that your honor may please the court the issue in this case is whether the district court committed reversible plain air by imposing a sixteen level enhancement for a crime of violence based on mr beer balls new jersey conviction for attempted sexual assault the court did commit reversible plane air section two zero one point to impose a sixteen level in here is meant for forcible sex offense including where consent is not legally valid or not given such as where the consent is involuntary incompetent and co heirs new jersey attempted sexual assault is not private violence because it does not require that consent be in voluntary incompetent or coerced rather all that requires is the lack of affirmative permission there is no defense of consent in fact the victim state of mind is irrelevant new jersey has replaced the defense of consent and consent itself and the state of mind of the victim with proof that the victim did not act in a way to held that there was not consent from the victors victims failure to verbalise consent in addition black's law dictionary defines consent as a voluntary yomi approval or permission totally unlike the new jersey offense given the clear state of new jersey law at the time of the sentencing in this case it was plain for the district court to impose the sixteen level enhanced the new jersey would affirm a conviction when there's lack of freely given s self the victim says that she was asleep when she was assaulted the perpetrator says no they engaged in much sexual activity and then had intercourse and then she said stop a few minutes into so so we haven't seen in new jersey prosecution under that theory in twenty years well i'm not sure about that i'd be happy to brief it pono that's her argument but the gist legally then why why isn't that a quick point to the re guideline where it can including where consent is not given those sound hard to distinguish because where consent is not given as i said in my twenty j letter is where the person is  because of the way this court and i think the fourth circuit the ninth circuit has interpreted consent is not given is it's either actually not given or it's the person is incompetent or intoxicated or something like that it's not where those are separate clauses in competence minor or consent not get it and looked at that way it seems i think you would win hypothetical nineteen year old female nineteen year old male have sexual intercourse in the the parents house thank you know i'm kiran ninety year old female who wants this to happen but just isn't her and she says yes in my mind i want this to happen and the police officer says did you do any affirmative act to give permission she's no i just laid there a new jersey law you're guilty so consent can you get it is a is a rarefied world of hypotheticals to imagine the situation i still think even that hypothetical sounds like consent wasn't given consent is irrelevant well not given in your hypothetical and that's exactly what the revised parent that agree that the revised language expanded and supplanted fifth circuit law to i agree to agree that the parent better go inclusion about consent not given necessarily means forcible specifically our court has said that expanded and supplanted or literalist cube yes and it's supplanted the viewpoint but amendment seven twenty two specifically says how it supplanted it it's supplanted to reach the cases previously like luciana rodriguez where the person was had a mental disability or the person was intoxicated or they were those kinds of things in this court and  corrado interpreted that way the ninth circuit has interpreted to mean that there was no willing acquiescence or the purpose of the person was incapable due to incompetence or intoxication so  person does consent the person can't consent can say well let's take it from the other side in her head let's take it from the other side because we know that for a phrase that meaning there has to be a way to disconfirm it right i mean you can't say everything is waiting you say well is there something that's not late and you say no everything's wasted weight has no meaning so let's take it from the other side under new jersey law there is no defense of consent you can put the person on the stand and you can start to go into did you want this to happen and the objection is that's irrelevant so you cannot have consent as an element i may be wrong but i mean again we're talking about one case and ts and when you actually look at what the court said there if there's been no prosecution under this theory the court really was just giving the long history of rape laws in new jersey and and it in a simple way of thinking of it correct me if i'm wrong it just said you know rape now will be like battery an unwanted touching there's no defense of well she implicitly asked for so all it did was bring it in line with battery case law didn't make some heightened lesser proof for the crime of rape than any other physical touching i disagree your honor i agree with professor of a favor i think his analysis is spot on that they find the reason i discussed at length m t s is because it was the decision that interpreted this statute there may well be hundreds of cases or wing case following n t yes i don't generally include cases in br that say the same thing that i mentioned i looked and i didn't find one i'm pretty sure you looked if you knew one now you'd tell me if i or if i looked and if i knew i knew i would tell you right but i was of the fact that you say i just don't put in hundreds of cases they're very good and well in plain error of you and given the law the very delicate long crime of violence it can't just be a hypothetical you've got to be able to point to the fact that the state ever prosecuted under the theory articulating because here what we're looking at is a disjunctive offense so we're beginning to hypothesize that sexual offense not through threat but coercion so we're imagining that world and we're going back twenty years to a case and then we're saying we've got this and magine you know she's in the hospital and she in her head may have consented but we can't neither of us can identify or hasn't or without more research and yes i know exactly when or under to say that is the case because the only common thread between the female in the mail is a lack of affirmatively given permission now with regard to the age of the case it's my understanding that that's the authoritative case and i would posit that if there's no case to overrule it then that is the state of the law not that we need newer cases to tell us it is the state of the law if it hasn't been overruled which is generally what i do i try to shepherd i see if it's been overruled that is the state of the law your honour's as i say in my brief and i won't bore the court with this but there have been many decisions under planer of you that ever versed under plain air without a case on point most especially the martinez case that reversed on plan as the court again a fight multiple prosecutions of lewdness when a child wasn't even present so so it we had a real set of prosecutions under this theory where you couldn't have harmed a child because he isn't even present the person is exposing themselves and there's no time like your honor i would just i don't want to bore you but it's the same answer empty yes no i'm not asking about the answer it's damned yes i'm asking if i describe correctly the martin is holding did they identify mult they did the color not only did the district court correctly apply the sixteen level unhandsome and here are two burbles new jersey conviction for attempted sexual assault but this court typically will not find error where housing addressed an issue indeed