knowing that fact moreover i it have to know the fact that it was stolen and yet they continued to possess it but importantly even if this court disagrees with that conclusion or the analysis that can that goes to the sentencing but the conviction for mr flores still stands and that's because there's the independen t removal of the two thousand and nine x that i did removal and they're the easiest path to for instance just looking at possibility of relief relief here was not possible in fact as the district court said it was a virtual certainty that he would not mr floor has not been granted withdrawal as though he were providing for his family for the entire time and it's now leaving nearly half of the twelve years before this removal he was in custody of one sort or another and in return to mexico several times over we don't know how long he was in mexico each time but at some point he was being removed d disagree that fraud is automatically disqualified that's that's not our point the problem with those statistics is we don't know any that's what we don't we don't know any of the other facts about prior history and in this ability even their family consideration and so for ample again distinguishing right of aka in that case he had minimal criminal history and importantly multiple voluntary returns so the court held well there's there's no reason to believe that this level the third or fourth report return is now suddenly the one that will stop being the voluntary the withdrawal whereas here mr for the never have that that relief never been granted that in terms of the compared to cases the court was referencing those also had for sold lots of your criminal history which again we don't know their family these we could look at how many of the people who receive withdrawals have permanently disabled children and he'd find you know there was a difference there and you know it's not it's  plausible that someone could weigh that factor as being more serious than the fact that if you want to come here and you come with a first class tour instead of preparing him completely illegally without even pretending get here and the other person comes to get their phones paper and get here that that's more important than the humanitarian condition well and we're not wayne just of those two factors and i don't want to leave the court with that impression but what i would also point to is prints be happy to but just to go back to that the government's explanation here one was it doesn't matter how the property was stolen and so certainly i would agree with the government that there will be some for ninety six cases that constitute generic theft it's just that that's not the issue the issue is whether there can be four ninety six cases that are not generic that the second point was as to  of the word stolen and comparing that with the definition that it's given generically as compared with the way that it's used in california law same word with two different meanings and that difference in meanings is critical the difference is that generically stolen property is property that was taken without consent of the original owner whereas with for ninety six in particular with theft by false pretenses and doll the five bush exemplifies it perfectly by bush obtained a loan on false pretenses that he had a trademark he's the initial guy receiving it he's liable for receipt of stolen property under california law even though that's not stolen for generic purposes the government has not raised that issue and i don't know of any basis to conclude that it would be generic receiving stolen property because the way that stolen property is considered for purposes of this analysis appears to be that it must have been