good afternoon your honor my name is myra sun i represent thomas shop my client was convicted of one count of violating title eighteen united states code section two thousand two hundred and fifty one under prong a of making videos of of a person under the age of eighteen and gauged in sexually explicit conduct he had sustained two alaska state convictions under two separate case numbers for  offenses with elements that essentially involved in general him being a person of a certain age over a certain age to engaging in sexual touching in those kinds of acts are described in the statutes of persons under the age of eighteen and the court will know that section two thousand two hundred and fifty one dollars consists of four sections a b c and d that talk about conduct that falls under the heading of sexual exploitation of children subdivision e sets out sentencing penalties sentences penalties and there are two levels of sentencing penalties the st is for a twenty five to fifty year range for a person with a conviction quote unquote under the laws of any state relating to end quote and then there's a list of offenses and they include the terms abuse which is the term that this case involves sex trafficking and child pornography the nd level of sentencing the nd tier of sentencing is the thirty five year to life range for two or more convictions under and the definition is different the laws of any state at least as pertains to state law convictions under the laws of any state relating to the sexual exploitation of children now the government claims that my client's convictions fell under the higher one the district court quoted was from the plea agreement which set out the higher range was i think quoted also for the wrong one well the language defining his convictions tracked the one conviction right as i mean the and but the sentencing range the district court i told him ok so what i'm wondering is whether that circumstance alone i e that he was never actually admitted to the conviction that was necessary for the higher range and that he wasn't found to admit it to the or to have of have been subjected to a higher range i mean why isn't that the end of the story at least for now he just never admitted to it i think you never admitted to it except to the extent i think the government is saying and i'm not going to make their case for them that saying that his range was thirty five to fifty years he was admitting what the government says which is that all the convictions just i'm seventy said something else right he's did specifically say something else and if the court wishes to decide this case on that basis i think that's right that's something i didn't say in my briefing but it could well be correct in that we do there the back to the district judge to decide the question as to what the definition of exploitation was that's correct too because that wasn't really ok well if i had i did ok but i just but mr feit by that's why we're worrying about this when he didn't even admit to this i think the court might know that i got this case was filed by previous counsel in this was the issue that was presented we talk about and i'm going to your honor at this point i'm going to reserve i think two minutes for rebuttal if i could i mean about five minutes now we think that the textual interpretation of two thousand two hundred and fifty one supports our view which is that state convictions for state law under state laws relating to the sexual exploitation of children is a different group of crimes then those under which my client sustained his state convictions and says that's a very coherent argument the only thing that gives me pause about is the argument if the government makes about the federal crimes and once you did with regard to the higher range which are certainly broader then the sexual exploitation of children in this subsection or in this section and in fact includes some crimes that are new children that is true and well and my response is this your honor when we look at the list of things in the nd tier prostitution and sex trafficking offenses this case is not one of those but i think that if someone ever had that case that that might be an issue in which you could say that involves sexual exploitation of children is the definition and that th involve visual depictions or the creation of visual depictions are the rape in the military statute for sexual assault and i think that those are exclusively federal those are defined as federal what we're dealing with here is  state laws relating to a definition that i think is this federal crime sexual exploitation of children so base your basic argument is that this section has had a sexual exploitation of children it joshua sexual exploitation of children as it is it's congress saying what it is to us very clearly what about the relating language the related to very quickly what i think is this it the question is whether it calls for any kind of break with the categorical approach because i think we'd agree that under the category of pro choice my points prior convictions are not do not meet the standard the issue is this did congress make a definition it is a little circular to congress make a definition of what sexual exploitation of children is as opposed to saying there's some generic definition that you apply broad meaning broad meanings to that you apply an expanded meaning to because there are many cases the government has cited that say that that sexual abuse is sex is a kind of sexual exploitation and i say we say your honor that the context is narrower both other i have seen the government's twenty a j a letter i just know your honor that devor is a case in which the prior convictions fell under washington's  think don't call it that but they involve the creation of child pornography and they