mr motorola's prior conviction and i'll move on to discuss why even if the court accepts that the government has so established as elements the element of the government's point to is not a crime of violence under this court's precedent  and we do have some indication in the authorities before the court of how new jersey refers to these interlocking statues we've got both parties say walk us through the procedure used for saying as i understand it the p s r was objected to by your client and the government submitted an addendum which is the normal course  which becomes part of the p s r and that p s r was adopted by the district court at sentencing now india then dumb as i recall this plea agreement that's become a centerpiece of this appeal the plea agreement by your client in new jersey is referenced in the adenoma also says that that plea agreement is in the record was the plea agreement and the record yeah why didn't you object to that a denim and say this plea agreement isn't in the record because it was not it was not issued at the sentencing hearing but the addendum said you had  and it relied on the plea agreement and yet you did not say to the judge your honor i don't know what they're talking about i'm out of plea agreement we've never seen because when we really raised the reason why is because when we raised our objection at sentencing the court along with the sentencing hearing is quite clear and then when they when the government presented it to our court you did not oppose its being made part of the record this plea agreement which is extremely important you did not oppose it in  brief you tried to get around that by saying well we just wanted you to have it so we could point out there isn't it but there was no objection to it there was no limiting your unopposed acceptance of the plea agreement on appeal but what was it was part of the record my own friends well that's why i'm arguing that it doesn't show what the government says so you admit it is part of the record it is fair game for this panel to consider it is part of the record is granted the government's motion it is part on a post  enhancement that is their burden to produce those documents into the record and that did not happen here neither probation or certainly the government act has that burden lived up to this court and those cases go back many years were in the face of an objection those documents must be introduced and that simply didn't happen here and the government as well as defense counsel a lot went through and with the judgment of the entire sentencing hearing going through the analysis of what the entirety of the scope of the new so but as i said i don't see that as for the record now but the government still has failed to meet its burden for the new jersey statute that new jersey statute doesn't exist well at sentencing  said they all talked about the entire scope of the new jersey statute not any particular prong the government literally went down through each alternative prong to explain why in its opinion that was a kind of violence and the judge and gay engaged prosecutor on that in that discussion but there was never any suggestion in that that the court should only look at one particular subsection is quite the contrary the argument was clear that the full scope of the statute was a comma violence so you didn't the breath in particular pointed out that the breath of the phrase contact social contact and it is yours the law is unusually broad and unintuitive but no again i don't i see no reference to it and i'm from any party statutes in this way they cite the two statutes separately when one is being reference another we have a new jersey jury instructions which i've cited and of attached to my briefs and they don't cite it in this way agreement signed by your client which is in spanish and english it cites two to see fourteen dash three a six and that should be to see fourteen dash to a six and that's what he pleads guilty to and then if you look at a fourteen to a six says the actor uses physical force or would be a sexual saw sense so it's only the one it's only the one line from that subdivision to a not subdivision the fourteen dash two that comes into the office of conviction which is  and of conviction and that's what he pleaded guilty to and again i do not i do not take this record to stablish is that it's it's also as i point out in consistent with the description of the often the p s r vigilance further reason to doubt that this weight was initially charged with had no elements of force or injury or i'm sorry force or coercion or injury and those are additional elements that are in this all things it's a lesser all things but it's not a lesser included offense and so that's another reason why it's not so obvious that mr montrose was convicted in this form of new jersey sexual contact aggravated sexual contact but even if the court finds that that's the case this form of new jersey aggravated sexual contact is not a crime of violence it's got three elements the elements are sexual contact force or coersion and severe personal injury none of these require any contact much less force between the defendant and the victim and it's also important remember there is simply no element of age so the arguments that this is either sexual abuse of a minor or it has an element the use of force i think fall away because of that the new jersey law is clear sexual contact can be committed by masturbation in the view of a victim regardless of whether that person sees the self touching or not the jury instructions the statutory definition briefs says that sexual contact includes self touching in the view of the victim the authentic issue there was a different often said incorporated the same element but it makes clear that the jury in new jersey definition of sexual conduct sexual contact  includes self touching in the view of another and also that the definition in the jury instructions is crystal clear on this as well as the statute and similarly with personal injury i cite state the walker which is a new jersey case in which again it involved a different sex on fans but when talking about the element of severe personal injury the court made clear that temporary inability to carry out daily duties is a severe personal injury so there the person because of the stress involved with a sexual assault was unable to go to work for several days and had trouble relating with her husband and that was considered severe personal injury without any showing a physical injury or contact while there had been to the contact it was a different se oftens but that was not part of the element the element injury was based soley upon the psychological stress in the in