room i discovered a case issued by the court on july twenty second us to be grad walked and i believe that that case addresses the issue as to whether or not the conviction issue it took the definition of crime of violence there is so that also applies to career federer but as both parties breach to this panel in the supplemental greeting that was filed there are two different definitions between those guidelines and it's the state of the obligation to prove violence threats coercive some sort of act without consent so the own californias own law show that what our client was convicted of here simply was done a crime of violen ground law you could have a situation where somebody under this particular california statute the victim has to be under the age of fourteen you can have a high school senior at some very likely that is true either but it is it is possible and under the taylor categorical approach which would govern here because the modify approach really isn't available because if you look at the charging documents they basically adopted the accept it did you know about it before this morning i didn't know about it this morning before this morning i didn't i have not had a chance to read it yet although i think we had a very strong argument even without that case that this is a crime of violence based on the potential for danger to a child anytime a child is sexually assaulted with respect to mr rose hypothetical could there be a brushing and then later a and enhanced matua career founder level i think that person might have an as applied unconstitutionality argument but that's not the case here the case here is that mr peoples in fact took advantage of twelve year old child and did so in the very way that has suggest that attacking a child in that way does not present a real risk of injury even psychological or specially psychological injuries so what i would prefer to talk about this court has other questions about that is the blatantly issue because i don't think that even if the supreme court were that it was all the booker case and in doing so essentially uphold emmeline i don't think this is a case that needs to be sent back consideration any the fact of any previous conviction it's no doubt true that the district court would have to make even under those circumstances there will be times when the district court has to make a determination of how to class characterize a prior conviction and that's certainly the case here but i don't think anything in blakely or emmeline or printing suggests that the court is simply incapable of making factual determination about what it means to have a prior conviction or whether or not a prior conviction counts in a particular fashion so for those reasons i would suggest that there is no blakeley problem here even aside from the cases that seem to for him our current state of flux are weighing against the government of course our basic position is that likely doesn't apply to the federal sentencing guidelines documents if that's the sort of factual determination that we believe blakeley deviling have now taken away from the courts and switched to the jury and that's our position it's not just the facts of the conviction we're beyond that question