don't involve what my client did which are these touching offenses that are denominated sexual abuse are the chapters of our c w are different  thank you new and you've saved a little time chops argument boils down to one simple claim that in two thousand and six the last time congress modified twenty to fifty one use enhanced penalty provisions based on prior convictions in a situation where multiple circuits had already held that sexual exploitation of children was a term defined by its contemporary ordinary common meaning as taking advantage of children for sexual purposes when they are changing this section in that landscape they nonetheless chose to imply through a variety of silence that actually they meant sexual exploitation of children was only production of child pornography not by defining sexual exploitation of children in the definition section of chapter not one can not by if they have another statute saying or a crime under state law that would have been the federal crime of sexual exploitation of children if it were convicted on in federal jurisdiction not through any other explicit language but instead by broadening the predicate offens federally for a single conviction and narrowing the predicate offenses of state convictions for a single connection the nd one is just believing or it was all right but mr chops argument has to imply that in two thousand and six when they did that knowing circuits had said sexual exploitation of children is taking advantage of children for sexual purposes they didn't choose to alter that they just chose to alter what they meant for a single predicate which that is that you saying preceded the two thousand and six i was aware of that that would be from the eight circuit united states versus sanchez from two thousand and four and from the rd sic circuit united states versus randolph also from two thousand and four i don't st of all legal sense here and moreover the dictionary definitions and black's law dictionary definition which you think would be the most relevant one does in fact treat sexual exploitation of children as many  do as meaning something other then for sexual gratification prostitution is pornography it's things that seem to have some additional element other than  exploiting this the children sexually rather than using them sexually in a seems to be a different meaning so was where do you get this common language from well starting from the fact that sexual exploitation of children is not a traditional offense so but it's an offense in twenty five states for so meaning this as i understand it i believe that is true that there are many states there are no states that line it that way have children offense that doesn't mirror this one right that's right but that's not the way the pretty persuasive doesn't it as to what sexual exploitation and we have the black's law dictionary and we have the dictionary meanings at least alternative ones and it's just a strange use this if you mean sexual be used to say sexual exploitation why say that well the black's law dictionary definition actually goes on to say or manipulation of children which is what any sexual physical sexual abuse of children crime would be and that's the statute itself which is headed sexual exploitation of children right what sexual exploitation of children is one would think well the th circuit has held in both the sullivan and believe it was the nereus case that the definition is not tied to the federal crime this is dealing with abuse statue and the same subsection there are not i mean here you have a subsection called sexual exploitation of children a challenge to a bunch of things that is sexual exploitation of children and then it says anything related to sexual exploitation of children ordinary person would think of these we just we were just talking about well that's one that's got an odd quirk there which is that terms production of child pornography and they went and defined those in chapter one hundred and ten in the definitions section four they would apply to these crimes under the reasoning of sullivan and serious so when they wanted to say production of child pornography they knew how to do it and they defined it they didn't say sexual exploitation you're talking about this in in the st part of the sentiment the st part of the yes it actually says production position receipt mailing sales distribution shipment or transportation right so they are discussing production of child pornography using those terms not sexual exploitation of children and the history here lends itself to that in that we had sexual exploitation of children beginning in the earlier versions of the statute applied to both the single predicate into predicates until the two thousand and six amendments and that's that framework where the interpretations congress we've been aware of when they last address this were that sexual exploitation of children is that much broader term question yet isn't it true that if they had just said the sexual exploitation of children one of them clued position receipt mailing sa distribution ship or transportation necessarily i think it would have those would still be crimes that involve the taking advantage of children for sexual purposes i'm asking you in terms of this subsection that w sexual exploitation of children of that list that's in the st part of the statute it would cover projection but not the rest i'm not sure i understand your question exploitation would include this situation where someone produces child pornography by say filming consensual sex between two hundred and thirteen year olds who don't know about it and the circuits case law regarding sexual abuse has required some sort of lack of consent or aggression that would not necessarily be there for all of the items covered by sexual exploitation