morning your honor is matt campbell from the federal defenders of eastern washington in idaho on behalf of calvin clarke and i'd like to try to reserve two minutes for rebuttal i like to turn the court's attention to the first issue whether the district court erred in finding that mr clarke's prior state convictions qualified as predicates under eighteen u s c twenty two fifty one the primary or committed by the district court and repeated by the government in its briefing is in failing to define the federal generic offense of quote sexual exploitation exploitation of children refers to production of child pornography under eighteen u s c twenty two fifty one and because the district court failed to properly apply the categorical approach remained as necessary so if it were if twenty two fifty one were the junior crime just as you argue what it's still an issue of law as the words we don't have to send it back to the district court for fact finding so tell us why if twenty two fifty one is the purposes of your argument that they are the generic tell us why the washington crime doesn't match them categorically yes there are it's because the washington offense essentially if you break down the federal offense of child the federal child pornography and the washington child pornography they both ultimately use the term sexually explicit conduct however they define sexually explicit conduct differently  and if you if we look under the definition under the r c w nine sixty eight zero eleven paragraphs the f and g specifically define sexually explicit conduct to include things of children in twenty two fifty one and b just uncover possession of that is correct so why isn't that the reason i know why you make it more complicated than that well i'm certainly not trying to i think the court could clearly find that if twenty fifty one is the generic offense the washington possession convictions don't apply but well i mean you still have to be able to relating to but but pass it to the core of what sexual exploitation of children is it doesn't cover it dea ls in production not possession i agree with that one hundred percent your honor perhaps i was skipping toward a potential application of the relating to language and saying even if the court wanted to use the relating to language to say that it may involve pornography offenses that the use of relating to twenty to fifty one would go beyond rights under the clear question in the case is whether the use of the term relating to get you from production of just simple possession correct now you know you you don't you don't contest in this case i take it that the single offense and hands me replies oh no we do you do well what how do you get around the issue i think that's correct that the analysis would be what the sexual exploitation of children mean it is our position that it has to be read in party material with the rest of the statute which requires that that phrase you never said  talking about here but your brief was way more complicated than that i'll try to be since you're on it but clearly it is the title we think it has to be read in part materia so then the only question is what does relating to  that i think that's correct and i think particularly in light of the fact that the single conviction and handsome it was expanded in two thousand and six by the adam walsh was changed well it was changed but i think it's abundantly clear from the legislative history that the intent of the a something not in federal statute just for another generic offense doesn't have to be a federal statutory violation if we said for example the generic offenses burglary we would look to the federal statutes to see how they define burglary we look at the generally accepted definition of burglary why isn't why isn't possession of child pornography the sexual exploitation of children you're on i think there are several reasons one we've already mentioned is that the term sexual exploitation of children is in fact the title of twenty two fifty one so in order to say but to tell it's a total of the of the entire statute which includes a number of offenses because it's hard to type of the statute the statute has a title and the statute doesn't include within it mere possession therefore sexual exploitation can't be understood as mere possession i think that is one of our arguments i think we could also look at the title of the entire chapter which is sexual exploitation of children and other and other abuse i may be slightly modified to also this structure where the  difference between the two parts of e right were wrecked the second portion is that we have the single predicate and multiple predicate which are distinct and different the single predicate was amended in two thousand and six as part of the adam walsh act all legislative history demonstrates that was an effort to more severely criminalize those punishments so if the single predicate specifically delineates various qualifying predicates that sexual exploitation of children must be read more narrowly so when we remain did this court not the court reminded the first time with instructions to the district court to conduct the analysis in light of two cases yes how did those two cases support you well i think maloof addressed the relating to right and their relations and read to relate said the relating to is meant to be  to language to the breaking point right so and i agree we need to find that property when the league is me problem is that as a matter of common sense i think is judged by said first time through in this child pornography is the sexual exploitation of children and that's correct and so if we're and militantly says come at this broadly so tell me how i get around that i think that the again with the understanding that sexual exploitation of children from our perspective must be read more narrowly than the single predicate enhancement the narrowing principle that i could perhaps identify would be that they're relating to language would instruct the court or the