bill inability to work and do household chores and things so the new jersey cases are clear that each of those elements can be happen without any contact between the defendant and the victim and the governors point to any case where this court or any other court has held a cup an authentic involves no contact no attempted contact no threaten contact the court says the mirror is touching without permission that satisfies force we don't even have that here and also i think that's important because what we're ultimately doing here is defining what is a kind of violence these are all subsets of that phrase and this would be a particularly bizarre finding to find that a non contact non threatening contact is a kind of violence that's not the normal usage of that work and for and frankly the government never argues that a non contact offense can be a kind of violence or can be a forcible sex offense the government's argument is that well this argument you can tell from the elements either sexual penetration occurred they said on page twenty six their brief or well it's the least touching over the close occurred and that's on page thirty six of their brief brief but that's not true that's not what that satisfy the elements of this softens the government now points to it so the government never even argues that this non contact defendant by defense counsel on the seventh and final page and as judge barksdale said it's in english and in spanish it is and in aaa sion on my part i respectfully submit it is not much of an interpretation the designation of the statute a violation is to see fourteen three eighty six and i would respectfully submit that it's simply a shorthand that motorola pled guilty to aggravated criminal sexual contact which incorporates to see fourteen to a in one of six manners and it narrows that to these six the manner of committing the fits the actor uses physical force or coercion and personal injury is sustained by the victim as judge product said i want to take the what is the president you can cite the laws where we can thank to  are off the top of my head i do not have a publisher unpublished opinion i will endeavor to find one thankfully submit the judgment was aired at the time of the guilty plea probably either by the state district judge or the district clerk is that is usually the a two through seven is simply narrows it down to one of those six means of commission but i do not have a case you know one of the tenets of criminal law in this country is that statutory and persons plead or don't plead to a specific statutory offense and you agree that there is no such animal or statute as to see fourteen explanation we have on the record as to why this supposedly smoking gun plea agreement was never even mentioned during the sentencing proceeding absolutely outstanding question judge barksdale and i thank you for that the short answer is your honor i do not know the slightly longer answer is the probation officer who prepared both the p s r and the indent them is not the same probation officer who was at the sentencing in the valley offices there's office there's sentencing hearing her house were not in possession of this piece of information i would rely on what's in the den and the p s r as you've already noted the new jersey plea agreement the parties who would have been the record on appeal you would have had to you would have had to supplement the record him fortunately for you the other side did not oppose your motion or actually honor that the original probation officer says that it was provided to the confident it was not in the record an appeal provided to mr gallagher right it was in the hands of the probation office and again all i can do is rely on the statement in the a done them it was provided to both trial counsel  l for the united states in the original probation officer neither were present for the sentencing hearing the only explanation i can provide is that they're substitute their successors in interest perhaps were not in  one piece of information mr motorola objected to the sixteen little enhanced men on the basis that the statute is long and convoluted and i would certainly agree with that and said that it is not a crime of violence there was a roughly five page five unhappy age discussion of that at the sentencing hearing defense counsel that advocated that it was not a crime of violence because there are a myriad of ways to violate the statute some of which do senses at the end of a discussion of approximately five and a half pages at the sentencing hearing judge crane brought the matter into focus by asking the defense attorney this was i understand a fourteen year old little girl judge randy crane's phrase fourteen year old little girl not mine he was twenty one years old five year he was twenty one five years old sorry seven years older than the girls fifty percent older than the girl a fourteen year old would be a seven pts or eighth grader an eighth grader i think in middle school so is there anything that you want to add if there was ever a point in time when either monster role or trial the fence counsel would have said that is an interesting set of facts that it's not appropriate for you to consider that moment would have been the time trial defense counsel instead launched into a discussion of his argument for either a downward departure or variance of the thirty five fifty three he never motorola never contradicted the fact that the girl was fourteen he never contradicted the fact that he was twenty one at the time of the sexual encounter and it wasn't a sexual encounter it was apparently consensual sexual intercourse there's a description in the p s r and that information came from where that information came from the p s r ultimately it came from police reports from the girl's mother who called the police in new jersey after she discovered that her daughter had a cell phone and asked the daughter why and and got completely unacceptable explanation and that was what he was indicted for but the  bargain reduced the charge to that's not what he pled guilty to yesterday on or that is correct he was indicted for having sex with a girl older than thirteen but sixteen or younger he pled guilty to the statute did we discuss to see fourteen three incorporating one specific part of to see fourteen eighteen by your interpretation yes or your honor by my interpretation not precisely as judge crane said you were twenty one the girl was fourteen it would be sexual abuse of a minor it would be statutory rape it would be a forcible sex offense under two l one point two in the commentary  motorola never contradicted the fact that the age differential and my best argument which unfortunately i do not