got two convictions which we can see are aggravated felonies and crimes of violence in two thousand and four there's been a reinstatement process where he did not appear in from immigration judge and his deportation was reinstated so based increase the sentence and so if the reinstatement cannot be relied upon whether or not the nine hundred ninety nine sex with an individual under the age of eighteen is categor crime of violence under the guidelines or an aggravated felony this court has before it right now an arm bar court the issue of whether or not the reinstatement process is legal or not so because that issue is before the court i plan to just discuss whether or not the one nine hundred ninety nine convictions are crimes of violence is the finding the guidelines i see a puzzled look on just you can see that the two can picture is a crime around yes so that's not even so there's clearly that is in his history the two thousand to buy the thing is to increase the sentence either the statutory maximum or to increase under the guidelines the conviction has to occur before the deportation and that's why the timeline song porton so the answer to the question i want to talk about whether or states across the nation you can have consensual sex with seventeen and eighteen year olds that's when the guidelines used the term statutory rape or sexual abuse that minor they had to have had it taken into term means in the ordinary common meaning and across this country but quite simply sex with seventeen sixteen seventeen year olds is not criminalize so it cannot be statutory stated in the in the guidelines or sexual abuse of a minor because seventeen and eighteen year olds in the context of consensual stats are not mi agree lead to eighty eight which he was convicted in two thousand and two in sexual abuse of minors so we're only getting these questions after the point the restatement procedure procedure hopefully scared well let me go one step further because yesterday i don't know if the court is aware but i held basically that the oregon statutory rape section is rape as the fine is an aggravated felony and the organ statutory rape section is sixteen and below and actually this repeatedly over and over indicated that it was evaluating the full range of felony for his nine hundred ninety three conviction for unlawful sexual intercourse with a minor more than three years younger than he now california penal code rehearing so anyway what we have to be careful of is that some of these cases talk about whether or not a statutory rape is rape and that's the case that you referred to just the last day or two i was on that panel and part of the majority and then we have to look at whether or not the case involves the issue of whether or not a felony is a violent felony as the as the case in and earlier table right now it's this that's not burglary because i think it's thirty five jurisdictions throughout the united states it's not burglary so that's the same concept just because california extends its criminal i believe does not mean that that's what the any case can be distinguished because because they're taking an immigration context they express the stated that they're giving deference to the v a s definition of sexual abuse with a minor and so because this is in the criminal context and this court must take a fresh taylor approach not giving any deference to whatever definition that the b i had made you really need to look at the entire definition of sexual abuse of a minor and whether or not that deprivation can be permanent or temporary so there is precedent in this court for reading basically definitions that we're talking about today is not being limited by what allegedly the majority of states the holding in this holding whatever we do in this case it is going to be based upon our own whole cloth determination of what is an aggravated felony and th is is not right and to the extent that there is any discussion whatsoever of and saw the reason i bring that up we can talk about the intricacies of sexual abuse of a minor and all the fifty states and it is definitely a question that is very weighty but if this court is looking for the original order of deportation that is the limited holding of luna and all the cases it relies on because what there was this challenge that when people were deported pursuing for the reinstatement they would say well you can't use that you