this court has refused to find a plane or even where an argument requires only extending existing precedents in similar just as it did in the cases cited in the government's brief such as land diverting in other posts but if it's inclined to examine this issue it should follow the ninth circuit's lead in mendoza so some of them on the plane or he is the martinez case and we've got a new jersey supreme court decision that stated what it's lloyds in their fourth new jersey has this aberrate heightened standard where you would be convicted in without this elevated notion of consent it would seem to be plain error according to the authority that would propound on its loan laws i just agree here there's a great martinez doesn't hold back i'm saying that plain error should not apply here because not only has this court not addressed it but there is a case that i probably should have twenty a j that recently came out and judge here it was on the panel it was a little bit different it's called montero that case with little different the statute was different the citation on that is two fifteen six four four five six six and of course i don't mean to just come up here and start talking about a different case but there are the court looked under a different statute the force or coercion and new jersey law and it had no quarrel with force and i can talk about that case a little bit more if focus was on the victim whether she had given her the most resistance and it was like it was looked at through that microscope what the victim had done or what the victim had done and so new jersey chronicles all of that and including that really what this is about is it is essential in a battery and then some so it focused on the modern meeting and that the victim is no longer put on trial that the burden to is not on the victim to  sentially prove that she was raped it didn't change the character of the underlying offense and that offense is that the defendant here in need under new jersey saw penetrated the victim and higginson pointed out there are legal imagination has no place in terms of the hypotheticals or what have you and but why by requiring this physical force or coersion of the jersey offense necessarily involve victims who haven't consented to penetration essentially there has to be a commission without permission so if you don't have permission you clearly don't have consent but it's a little different because as i up putting the victim on trial we look at the defendant reasonable person in new jersey talks about both whether the defendant or the reasonable person there was enough evidence to believe that the victim had given permission for him her the defendant to go forward if you will and the jersey talks about the delicate parsing if you will of the various and let's just say x and does new found a case where there's a new jersey conviction app on the theory that m t s stands for there will always be convert couper sion unless the victim has explicitly invited the intercourse coersion if you did that you would seem to be despite the language outside of what we think is a generic forcible offense even is expanded in two thousand and eight if i understand what you're saying no i haven't found a case to that extent but i think as i said i think the character of the new jersey offense for means true to sexual assault or sexual contact or whatever you want to call it and the legist what the new jersey court essentially said was the legislature intended to depart from the historical requirement that a victim actively resist force in order to prove she had not consented to invasion of her bo so again the victim is no longer put on trial the evidence can essentially be that the defendant penetrated this is victim without her permission using other forms of evidence moreover the guideline is not limited to just the lack of consent or invalid consent it says a forcible sex offense includes where there's a lack of contents it doesn't say that for forcible sex offense is where there is lack of consent otherwise it would be far narrower and as you pointed out they got the guideline is broader than that would you would your argument fail under the original gomez gomez decision well you said that it no longer are good in relation to the forcible sex of argue no what how that's defined a few well and so now coercion exists necessarily even when consent is not given well in new jersey you would lo to all of the facts so again if the defendant were to put to say put on some evidence to the extent that i had permission new jersey then requires the state to take the extra st but again it's commission without permission i mean that's how i've how i've the my phrase that i've coined how to remember all of this but if for example anon for the ninth circuit in mn joe was a the defendant had been convicted of criminal sex contact under four hyphen three b and they pared that statute down to find the defendant had committed an act of sexual contact by physical force or coersion which is the same language in dispute here namely to see one and the court had no difficulty in finding that to see one coupled with sexual contact which of course is less than penetration was a forcible sex offense and mr stossel is brief he made mention of the but what happened is there was essential mendoza one opinion if you will and a petition for a rehearing was filed and similar arguments have were made as to along the lines of what mr beer b not have any problem whatsoever finding that it was a force that this particular provision coupled with the sexual contact was a forcible sex offense and again the  which i can twenty eight j looked was looking at it under the elements tast and there the court had no struggle with the weber with with the force component and it was as i said under a different style sheet but it was new jersey and again looking at this force or coercion and what was interesting about that case however is the court said well we have you know forces an element but the concern here is coercion and so the court discussed the coercion and then concluded that some of the you know we haven't seen this case and you're posing counsel probably has more i know and i apologize for that i just saw that the other day and so i would need to do it but what was interesting about that me going ok but anyway that it was a little bit different because the court looked at the coercion and decided that in fact legal imagination had no place just as arguing in relation to our m t s in our particular statute h statute but it is a different subsection in it it's not good on this section just so we're clear but it is the new jersey statute but it's it's at least a month old there is out there but to the extent that it's not in the brief and it's new you certainly can have an opportunity to you know respond to it if you will and in doing it i was like that thank you your honor and just let me say that i'm not talking about monitor all of it i am talking about m t s but to the extent that montreal is not about that i just want to point out to the court that m t s is specifically on that subsection number to make sure of mendoza to is i responded to the government's brief in the cases they cited so i'd like to have the opportunity look into what mendoza two is number three i just request that you carefully consider the twenty eight june letter i submitted on the meaning of amendment seven twenty two and of how this court the fourth circuit and the ninth circuit have interpreted the meaning of legally valid consent or not legally given because i think j you may do so now to be clear twenty a j is to cite a new case of cases been now it is abused by lawyers wholesale about filing cases that been on the books for young