unique the statute is this essentially unique in the annals of state statutory rape statutes which loosely call statutory rape statues in the sense that there are these radiations based on age determination there are the simple threshold issue use of intercourse no marriage and a minor in this case decide to find that somebody under eighteen years old in this particular subsection there's a three year discrepancy between the victim and the perpetrator and in this case and based on the analysis i think under ruiz which you say it's diaz rather which is a sentencing case when we construe whether states can achieve what the federal statute rather in ruiz is a aggravated felony you get that you have to look at the statutory scheme you have to look at the legislative history you have to look at the whole background of the statute to determine whether it rises to the level of an aggravated felony as a crime of violence using the diaz type analysis this this particular offense is on the table as a wobbler which is rather unique also unique attached to the statute to try to achieve that social goal is there any significance to be gained from the passage that indicates imprisonment in a county jail not exceeding one year provision which the government and i believe the immigration judge sustained it was not there was a sixteen v and then in order to be a aggravated felony first of all you need to have a felony and if it's cross reference we have to use the federal standard for colony and it granted the statute does say with the sentence of one year or more however to get to that point we have to have a current and i have that has to be a federally defined kelly i the only  find in the criminal code eighteen u s c would be three five five nine five through six which essentially defines the felony as being more than a year under subsection five at the minimal felony sentence and a misdemeanor is one year or less is the language used in the sixth of section and with that in mind and turning to the analysis recently and so there us in several other drug related cases c in this case we have a one year jail term as a with a grant of probation probation put on for five years the probation is run necessarily because he was put on probation i believe was october twenty first one nine hundred ninety seven at this point in time there's no judgment to impose or suspended sentence to impose it's been a one year sentence and on the paper and that's what we're stuck with unlike the government the government argues that you can look behind the statute when we get through this taylor analysis that we have to apply we can only look at the state piece of the statute itself and the conviction record if we get to that issue you and i believe we do in this case when we turn to the substantial risk factor seventeen not a spouse sexual contact or intentional arousal which sounds very much like our statute however there are some of the defenses that aren't mentioned in the in the decision and those are the probably defenses shifted back to what the met which can be met under two sixty one point five c on its face then there's no there's an affirmative defense so it's not a crime i'm scuse me i mean you've got an affirmative defense if you're charged with a crime either so i think that takes that distinction under that texas statute that is considerably it's not mentioned in the opinion and if the circuit but i think it's a significant issue that it wasn't addressed for the permanent plants in this case if you're less than three years my friends no that would put you in a different radiation if you were less i understand i believe if i'm not mistaken the b subsection addresses three years difference over under it's a very confusing please the court i'm joshua processing for the attorney general i'd like to begin by noting that there's nothing unique about this statute it is the statute is the subsection two sixty one point five says the section to which the inherently involves a substantial rests the physical force may be used and of course under the president particularly the instructive case of philosophers or vera there is and considering the t review here to determine whether indeed on the face of the statute and the statute that the court's review is limited to is to sixty one point c which is where there is unlawful sexual intercourse where the victim is three years or more two which is one hundred after third the court states as follows with respect to a statute that is almost identical the court states we think it obvious that such crimes typically occur in close quarters and are generally perpetrated by an adult  upon a victim who is not only smaller weaker and less experienced but is also generally susceptible to exceeding to the coercive power of adult authority figures and this that we believe stinks analysis that which your response to his my response your honor is twofold number one the fifth circuit mentions nothing about an affirmative defense and in fact doesn't analysis based on the risk the forced may be used on the statutory definition which entirety of the affirmative defenses available for that fifth circuit statute nor should the court consider them the question is does the analysis speak to the statute in this case and we think that it most certainly does younger than the perpetrator we know that in every case the perpetrator will be at least twenty years old and the victim will be seventeen the court in its categorical analysis or in this case it's it is a slightly modified in this case and he has never raised as an issue or challenged the question of whether this would be an actual if there was the correct risk involved of some stand of force that that there's any question about whether the time he served would render him outside of the statutory definition as a crime of violence and so we would know that with respect to back that issue has been waived and he has failed to  id issue i would note that i disagree with his assessment that the court should not remain on the case if it finds that this is not that it has jurisdiction and that this is not a crime of violence therefore the proper recourse remedy would be to remain and under ins vs been sure of the supreme court decision to allow the board of immigration appeals to determine whether it's appropriate to send the matter back for hearing as to whether this crime because we know he has a conviction and he served a year wood case in this court and the raise cost roe case in the rodriguez case what is always present in this case and that is the disparity between the age of the victim and the perpetrator as well as the relative coercive power of the adult perpetrator as i mentioned the victim here is always seventeen or younger and the defendant or the convicted is always three or more years older fear of the record is that we don't know the ages of the victims of these at least know she is no more than seventeen or on or if she is seventeen or younger and we know we do know although it's not proper for the courts consider it but it is worth noting that the that the petitioner was forty two years old at the time he had a lawful sexual intercourse with th young woman and again that and i think that speaks to the general risk of fear again we submit that you know this is limited to the statutory definition the face of the statute however merely being able to env invision a scenario under which there is consensual sexual intercourse in some cases does not speak to the the general risk which is inherent here for the reasons the fifth circuit notes i see my time is about up and unless the co within the parameters of the affirmative defense then you've got a defense you walk basically it's it's quite clear it's a comprehensive statute and so it it's in a sense by raising your time has expired the case just argued will be submitted for decision and we will now hear argument in united states versus