approach or the modified categorical approach and whether or not we take into account the sentencing enhanced men there is no basis for removal because the relevant state statutory provisions override and sleep in conduct that does not involve moral turpitude this court has recognized previously for example in your honor judge reinhart's decision and you know vs holder that for a crime to be classified as one of moral turpitude it generally must involve one of four elements fraud the intent to harm someone the actual infliction of more than to minimize harm against someone or an action against a protected class a victim none of those elements is present here the government does not and cannot dispute that no court has ever held that simple weapons possession is a crime involving moral turpitude that is consistent with this court's precedent holding that crimes involving greater offenses sentencing enhanced meant does not change the analysis as an end national matter we disagree that it is even proper to consider the sentencing enhanced meant under the proper and cream which i can get your leader but even taking it into account for the moment  provision adds to rather than resolves the overbred problem section one eighty six twenty two b one requires the specific intent to promote further or assist in any criminal conduct gang members there is no limitation on the nature of that criminal conduct by gang members it could be any mr mean or the most minor infraction the statute also places no limitations on how that  conduct may be further promoted or assisted it could be directly it could be indirectly it could be financially there are no limitations to district court focus seems on the nature of the gang present in the commission of crimes the fact that somebody is a member of the cr to the community and the like because just because the person and their gang member and that that is what the enhancement was directed that because gangs inherently threaten no legal basis to support the government's position the government attempts to hang its hat on the fact that the california legislature enacted the street terrorism and force and protection act but if the legislative intent behind that statute is relevant to the present it actually indicates that the present conviction of weapons conviction and possession does not contribute to this pattern of criminal gang activity that that particular legislation the step that was and acted to eradicate i'm if you look at the step back which the government attempts to rely on it's brief it numerate thirty three specific crimes two or more of which make up the patterns of gang activity that the legislature indicated was the crux of the problem with criminal street gangs significantly the weapons possession conviction at issue here is not one of the thirty three numerated crimes that make up the patterns of gang activity so to the extent the government or the be relied on the fact that by its nature the fact that it's gang conviction of weapons possession was not among them a significantly section one eighty six twenty two b one does not require the spaces specific intent to promote further or assist in gang related criminal conduct in the government's position on this appeal and in the b ice decision is to be both rest on an improper reading of the statute to require that intent but this court recognized in emory versus clarke that the california courts have squarely projected that interpretation of the language here there is no requirement that there be intent to promote further or system criminal activity by again it may happen to be committed by someone who happens to be a gang member only happen to benefit a gang but there is no intent that that be what the person intended and so for that reason the sentencing enhanced ment does not require the willfulness or the evil intent that this court has recognized is often the defining characteristic of a crime involving moral turpitude on this court for example recognize that principle in judge reinhart's has versus holder decision and also in judge reinhart's fernandes ru as decision for at least this reason the weapons possession conviction is overbroad and fails the categorical approach test furthermore there is more than a realistic probability that the sentencing unhandsome it could be applied to conduct that falls outside the generic definition of moral turpitude as stated the court stated in unions versus holder we only need one case to demonstrate that reasonable probability necessary to show that under the categor secondly there is at least one decision in which the california courts have applied the sentencing enhanced meant to someone who was not a member of a gang himself or herself but who nonetheless was found to have committed a crime that benefited club very broadly the california supreme court for example is to find a billy club to include and completely ordinary unadulterated baseball bat so in a hypothetical if mr hernandez gonzalez had been in possession of a baseball bat he would have been found to have been been in violation of this weapons possession statute if he was found to have done so to promote further assist in criminal conduct for example his brother who happened to be a gang member then the sentencing held must be present for it to satisfy the categorical approach test we know from the abstract of judgment the issue was convicted of billy clubs or do we know without looking to the underlying flarm that he was also possessing nine and no your honor and your honor does point out there appears to be a discrepancy among the documents of the quote me properly consider as part of the record of conviction the abstract of judgment closer look at the record i would submit that the knife