issue that is whether or not mr graham boy was properly classified as a career ender simply because i think that issue is garnering a great deal of attention from the courts however and i think it is appropriate to make some comments about the trial because the trial was infected by what i see anyway as an overriding issue that is the misconception of the judge as to defense theory of the case throughout the proceedings below we argued during trial after trial and prior to trial that the reliability of the child witnesses statements for additional district court i think throughout the proceedings but the victim in the instant case was eight or nine years old at the time at any rate by the court fueling our argument with respect to the victim is a credibility issue rather than a reliability issue it led the court to make a number of mistakes during the course of the trial and also in denying our motion for a new trial file after the trial was over we presented expert testimony or such present expert testimony detailing to the jury the problems inherent in this girl's testimony by virtue of the fact that she had been interviewed on a number of occasions and if there had been a number  techniques utilized during the course of those interviews what we wanted to do was we wanted to present evidence to the jury about what those two tested components of the interviews were about the number of different interviews and allow our experts to testify the potential for those particular techniques to affect the reliability of the child victim the district court view that is going too far and and this allowed us from presenting that type of testimony based upon its belief that we were trying to issue or are trying to introduce an the jury learn not only about the suggestive techniques but the direct effect that the suggestive techniques could potentially have upon the reliability of this victim witness this testimony  testimony of that nature is i think that this court recognized in the full a whole case is something that didn't directly attached to the credibility of the witness and in fact the jury would be free to determine that although suggestive techniques were motion together with a motion for a new trial once again the court mr misapprehended the thrust of our argument in viewed it strictly as a credibility issue and i think this is clear from arguments in the briefs it wasn't simply a credibility issue rather  now with respect to the sentencing issue mr graham boy was sentenced to life without possibility of parole after the district court determined that he was a career offender we acknowledged in the just record and we acknowledge now that the instant crime the conviction was and is a crime of violence we also acknowledged that there was one predicate that was also properly categorized as a crime of violence and that was the abuse of sexual contact of thirty three year old however what we argued here and what we argued in the district court below is that the other predicate utilized by the district court that is sexual contact with a girl under the age of sixteen was not a crime of violence and i think that i think that argument finds in acceptance in a number of the circuits that are visiting that issue and as the fifth circuit has recently i think the statue prohibiting special contact with a person under the age of sixteen that over the age of twelve does not on his face require a use of force or threat of force the way i view the case is that the court involved it was different because not only was the age of the victim lower but the conduct involved was also much more intrusive than what's involved in carnal knowledge required some sort of actual penetration actual intercourse or at least some sort of oral contact with a sexual organ the girl in that case as i recall was thirteen years old the statute prohibited intercourse or oral contact with a minor that was under the age of fifteen now here what we're talking about is we're talking about case acknowledge when we're actually talking about sexual intercourse the threat of physical injury to the victim is something that is i think clearly more tangible than the threat of physical injury when we're dealing with with the type of contact prohibited under section twenty two forty four the the victim for example can get pregnant there's a greater danger of transmission of disease there's a greater danger of actual physical injury when we're talking about intercourse type activity as opposed to under section twenty two forty four mirror contact over the clothing for example of statute we are not looking at a situation that involves the serious danger physical injury to the victim this that you could be file aided simply by a nineteen year old someone who's just one day over one thousand years old who touches me inner thigh of his girlfriend who is one day under the age of sixteen years old and does that with consent that is not something i would as i would assert that carries a high danger of physical injury to the victim and i think if you look at the cases the second circuit cases the shannon case in the thomas case and more recently the  the conduct involved together with the age of the victim when they're looking at these sexual type crimes and trying to determine whether or not they're predicates so for instance in the thomas caves the seventh circuit determined sexual intercourse statutory rape of a girl that's simply under the age of seventeen could not carry such a high potential for some physical injury to the young woman that it would be properly categorized as a crime of violence the fifth circuit just very recently determined the same thing in the term section twenty two forty four i think it is clear on the face of the statute if you used the the thing if you if you look at the statute categorically that there is not a serious serious potential for physical injury to the victim through a violation of section twenty two forty four and for those reasons i think it's clear that this court should follow the lead of what i think is the is the direction of the other circuits and determining that this type of conduct is not something that should be categorized as a crime of violence for  defense arguments just now the argument that his expert witness was basically not allowed to fully testify i respectfully submit is not entirely supported by the record the united states had objected initially to the expert the psychologist even testifying because he wasn't qualified the court did let him testify and the court did allow him to testify concerning his research and his opinion