and seven this court dealt with a similarly structured statute and found solicitation was not covered there the court found the structure of the statute there was clear and found that the plain language excluded solicitation court said simply is not on the list describing in applying that holding this court and label this year two years later said the car not a drought so help as follows quote where a statute listed some generic offenses but omitted others the statute covered only the generic offenses expressly listed what do you make your bearing on long past that seems to be the only sort of change of direction that might affect our analysis here i think that crime involving moral turpitude for the purposes of a particular statute and that's at the end of the case and that's not the statute issue here more importantly in bargain lopez as we've discussed in our briefing the court distinguished  statutes and so we think barragan lopez certainly doesn't indicate a change of direction with respect to the long standing rule that has been approved of repeatedly by this court including the court sitting on from those offenses do not are not reached by the statute that's correct because of the way the statute is structured into how it again tonight it's unfortunate in my view that congress uses the term moral turpitude because that can mean anything and then our quote of said a lot about that problem the standard we've got to go forward with that how is that something like solicitation to rape and murder a child how is that not a crime involving moral turpitude to stop the sentence there before you even get to attempt or conspiracy that along why would not be a crime involving moral turpitude well your honor i think what we need to ask is what's a crime involving moral turpitude within the context of this statute so in a general sense with something that's  precedent and we think that there is reason for solicitation to have been treated differently i'd like to point out under arizona law and we've cited the statutes for it conspiracy is categorized and punished at the same level as the substan you passed the bar exam for california which is where i was license once upon a time there was a moral character examination and if and if i had been convicted of soliciting murder there would seem to go that would be go to my moral character moral turpitude in some respect now maybe i didn't maybe i was caught before it actually went through i was a sting operation and i was i was i was stopped but and you seem odd to me that that congress would pass this law thinking that was different in terms of moral turpitude or moral character can you point to anything other than the arizona laws anything in this in this statute that congress passed suggest why they would do that differently so your honor i think there's nothing in as both parties agree as both sides agree there's nothing in the legislative history that's anything about this so this is a situation exactly like that and quite out of toronto where there's nothing in the legislative history and what the court are properly made to congress and not the courts and this is exactly that sort of situation we believe given this court's again longstanding precedent for our not drops on  the court rebecca hofburg philips on behalf of the united states attorney general i'd like to start by saying he says we need to comply with two decades of president we need to comply with three decades of president and that's because in mc now in this court said that statutory text essentially identical between this statute and the one we looked at in corner that isn't included crimes involving moral turpitude included it's included conspiracy did not mention solicitation correct that part is correct it's written slightly differently but yeah this essentially the same it's essentially the same to the extent that it expressly includes conspiracy in attempts and leaves out some research about solicitation that silence should not which i also have trouble saying it in full is actually quite faulty and numerous cases time and again have found that congress doesn't spend as much time as we'd like to think thinking about what words they include and what they don't as i mentioned in my brief even where recognizes that you cannot overturn court not zero and we're not asking you to i one i want to say that this can be decided completely consistently with core not how the core not a court said in order to disregard plain meaning of a statute in compas in conspiracy an attempt we would be required to conclude the result is absurd or would lead to internal inconsistency that's exactly what we have here but it's no different than the statue you think or not or i mean it would have been i mean there we explicitly sa not absurd congress could have had a reason for it and it's not up to us i mean my question she really is similar to what i asked in the previous case if we find the wording clear what difference does it make you fully disagree with the hear what the government's contending is essentially that the use of those terms is superfluous because they're already included in the crime involving moral turpitude definition so you can't give meaning separate meaning to those words without st saying a crime involving world does not include in quick fences so basically the provision covers any crime except in quick fences except attempting conspiracy so that would be a very strange way for congress to say we're excluding solicitation especially because it expressly excluded purely political offenses as judge jones pointed out it's right there expressed in the text if it wanted to exclude something it you know exactly how to exclude something here if you if you read the words the way that this particular well it include only the things that are there includes it's not an exclusion i mean that's you're