reference was actually to the other three defendants and not to mr hernandez gonzales as his abstract of judgment only refer to a billy club i'd like to move now very briefly your honour's to the modified categor approach under which we reached the same conclusion which is that mr hernandez console this was not convicted of a crime involving moral turpitude that there were three documents in the record of conviction that the court may properly consider  charging instrument the abstract of judgment and the pretrial settlement worksheet as we've touched on already significantly and none of those documents touched on what kind of weapon mr hernandez gonzales was found to have possessed it could have been an ordinary unadulterated baseball bat we just don't know the documents also don't establish whether he in fact used or attempted to use that weapon and if so what he would have used it for whether it be for self defense or something else for this reason the you don't need to apply it because under the categorical approach we think that that's sufficient but if the court were to apply it we think that you would reach the same conclusion but we have to determine if it's divisible yes  would submit it is divisible because under the weapons convictions statute you can be convicted of an enumerated line of different weapons from a billy club to a knife to a sandbag to a firearm so because it is divisible i'm your honor yes we submit that you must crime involving moral turpitude for the reasons i've expressed which is that the documents don't indicate whether he possessed a simple ordinary baseball bat or something else in order to suggest that it definitely involved moral turpitude i see that i have about three and a half minutes left here on ars and i would like to reserve my time for i know you want to reserve your time but i just want you to comment if you could on the the remaining because i'm just trying to figure out is there a basis on which we would be able to reach the remaining issues if so what it is what is it because it seems like under our case law we are only to look at the issues decided by the agency i don't think the and if we take a look at the two other grounds of remove ability there are very straightforward issues of law on which there should you know dispute on the weapons possession conviction and whether that was for an aggravated felony crime of violence the us supreme court has made clear that an aggravated felony crime of violence must include as an element the intentional use of force against the person or property of another that woman is not present here notably the government has never addressed this issue on the merits because it's a straightforward if you issue of  this court may reach a resolution on the final grounds of remove ability or whether the failure to appear conviction is for an aggravated felony that she was a simple rather straightforward issue of laws because the government has not met its burden of demonstrating two documents in the record of conviction unequivocally demonstrate that the underlying charge of the conduct there i was punished was a felony under federal law the two documents in the record of conviction the first was the abstract of judgment that one and one hundred eighty six b one and us are in people versus hernandez the california supreme court looked at the sentence a has a provision and found that it was inextricably intertwined with the underlying offense consider it as an element of the nature of the conviction and the full conduct covered by the statutes of convictions stablished that his offense is one that is categor apply is when i have defined it to make commits a gang related felony and that with a specific intent to further promote or assist in criminal conduct by gang members here that has requires the specific intent to promote again it seems like it merely requires it to promote criminal conduct by gang members correct your honor so but it still requires if i can just to that seems inconsistent with the beyond a statement of the law does it because the b isis stated that acting with a specific intent to promote further or assist in criminal gang activity is approves so i'm just trying to figure out how that affects our analysis well your honour's it still criminal conduct by gang members i believe that so you read it the same but there is a gang related component but that underlying felony is gang related because it's in the it's has been committed at the benefit of or at the direction of or an association with the criminal street gang as the first prong of the  also has its own component the supreme court of california held that of his i'm sorry that the statutory provision under twelve thousand and twenty  was under this street terrorism foresman prevention act and that it was intended to address the proliferation of criminal street gangs and gang related crime and violence that had occurred acknowledge that it terrorized and impacted neighborhoods and families and threaten the personal security of us all here press the chair has personally committed gang related weapons possession felony and further ends of criminal endeavors by gang members best argument as to why it's not out of court because it requires not only a gang related felony be committed by the defendant so already including  but as well as for their misconduct in terms of the criminal conduct by gang members i don't think it's going to the board it was she did not believe that there was any criminal conduct issues of law on which there was clear precedent holding that the government was in error and so we submit that because this court would be compelled to reverse the b i e if this case were mandated the interests of justice strongly weigh in favor of