her to a motel on several occasions for this he was sentenced to eighteen years of prison in a federal prison now we don't condone this behavior obviously which is rightly punishable under the criminal laws of puerto rico and other u s years jurisdictions but this conduct this particular conduct is not punishable as a federal offense when it occurs within a state of the union but only when it occurs within a commonwealth territory or possession of the united states light puerto rico the statute of this conviction in this case is unconstitutional under the commerce clause and under the equal protection clause what's the standard of review that we would use for those two issues the standard of review is de novo review your honor  the government has argued that plane air review applies because the argument was not raised below but this court in dissent in the dissent of case which is cited in the reply brief has ruled that a constitutional challenge to the validity of a statute is can be raised for the first time on appeal now an important note on dissent oh is that it i have seen a comment in a footnote that this it said we review a determination a claim that the statute is unconstitutional may be raised for the first time on appeal review we review a determination of the constitutional constitutionality of a federal statute didn't know that that ruled that because we find no basis to question the presume filippi of the section that was being challenge we conclude that the district court properly had subject matter jurisdiction conferred by virtue of the fact that appellant was charged with an offense against the united states so that is the law of the circuit i realize there is a conflicting law in the circuit but the rule in virtually every circuit is that the earlier president holds on less is over ruled by a panel opinion or a by the supreme court so even even so under playing error he the challenges to the constitutionality of the statute would also be successful that this that the territorial clause i'm sorry that the commerce clause applies in puerto rico is is also precedent of this court and the u s and u s morris and the supreme court used for factors to determine whether the conduct required their substantially affected the the territorial clause initially governs any territory or possession of the united states the territorial clause authorizes congress to make whatever arrangements for the administration of it that territory it wishes in this case a eight important change was made in one nine hundred fifty two prior to that change the territorial cla according to the precedent of this circuit to puerto rico because your argument is that supposed commerce in a statute post the change of the status of puerto rico expressly says it's relying on the territory is your argument that congress no longer can do that or is your argument that congress should be presumed not to be relying on the territory after the change in puerto rico i would have to answer that it would depend on what it's doing if if with the statute it it means to regulate as a police power with police powers puerto rico then it would not be able to do that even  recent law under the territorial clause and under the authority granted by the territorial clause now it may be that put the particular situation with that law can be analyzed but if it is that if it is as is there any the territories and the district of columbia to regulate internal to the internal affairs of those territories afterwards there have been admins to this law and there has been no explanation as hundred fifty two it has continued to try to attempt to govern the internal affairs of those territories and on what basis it has done so the legislative history is silent on that matter now the four factors that are identified in morris and for commerce clause challenge are of that went quickly did yes that went awfully quickly we do have the four factors from your brief ok if you have any other questions i'm exercise of congress's power was in fact non jurisdictional and in that case it also cited to us the pain which was cited in the government's brief also to show that when claims constitutional claims are raised for cases that is the power of the prosecutor to bring the case which may not necessarily be subject matter jurisdiction can also be raised at any time is that is that the government's position after class well the government's  after class your honor is that this type of challenge a challenge persist the commerce clause by the congress has exceeded its story under the commerce clause is not indeed a challenge to subject matter jurisdiction and this court  virtue of the unconditional guilty plea it was waived and it could not be brought up and i misstated your pain and also noted it was not jurisdictional and then taking note in previous case law in the first circuit said that such a claim was waived by virtue only of the unconditional guilty plea that was what the government argued in her brief originally that this was waived since class came up less than two weeks ago i believe it came up two weeks wall will be on tomorrow seems like ten years since that happened the government has stepped away from that original position because it seems that now pursuant to class you can attack the validity of the content of the constitution of a little you know of the underlying statute be that as it may it still can engender plain air review if you failed to bring this issue up to the district court below and in any event it's the government's position that it was not error let alone plain error what should be the appropriate standard in this case because of the territorial clause and the commerce clause now specifically this court determined that the mann act was a valid exercise of congress's power pursuant to the territorial yes your honor and that is precisely what this court and the supreme court has done after the in x amount of the puerto rico constitution in one nine hundred fifty two the puerto rico constitution wasn't acted in for nine hundred fifty two and if you look at the legislative history of public law six hundred it's stated that the united states puerto rico relationship was not going to change what the constitution did was allow puerto rico to have a greater and greater extent of of autonomy but that relationship of territory and the federal government did not change and the supreme court so held in harris versus first sario in one thousand nine hundred eighty eight in which that case the issue was whether whether recipients of for children who i believe it was they had needy children whether they could have received less funds than individuals in the states and the supreme court noted that puerto rico is constitutionally a territory and can be treated differently as a territory in that case they found that it was valid because these families these residents did not contribute directly into the treasury and that treating puerto rico a state in fact would be would be too costly and we need not go further than two thousand and fifteen with this court's decision and frankly into the puerto rico bankruptcy case there this court noted that  constitutionally a territory and when it was leaning how congress treated what he called differently in terms of whether puerto rico unlike the states didn't have the authority to authorize its municipalities  to seek bankruptcy it explain the difference of puerto rico as a territory versus the states and noted the the federal bankruptcy law as written was consistent with congress's plenary powers conferred by the territorial cause that it can treat the vehicle differently and this court so held that