but which it has been found to be an essential part of sexual abuse sexual exploitation the you're saying that author that's an error you just  gave us is doesn't amount to sexual abuse because there is no knowledge by the victim's right there's no lack of consent or acts of aggression in that situation i thought children can consent but there are kids all from this circuit saying that when you have sexual abuse you need a line or lack of consent of a minor of a minor perhaps my example of under thirteen would be incorrect i think it's it's the are some states that have statutory rape covering those under eighteen rather than younger and it's in that situation of older teenagers who may not know that they've been exploited in that way what is your explanation for why these two parts of the subsection used different bleakly different language because what what congress did in two thousand and six to the st subsection for a single prior was to both broaden the list of federal offenses and then specifically a numerate the state once and i say brought in because they added that sex trafficking  yes it is there they're saying we want to cover sex sex trafficking which doesn't involve minors on the state ones but they want to be more specific about which state sexual offenses they're going after but for those with two priors they're still comfortable with that broader term of just sexual exploitation of minors and what isn't sex and sexual exploitation of children that isn't aggravated sexual abuse sexual abuse abusive sexual contact  trafficking production position receipt mailing sale distribution shipment or transportation of child pornography is there something else that's in sexual exploitation of children you know i have not done and search i have not done a search of every state's  sexual abuse of children related crimes i'm not sure if i did nothing obvious nothing obvious certainly take your point or your i understand your argument that sexual exploitation include not merely the child pornography that exploits the child for monetary purposes beyond sexual gratification to get away with time but it also includes abuse but it seems to me that when somebody says sexual abuse that certainly suggests to me that there's been some physical contact or relationship between the defendant and the victim for the gratification of the defendant  exploitation means something else problem not just in addition i think it just means something else and that's where you and i have to respectfully disagree the generic definition both in black's law dictionary language of the higher range mandatory minimum and the court didn't find it so why isn't that the end of the story here because the defendant did admit to the language that that follows his state of alaska convictions he had four convictions for sexual assault in the st degree under subsection that required sexual penetration of someone under the age of thirteen when he was over sixteen and then and met that that was such that that was within the category that would give him the thirty five years to life it in and get that right that i mean that is why should he lose you well that would just be the legal question of are the state of alaska wrong language they were both in agreeing to something else which you know may prove up the fact that in ordinary language the things she  did don't really fit was actually supposed haitian either the ascribed it to be sexual exploitation so i guess i see your point is why didn't the district court handle this or why shouldn't the district court just handle it now right and what i would point out is that because the united states is asserting that sexual exploitation of children includes the physical sexual abuse of children items that mr shop admitted to in his plea agreement because that is the case for you know for the reasons we've discussed he did bit  conduct that qualifies for the the two prior and handsome and for the thirty five year life that he was sentenced under and just one note about that de vore case from a week and a half ago it did not address the issue of whether sexual acts is an unpublished decision and we don't are just precedent and we really really don't i mean if we start doing that we really can't run our court and i don't want to suggest that it's presidential i want to look at it and believe it but i want  know what was done there and that was simply acknowledging as the usual practice in the th circuit that for a nontraditional crime the generic definition under the categorical approach is it is come upon by looking at the contemporary common ordinary meanings of the terms in it and that is what was done in the divorce case ok thank you thank you save some time i have the cases that the government cites smith and randolph and there are a few others that they cite those  miliary and where we and and reinhart and they are governed by rinehart which is law in this in this court about defining relating to that this is not what the government was just talking about but i just wanted to amplify on my answer about relating to and then the other point that i had was jermyn the court that we can't have a definition of sexual abuse and a definition of sexual exploitation that merges them completely when those terms bleed into each other when congress used two different terms that have two different dictionary definitions we cannot interpret them as meaning the same thing and i think that is what the government is saying they mean they mean that abuse is always sexual exploitation or at least abuse under these statutes alaska statutes is sexual exploitation of children and alaska is one of the states with a crime called unlawful sexual exploitation of children that involves the creation of depictions thank you thank you very much thank both sides for your he