believe is in the brief would be lopez daily on which i believe the product was on the panel for court is not required to ignore the district court in this court or not is not required to ignore things that are in front of the court i argued in the twenty eight jail later than under chavez fernandez when judge crane pointedly said fourteen year old little girl if there was any part of that that was incorrect that obviously would been a time for motorola for trial defense counsel to correct that set of facts you know i was going to wait until after  with you brought it up twice now each side and you especially since you found it really abuse the twenty a j letter process you're basically filing a supplemental brief when you're twenty eight to a letter and the other side i can understand why they'd feel necessary to respond but we're seeing more and more of the us lawyers trying to continue their case right up to where a large amount siding opinions decades old as if their new information that to and then reach quote crime of violence close quote as we know it understand that term so what's your best articulation based on our case a lot of us are mean is that it was a crime of violence i mean is yeah well i mean what is the clear articulation because i mean it's not a straight line between the statute used died for what he played or what's not in the record and what everybody understood so what's the best comprise a forcible sex is since sexual abuse of a minor or it would involve force under the residual clause of two a one point two b one because of the age of the girl that would be my best argument as you say he was originally indicted for sex with a girl over thirteen but under sixteen and allowed to plead to what new jersey considered the lesser of the defense you know we can honor this modified categor approach to trying to understand whether it's a crime of violence we can't get into the individual facts we just look at the statute and what's included in the documents and the record and if you say he was twenty one she was fourteen but tell me how that is a direct translation and to the catchall part of the  a guideline which is the you know if it's not one of the numerator defenses it falls into the category of has not some element the use of attempted use or threatened use of physical violence against the person of another one man how does that how does how do we get from a to b on that you're on i believe after the court's on bunk opinion rodriguez the age of consent is considered to be eighteen and therefore the girl would be capable of consenting sex with a fourteen year old would by its nature involve the use of force simply because of the age of the  point out that my colleague at the sensing hearing explicitly said and this is on page five i don't have the electronic cite the internal page five of the sentencing hearing he said i think the indictment we do have a first the original count but not necessarily the amended count so we don't have anything that necessarily pairs down what my client necessarily pled to and then from there the court and the prosecutor launched into the discussion about all the alternative means of committing this all things in a new jersey law there was no response well yes you get the court just proceed to discuss everything as if you're in fact correct mr defense attorney and you do not have anything that pairs down the statute and then as i understand the government's argument main  on this oftens is that the court can look to the underlying conduct when the judge frankly didn't even ask the defense counsel a question but was he to overrule the objection the judge mused about the facts of the case and then asked for allocution successively from defense counsel the defendant and the prosecutor and when the defense attorney and defendant did not jump out of interest start disputing the underlying facts of an authentic that were that how does an element the age of the victim nor that any particular differential between the victim and the defendant he was initially just charged with such an offer and not convicted of such oftens and the contrary silly from the supreme court says that's totally out of bounds to look at the underlying facts in this in this circumstance and this court has known that all of any luck at all if we look to the as the government says a shorthand reference to the underlying statute  includes the ages and it doesn't go your other and the and the it says if you do this you know initial new jersey's the new jersey statute conviction just says active sexual contact with the victim under any of these circumstances and then you go to these circumstances and that's two to seven now the first circumstance does have an see fourteen to a says if if he commits an act on any of the following circumstances parin won the victim is less than thirteen years old prim to the victim is at least thirteen but less than sixteen and then it goes into these other subsets about six the actor uses physical force or coercion and severe personal injury sustained by the victim brett so but that's and that's what he pleaded to using the government shorthand which is not necessarily physical force or coercion in severe personal injury is sustained by the victim now you could have also committed that same offense in different ways by committing a two which is the age when you speak about but there's no evidence of that and then the other ways of committing it  say is even granting that document at full face value is the government says that it's it is wrong as a matter of just reading the statute that this has an element of the age of the victim and in fact the state versus from new jersey as well as the jury instructions i've provided both lay out the elements very clearly in the elements are simply sexual contact force or coersion severe personal injury there is no element of age so those facts in the case the government cites chavez hernandez that's a case which was on plane error of you it's unclear to me in that and that in fact actually the defense attorney affirmed of the herbs well so he had sex with this minor we never did that and also this is an employer of you into the court to look to that concession to find that they the defendant could not show any effect on substantial rights when he got up there he made it essentially to the conduct we're not talking about any effect on substantial rights as the government's burden here to that even under the government's plea for him there is simply no element regarding the age of the victim nor an age differential between the victim for the defendant of the all things they now want to appeal or saying he was convicted of that was the initial charge thank you