that statute was valid and preempted the local law there is nothing that has changed the federal government's ability to legislate differently from puerto rico and this court even after the an accident of the the puerto rico constitution and all of us is a different question but not so much whether they have the authority to do it it's whether they've how do we know whether they've chosen to assert that authority well one possibility as we assume if they were to invoke any power that would let them to do what they have done another possibility is you have to be expressed the identifying the power that they pursuant to supreme court jurisprudence congressional action can be up held even if it's unsupported by the commerce clause as long as there is a valid exercise of some other constitutional grant of authority and that was cited in our brief and so because there is a valid constitutional grant of authority that this court has already spoke about in crespo and nothing appears to have changed nor has this court or the supreme court have held that the an act of the one nine hundred fifty two constitution changed the relationship of the united states in congress's authority to legislate the territorial clause here saves the day and even if it didn't it's the government's fallback position that this statute is also valid as a proper exercise under the commerce clause now the government is cognizant that at the time of the briefing we stated the two easiest paths of a ferment as they had binding precedent at the circus in the circuit and noted that the legal panorama could have changed depending on the supreme court's decision in class and we stated that we would seek leave if the court deemed appropriate to present our commerce clause arguments now because of the short timeframe that wouldn't have given the government enough opportunity to present these arguments and enough opportunity for the appellant to then contest them but if this court so desires we we would seek permission to present those arguments if they're deemed necessary in addition to our territorial clause argument which we feel the court may not even get to the commerce clause because the territorial clause in this instance provides a proper grant of congress's authority to legislate differently  the approval of the constitution actually sort of shrunk congress territorial and that meant power with respect to puerto rico was never made in those cases was do you know i'm not so i imagine there are i think they're both curiam decisions and i didn't see any reference to it they are your honner but to the extent that this court in the united states reversed frankland in the bankruptcy case spoke of the court's territorial power and the fact that it can legislate differently with a lot the bankruptcy law that at that moment did not state why it was doing what it was doing within one thousand four amendments that took away puerto rico's authority to authorize the bankruptcy of its municipalities there the court had no problem and in explaining how the difference could have been because puerto rico can be treated differently pursuant to powers what about examining board the supreme court case that says that part of that the approval of the constitution allows puerto rico to manage its own internal affairs it's your but this isn't an issue of an internal affair here this is an issue of how the rico and how congress has determined that this type of activity has a federal impact in addition to an hour notably any state impact that it may indeed have and that is also employee supported by the by the also which it's the government's contention that it this activity even purely intrastate activity if it forms an economic class of activities that substantially affect interstate commerce under gonzales first those rights of the supreme court specific statute in this specific statute when you look at the protect act in the one nine hundred ninety eight amendments it was specifically designed to heighten all of the penalties that had to deal with sex crimes against  exploitation of minors and at this point it was it was almost unneeded and redundant citing to your your denial of and bank and modern other would have us at that point it was obvious after over sixty years of cresco being the lay of the land congress never tried to do anything to the contrary and quite frankly that addition of the language was was not there's no legislative history as to why it was indeed amended different in this case your honor i'm currently i cannot answer that question but if you would like i would but i would submit supplemental briefing if you're on i would like the government's response to that it was our original argument that it was waived and in any event plain error so the government essentially provided the first half of the ferment under kind of thing and also as waiver argument and obviously that has fallen now by the wayside because of class but if you would like us to further expand on why plane air we exceeded its authority either pursuant to the territorial clause or to the commerce clause and that deals with the constitutional status of puerto rico and maldonado born of course it was an issue of statutory interpretation whether puerto rico should be considered a territory or possession of the united states it specifically did not state that point there because status was not a territory and it was actually a different statute at issue was specifically noticed that it was not discussing the constitutional relationship between what the recall and congress and knowledge congress is authority to legislate word commonwealth and puts a lot of emphasis the fact that because of the one nine hundred fifty two constitution and axemen puerto rico is now a commonwealth that they're not even bringing such an argument unconstitutional may be raised for the first time on appeal and that was a case that was directly on point it was a commerce clause challenge to a criminal statute now even under plane air review we understand the commerce clause challenge is an equal protection challenges are will prevail because the four factors in more are saying are clearly all against the government in the sense in for the co challenge and in the equal protection clara challenge i'm sorry there's a there is a classification clearly treats injury jurisdictional transportation differently in puerto rico than it does in a state of the united states there is a funnel in some fundamental interest at stake personal liberty and that means that the statue would have to be narrowly tailored to serve a compelling government interest compelling government interest has been identified and even if it were they would it would have to be explained why it would not allow the why would not be proper to apply the v restriction of to the reply brief and this statement in franklin in the franklin case that mentioned that puerto rico continues to be constitutionally a territory really does not address the question that is presented before the context but in the constitutional context since we are not the state we are a territory but that doesn't mean that congress has the same plenary power it had before nine hundred fifty two the government should not be allowed to file a supplemental brief it should have addressed the equal protection argument and commerce clause arguments in its in its principle brief but if if it is allowed to address those we would request an opportunity to  respond certainly because we are at a disadvantage we cannot contest especially the equal protection argument unless the government has put forth what its interest is i understand it's  were good ok thank you very much