as to what constitutes proper questioning what process constitutes a proper investigation of a sexual abuse cases especially with children  would not be the way to go that's correct your honor the only possible difference in that case is the age of the victim and i believe there's maybe one or two years of age difference to the  case itself basically talks about and putting aside for now the difference there there are differences in other circuits and in the circuit too between contract and penetration as defense counsel has pointed out penetration there is there's no argument that act when penetration occurs that's a kind of violence i also submit there's absolutely no argument and there hasn't been argument that when a smaller child and child younger than twelve years of age is that's actually touched that can be committed considered a crime of violence what the issue is in this case this girl was fourteen when she was touched sentencing guidelines it talks about some other cases and then it concludes that in this one paragraph at the heart of these opinions is the belief that when an older person attempts to sexually touch a child under the age of fourteen and this is they the difference in that statute that they were talking about at the heart of these opinions is the belief that when an older person attempts to sexually touch a child under the age of fourteen there that physical force will be used to ensure the child's compliance i respectfully submit your honest cases directly on point the ninth circuit has addressed as in this case the child  was the one victim was fourteen and yes it is a violence it should be considered a crime of violence the court probably found it to be a crime of violence and sentenced the defendant as a career offende a crime of violence means any offense that involves conduct that presents a serious potential risk of physical injury to another and this is what these cases say that's basically what was present  reason it is a crime of violence is because you have older people taking advantage of younger people this was a  it was a felony sexual contact with a child between twelve and sixteen that's what the statute that he pled guilty to earlier the child was a fourteen in this case the reason these are person does present the risk that violence will be used if that person doesn't cooperate that's what the judge found that's what the quote found and that's the way the law is whether or not some other circuits are coming around occur through mere consensual touching there's a real possibility that a physical force will be used that's the campbell case i said it that there are some other cases i don't want to reiterate everything that's within grief other circuits holding the same opinion the court probably found that this particular past offense that the defendant had pled guilty to is a crime of violence and because  the on my belief unless there's some specific questions on any other issue that i can answer you thank you i think a couple of things need to be addressed and this mr richter just indicated that a violation of section twenty two forty four always carries a risk of injury to the victim  because there is any time the victim may not consent to such a touching there is a danger for force being used however that's not what the statute says the statute does not prohibit merely unconsenting type touching the statute prohibits touching over the clothing which is fully consented to by the alleged victim mr rector also brought up the case such as the campbell case the campbell case involved a completely different situation that involved t kentucky incest statute where it was prohibited a parent or step parent from having sexual contact with their step child who was under the age of fifteen i think and there i think the sixth circuit very properly said yes there is a potential for violence there is a potential for physical injury in that situation but that's far removed from where we are now the peer samaranch case as as i indicated i think you need to look at the actual statute was involved there together with the clear conduct that was outlined in the charging documents and what that individual was charged with as we stated before was having carnal knowledge with a child of the age of thirteen years old carnal knowledge was defined and for virginia purposes as acts of sexual intercourse coming with flash oh and in english intercourse and animate and inanimate objects sexual penetration that type of conduct is far removed from what we are talking about here where it is simply a mere consented to touching over the clothing on a victim's body at it i when you look at the at the thomas case the shannon case in particular what the seventh circuit had to say is that we need to be careful in categorizing these sexual type offenses for  as crimes of violence because one of the things that you're looking at when you're applying the sensing guidelines is you're trying to get some sort of uniformity across the country and what they pointed out is they pointed out that in some states the age of consent is this low is thirteen years old in other states as high as eighteen years old such as texas and so which you don't want to do if you don't want to you don't want to write an opinion it's going to say that for all purposes any kind of touching on a minor is a crime of violence because i think what that's going to do is that's going to lend itself to creating a break within the circuits the ninth circuit is is i think clearly going to be in the minority of where the other circuits have gone in are and are going on this issue and i don't think that that sort of interpretation is consistent with the language of the guideline provision here because as the seventh circuit pointed out in shannon if you're looking at potential risk  physical injury then there needs to be something to in fact establish in the court's mind that there is in fact a serious risk of injury and when they looked at the wisconsin statutory statute they pointed out that the government presented no evidence to suggest that a seventeen year old girl having sex faced a serious risk of injury now in the thomas case they determine that a thirteen year old girl faced a serious risk of injury when involved in sexual intercourse but without that sort of evidence and there is none on this record i would suggest that violation of section twenty two forty four the provision that said issue here is not something that carries risk of serious risk of physical injury and it should not therefore be catarrh categorized as a crime of violence thank you