parties to look to the list of federal offenses that are covered as examples of what relates to essentially twenty two fifty one is possession of child pornography a federal  it's not in this not in this city and that's why i'm walking around in circles with you to some extent what you're saying is you have to look to federal offenses the federal offense i think you have to look at is twenty to fifty one correct and i'm say why not look more broadly since there are there are just statutory offenses that include pornography but i should child pornography and baloo he says look broadly that's correct but the way i would say could apply in does it have to be i think it is it has to be because number one that's the consistent use of the term sexual exploitation of children throughout the throughout the statute it's that is a consistent reading with the title of correct but i should say this court got solomon wrong well i think this court got sullivan wrong but that's not that's not something that has to be resolved for purposes of this case because sullivan addressed the what i believe it's obscenity it's chapter one i'm wondering as to any of the other sections referenced include position chapter seventy one chapter one zero nine a or chapter one seventeen or chapter nine twenty of title  for the state laws coverage to be at least as broad as the federal laws coverage so i'm trying to find out what's in the other federal laws that are covering check well the first reference is under this chapter that's chapter one time i know that i would know the rest of them chapter seventy one i believe is obscenity chapter one o nine a is the sexual abuse chapter chapter one seventeen i mean that we would have  first part what's fifty nine one fifty nine one is sex trafficking of children ok so but they are what are your point since has sex trafficking of children isn't in the second point that's correct and that was relating to the idea unlike our usual categorical pro choice the federal statutes here do not require us to find it just a conviction is categorically the same as any particular federal offense but only that the state convict is one categorically relating to such federal offenses are because you're using your position is that it has to match a particular federal offense twenty two fifty one a or b my position is that based on the specific language of sexual exploitation of children based on the legislative history know i know how you get to know but i know you get your position i just want to understand what your your position is that you in this case you prevail because there isn't a categorical match for a or b my position my position or these other or something in these other statutes that we haven't yet explored you think the federal generic crime is a or b twenty two fifty one a or b you know yes well for the federal generic i'm looking for the generic or i think the generic crime of sexual exploitation of children is twenty to fifty one a that can't be it has to be a statute as to the crimes relating to that well exploitation of children that's the fruits of the exploitation well as imply it isn't why don't we approach this as an ordinary statutory interpretation question which doesn't necessarily mean that we just go into the sky before we look at the text context in which this language is used in this church so the fact the somebody walking down the street might think that pornography is sexual exploitation of children which i mean possessing i mean the notion that possessing it is sexual exploitation of children is not self evident and the sense that it is the result of sexual exploitation of children might foster sexual exploitation of children but it probably had self is not sexual exploitation of children and if it wasn't for those that phrase relating to i think that was that's not where you start from i mean there are two problems here the first problem is what is sexual exploitation of children the second is our part is relating to then expanded but you started in the first place and that's why i was asking you about the first place reisa starting with that why this section and why why don't we just turman what sexual exploitation children is by first of all starting with a statute that tells you what sexual france and they then wrote sexual exploitation of children is and then and you're saying well they were just stupid they didn't realize that possession itself is also sexual exploitation of children well i also think that they list off a number of federal and state analog crimes that the statue could also be read to say relating to sexual submission of children the second clause is it is a shorthand way of saying well that would be a really odd way to write a st because if we know that that is that the statute originally read with sexual exploitation both sentence phrases and they rewrote the first one they didn't write the second one they must be doing something i think they forgot to rewrite the second one frankly make some kind of sense to think that if you're going to need men and even more chilling and extremely high level that you want particularly bad guys yes and this individual would certainly qualify as one of th particularly bad guy but that doesn't answer the question well is there is there an argument that the second clause to the two to two conviction hansen is meant to be broader than the first one i think there is i think that's exactly what  rather than list offenses it said any offense relating to the sexual exploitation of children and that is the analysis essentially that the four circuit performed in mills in the most they said the government's brief if they centrally say it is broader that second  broader for these types of reset of this we only have we only have one conviction we're going to require it be for something specific that we've listed if you've got to anything that falls in the general anything that relates to the sexual exploitation of children will be sufficient that's what gets back to that and i know just