looking at it this is an exception but the question is whether it's included to begin with because what this you know there are crimes that are not crimes involving moral right i mean there are some crimes that don't fit that definition at all that are not crimes involving moral turpitude but so you think lukes whatever it includes it includes those and it includes attempts and includes conspiracy and the reason is because if you read that there's never been a distinction a meaningful distinction as i was mentioning in mc beginning in mc now in one thousand nine hundred and eighty there's no meaningful distinction between an include offense and the underlying offense when it comes to evaluating a k principles of basic principles of statutory construction to get where you want to go but that's exactly what core not have said we should do cora not us said we can disregard the plain meaning when it leads to absurd results or internal inconsistency i'm quoting exactly from core and auto that is exactly what the court said and that is exactly what we have here we have a couple absurdities and inconsistency is judge owens was just beginning to think them out and the government couldn't agree more you have the most heinous crimes rape murder terrorism you name it anything that's just solicit to commit that crime as long as you add that magic word solicit no matter how terrible and heinous the crime is it's not a crime involving moral turpitude and somehow this provision should be read separately than every other crime involving moral turpitude provision in the i n a which by the way appears in many spots so you know there would be confusion as to how do we know whether something is a crime involving moral turpitude because we're deviating from a categorical approach that this court has long endure that applies across the spectrum for offenses that basically looking at the elements of an offense and deciding whether they meet a crime involving moral turpitude based on their elements not on these superficial distinctions on whether something is a certain type of  offense one of the biggest and well what it superficial about it aren't the elements different under arizona law for solicitation and other crimes these other lester crimes so it's not a made up thing it's a different current right would include offense yes moments of different crime is it not it's a different crime and it has effects on elements correct it has its own elements but those elements only reinforce the nature of the crime involving moral turpitude because they always add th in attempt to commit that same crime all of a sudden becomes a crime involving moral turpitude because now you had a specific intent there was a case some i'm blanking this was a th circuit case i believe that that was along those lines that the attempt to commit it as opposed to the would be covered to the extent that we apply the categorical approach well what where do you get that i'm looking at the words of the statute and it starts with a crime involving moral turpitude including or an attempt or conspiracy to commit such a crime so it's still has to be a crime involving before it's about adding more specific intent to higher mens right up to the situation you can't accidentally do include offense essentially and so basically when you can't accidentally do a crime involving moral either current right so we don't care if you so i don't understand where this adding something special comes in what i'm saying is that there's no there's no meaningful distinction by adding on or an attempt or conspiracy to commit the crime because those were already included within what a crime involving moral turpitude would be under any crime that is of crime involving moral turpitude the attempt or conspiracy or solicitation or aiding and abetting or facilitation to commit that same crime is also a crime involving moral turpitude that that was really just my point is that it it creates this inherent tension that surplusage it creates tension with the original words in the statute because under this court's long standing methodology and the board's long standing methodology to review a defense based on the underlying substantive offense then it would put it directly into conflict with that to say that all the sudden the inqua defense is what matters and your honor i know you were on the miller wits case were you were you basically recognize that we can't just say categorically solicitation offenses are not included within that controlled substance provision because it's not about whether solicitation offenses are included that's not the point of that statute and art i guess i don't understand the concept that to congress they didn't have to bother adding that extra wording at the end what's the evidence for your honor in terms of statutory construction what's the evidence for that conspire essential because of the offense were completed he would either be an accomplice or a conspirator it's only because the crime was not completed that you weren't and so there was interrelationship between the term solicitation and especially for attempt that sometimes they're considered part of you know it depends on how far along in the process of a substantial step all that but anyway you were saying you know why would congress have chosen this i mean i truly think that the whole pro with expressing us is that i think you don't often consider all the possibilities before you make that choice and again not asking to overturn coronato it says we disregard the plain meaning when it leads to absurdity or internal  they look to this exact question and didn't find that kind of absurdity they looked at the question whether when you're looking at a crime involving moral turpitude whether attempting conspiracy or just excess verbiage or not and distinguished not only because they didn't have the language of course