we weren't the trial lawyers but when we looked at the transcripts we saw that mr darius cortez should not have been sentence with an aggravated felony and we said there's two reasons why  is forty three doesn't apply because the statute says rape murder or sexual abuse of a minor and we say well there's no minor in this case we read that as of a minor qualifying all violence where he could have been sentenced to more than a year or so in our reply brief we only addressed that issue and when the court wrote its memorandum opinion only addressed that issue as well and we sentence this is not a crime of violence  it's and it's just english spaced and it states the government initially as a defendant initially argues that his conviction is not an aggravated felony because there's nothing indicate it's a sexual assault on a minor as required  it the first time around which they said was the reason why he was sentenced that way the first time the ninth circuit would have addressed it would have made a decision that and instead were over a year down the line ok that's that's a tricky question i think i've got that one in hand although i'm not sure i have the answer in hand assume for a moment that we agree with you on this point why is it not nonetheless sufficient to sustain the so that the district judge asked the ninth circuit has decided in one of the cases that i came up with as an example was hamilton v us sixty seven at three d seven sixty one and in that case the court found that the application of new guidelines if they disadvantage the defendant they shouldn't be applied and in this case they did if you look back at the old statute there's no means to the that two categories that the defendant couldn't even  why the court sentenced him that way initially you know that that's easy if we agree with the government there out of a minor only qualifies the term sexual abuse does not qualify rape or murder the hard part for me is what do we do with a slightly unusual question a case where the government the first time up seemed to read the statute a different way and that's where us and the defendants reading of the statute of a minor qualified rape murder and sexual abuse we didn't reach that the first time around and now here we are on the district court the district courts as but that's the ground on which i'm sentencing is that somehow there's a sequence of events somehow something any other limitations on the sentencing and since the scope of leak remain and was not limited the district court was free to hear evidence and argument based on any theory whatsoever now there are it's the government's opinion that there was no waiver first there was a clear record that why he was an aggravated found based on a new district court had made the record it was the written record in the defendant goes on to say i think correctly that there's no evidence that this was a minor ok and there is no evidence it was minor but however it doesn't matter because it's section eight murder rape or sexual abuse of a minor and in i believe there is sentencing the court found that attempted sexual assault was the prevalence of rape and are seven at page twenty four and it reset and seeing the judge said that the six team level on hanson is applied because the aggravated felony is the crime of violence so she did it because she did conclude the district court that every sentencing the defendant underlying conviction was a crime of violence because what's necessary to do here because of the change in guidelines is this court needs to decide one whether the underlying conviction is an aggravated felony because that would've been the two thousand guidelines and two whether the defendants conviction is a crime of violence which gives you the sixteen level hampton under the two thousand and one guidelines and because of the textbook facto the defendant get the benefit of the better guidelines but in this case the guidelines are the same and in fact the courts specifically found that under either the two thousand or two thousand and one guidelines the defendant would be get a sixteen level enhancement because it was an aggravated felony because it was an aggravated felony under the two thousand guidelines and because it was a crime of violence under two thousand and one guidelines but you're saying the defendant gets the benefit of the better of the two yes but i but it's the government's position that he's both an aggravated fel under and he's also a crime of violence under the definition of the new guidelines which the court asked us to address that's a tricky question though because it's the only basis for the sixteen level just kind of violence under the amended guideline aggravated felony is a crime of violence thank you thank you very much