i would bring to the attention the fact that in my case he alleged victim was seventeen years old and about three months what the government is trying to do stay right now specific age of her why is that a difference that should make a difference to the outcome here you want to make a huge difference doesn't that incorporate into it an element of the use of power or violence within the meaning of our past cases in other words if a seventeen year old it wouldn't be a crime the fact that authority yes that that's certainly would be yes but when you get to be the age of seventeen that i will florida is no longer the same thing as when you are thirteen then let me ask this as a matter of just intellectual approach here since we're dealing now with a guideline i don't think we do the modified categorical approach we simply do the categorical approach meaning that in all we have the conviction for statutory rape we look at at well the statute encompasses within statutory rape that she could have been seventeen years and eleven months and he could have been twenty one years and eleven months there is to say that she's under the age and he's four years old dealt with very young children then we have essentially i want you there answer might meet my maybe this question is better asked answered by the government alas the government agrees also and that is to say if we say that a statutory rape conviction when the victim is seventeen years eleven months and the perpetrator is twenty one and eleven and a half months which qualifies under the statute and we say that that does not constitute sexual abuse of a minor does that mean that it cannot be applied as a guideline when the facts in fact are different do we do we get to look at the handling facts of the actual case or do we look at the full scope of the statu the victim and the age of the senate then you have to get into specifics in other words let's assume that you have a seventeen year old girl who's very slight very small woman  violence as the court will note from the judgments which is included in the stuff of mental excerpts of record at one on october fifth two thousand and one the defendant pleaded guilty to tennessee statute section thirty nine d thirteen excuse me five or six statutory rape statutory rape is defined as sexual penetration of the victim by the defendant or of the defendant by the victim when the victim is at least thirteen years old it notes that a minor is a person who is not yet a teen in the age of eighteen therefore categorically some of between the age of thirteen eighteen is is a minor and this court has already noted that sexual abuse of minors a crime of violence no i understand all that that is to say it's quite clear that abuse of a minor within the meaning of the guidelines now i guess i'll repeat the question rather than simply asked you to respond of the question i asked earlier but it is the question is as follows as we analyze this case do we look at the specific facts of this case or do we look at the scope of the statute that is to say do we apply the modified categorical approach or purely the categorical approach say one more time in a different way that is to say that  seventeen years and eleven months the victimizer is twenty one years and eleven and a half months if there is not sexual abuse of a minor you lose yes ok there are no other questions from the i'll take my