person doesn't want to jump to the relating question i understand that because we've been so programmed to think of the categorical approach in terms of taylor in the in the aca cases in the gun cases the johnson case as well but what we've already said in the supreme court is that i take it that when you say relating to we don't look for a specific we don't always look for a categorical match to a specific federal statute for your colleague says quite correctly it doesn't mean we just get to say what do we think and so how do i conclude i read judge bay's dissent is quite good but how you tell me why you think we should conclude that possession mere possession of child pornography is sexual exploitation of children or me as i said before it sounds like it george burns and says well it doesn't sound like it so much so sounding like it may not be the way to get there tell me what tell me how we get there with regard to the second prong with regard to why  the way it because it does relate can't take the relating out of the sexual exploitation club process as relating to the sexual exploitation of children child pornography is definitely the sexual exploitation of children to snuff the wait a minute we've all pell the statutes time and again because they're designed to deter production yes and child prior for release the sexual exploitation of children because child pornography is the fruits of production of child pornography you get child kicking a more serious crime and you're saying this much less serious crime but the only difference because it relates to it only way a little bit it is because of that realty language i'm sorry what the only way i'm able to do that i means that when you look at the definition of sexual exploits what i think is the definition of sex with explanation of children to age fifty one you don't need to to cover every jot and tittle of that so if for example the men's rail was somewhat different or some of the elements of how you were trafficked children were different that would be covered but something a sort of a different level in the higher entirely different level in the hierarchy of of evils here and a lower  one is now dragged in that i'm dubious about and i'm even more dubious about it given the fact that position is specifically in the single conviction part and not in this part i guess my response to that would be  is serious the it's the culmination of the sexual exploitation of children that is what the what the production of child pornography gets you it gets you those images that is where they come from so by that definition they not that we need to know what's in the recidivism and i think i think because of that language in there that were laid into sexual exploitation of children the possession of child pornography a conviction for that offense relates to the sexual practical cases before this court the evidence of where this court is there which is that again and again and again in the production of child pornography cases where they have proven they're producing child pornography in the in many of the assault cases they are producing child pornography how do we cabin this how do we what what's the outer limit is it just language which is i think what you're saying just sort of the common parlance of the common understanding i think is that and that's what this court didn't sullivan of this court didn't scenario is  purpose of the recidivism statutes so you know i want to go back to this for a second and i don't want to it's the it's the chap it's it's the previous clause two or more convictions under this chapter is a whole bunch of federal laws we agree he doesn't have convictions under those federal laws is the offenses for which are the offenses for which he was convicted categorical matches for any of those federal laws they are categorical matches under the sullivan analysis when you get to use the word y that's and that's my guess that's my and different interpretation of the statute would say you could have been charged in federal court with these crimes and convicted but you weren't you were charged in state court and because we're reading sexual exploitation depending on how we read sexual exploitation it would mean that you could have committed a generic federal offense listed in this first group but you wouldn't but it wouldn't be eligible for the enhancement because you weren't actually convicted in federal court i guess you could look at it that way it was i my question is why isn't the generic crime here one of those well these are the this phrase suggests that those are crimes relating to the sexual exploitation of children but it does have that modify under the laws of any state relating to the sexual right i understand but my question is why doesn't that mean one way we can determine whether a crime under the law of any state relates to the sexual exploitation of children is to look at the federal crimes listed in that first phrase for which you would get the enhancement i think that i a proper way to look at the case so then my question is for both of you isn't simple possession of child pornography a federal crime under those statutes absolutely ok absolutely it absolutely is to would be the language that we use to then pull in the other federal statutes and if we do that we still need a categorical match mouli still says we need a categorical match to something it may categorically relate but we still have to use the categorical approach it doesn't jettison it and the definition of so neat a perfect match is what it says we don't as are we near perfect match to a federal statute right but we need to categorically look at it and if we categorically look at made that was my question then don't you get to relating to but what i understood the court to say is if we define sexual exploitation of children as as essentially production of child pornography we use the relating to language to then encompass the federal offense clarke is submitted and we'll go to reynolds first the state of washington