there was nothing written there in terms of in quite offenses so they weren't using that doctrine and they said that's why we're distinguishing it however they also distinguished it because the controlled substance part if you read  reasons for finding core not one persuasive in that case the st has to do with not expressly including any in quit offenses so this express the thing doesn't come into play the nd reason is that you're not using controlled substance analysis and that is absolutely critical because as i said we're looking at over three decades of precedent here in the methodology used to evaluate crimes involving moral turpitude because it leads to the absurdity that judge owens pointed out because you essentially have a lawful permanent resident who is removable but if they take a trip and they come back in the country now they're not in miscible all they got to do is take that trip somewhere so we're in the same is true about  a controlled substance you're absolutely right that's a different statute and i misspoke but why wouldn't the logic have been the same there that in common parlance we would have considered it related to controlled substances just as you would say it's all encompassed by current to pretty well your honor i can't speak for why the court you know i mean there may be good reasons for st of all the controlled substance saturated self and this is in the aggravated felony context and the reason why it was found solicitation cannot be an aggravated felony is because the controlled substance act itself only has included crimes of attempt and conspiracy i think it's under eight hundred and forty six or something and so when the leave a leech a case that sort of piggybacked on the corner not ok's is essentially different because it was dealing with the aggravated felony provision but in that case it was noted that the controlled substance act actually limits itself to attempting conspiracy and that may or may not have played any role in terms of thinking about what is the scope of you know how things relate to the controlled substance act but as you pointed out you can have statutes that include solicitations as long as they're not a so called generic solicitation but in terms of the controlled substance relating to a controlled substance provision however the generic verses non generic distinction means nothing in the crime involving moral turpitude contacts and that's because all all that is in the core not a decision  does depend on the underlying offense entirely and so it may be that the fact that you have a generic solicitation in the cia empty context is still just go to the underlying offense of the underlying offense is what matters in evaluating a c i m t whether it's a so called generic or whether it's some other version of an encoded offense does not matter because you're looking at the underlying offense so that distinction is irrelevant  statute limits convictions to not include solicitation so the court out of the routes of court was saying the structure is clear the plain language is clear what it what is your response to counsel's argument that it makes a difference when you're looking at don't know correct i don't know your honor well when i think of this because it's not murdering someone this nonattendance not conspiracy your honor there are there are three or actually in arizona i believe for a major in coed crimes the ones that your friends who i don't believe ar among them and certainly they're not the jinn are statutes that have been around for a long time in arson and so hiring someone to murder would that be because maybe it would be an attempt it might be an attempt it might be conspiracy i'm not sure but it might not be it would depend on what was charged and what was proven in court and what met the elements of the crimes and so again your task would not be so it's moral turpitude both a carvel it's moral turpitude without with a qualifier so the statute the statute says what the statute says so it's solicitation to deal with drugs was a crime of moral turpitude to be very specific your honor what the court said is that this case does and the nd reason being about whether there was a difference related to arizona solicitation statute and an aggravated felony or a crime involving controlled substances what the court possible rational reason would there be for congress to carve out solicitation you suggested earlier that it's treated as a lesser crime if it doesn't get to the level of attempt or  that previous cases took your i can imagine various reasons obviously there's nothing in the legislative history that says that i think you could say that solicitation is a further step removed from a crime than his attempt or conspiracy i think arizona's treatment of solicitation as a lesser offense than either conspiracy or attempt would support that rationale but i think ultimately this is a policy question and this court's precedent makes clear that when the statute is structured as it is so stations not going to be included and if that's a policy concern then it may well be well the reason i'm asking is that we don't get into policy if the statute is clear we don't get into policy unless as a lesser offense and i don't know i don't know the habits of other of the other states and whether it's the situation is treated differently in other states certainly in arizona is treated as a lesser offense than that is attempted conspiracy and that in of itself is a distinction if there are no other questions i think there are not thank you thank you the case to start is submitted we appreciate very much the helpful arguments from both of you and we particularly appreciate your participation in the program on our program it's of great to the court and we know a lot of work goes into it so we are grateful for that so for this morning session we will stand in germ