please the court good morning kimberly here from the district of arizona the united states in this matter is asking that this court remain and this case to the district court judge so that he can apply the correct approach in determining whether or not  the sexual abuse of a minor is a crime involving violence under arizona statute in one thousand nine hundred nine when the conviction was when the defendant was convicted of that crime this district court judge looked at the fact up with of especially looking at how the mirror or whatever county it was that the superior court judge sentenced this guy and sort of concluding well obviously with a probationary sentence or a short term legal term i forget what it was and what was restored to him and it seems pretty clear to me based on the statutory amendment in what was in one thousand nine hundred four in arizona that he had never lost in one thousand nine hundred won the right that when his rights were stored the rights under arizona revised statutes thirteen nine zero four were restored when he completed his probation those were the rights the right to vote the right to hold public office the right to serve as a juror however he also had another civil right that was suspended because it's we if this court or the district court held that attempted sexual abuse of a minor was a crime involving violence then under arizona statute possessor is one who has been convicted with or without a state of a felony and we can stop there except there's an end in there and who's civil right to possess or carry a gun or firearm has not been restored he had no need to have a restored it was never taken away not been restored help i hope that well as i understand your argument you're now directing us to this thirty one a one b six and saying that that has been on the books since at least one nine hundred eighty nine and therefore depending on how the crime is categorize if it is in fact a crime involving violence then on the date that he was convicted he actually did lose the right to possess firearms is that that is exactly what the united states is saying and otherwise there would be no prohibit possessor in arizona because they did thirteen dash nine zero four and did not suspend the right to bear firearms so why would there be a need for thirty one zero one and that's why we've got the united states believes that thirty one no one does further suspend the civil rights based on a conviction for a felony involving violence i have to say i share the same confusion that me and played by that was not clear to me from carry a gun or a firearm that's correct and if you look at arizona my statute thirteen dash nine twelve that's the part that talks about restoring the automatically stores the rights that were lost or suspended if the person has completed a term of probation and pays them a fine or restitution correct but why why doesn't this cancel out the second part of six b thirty one a while because yes that's correct so wise advice because i believe that under arizona law it's not clear and hasn't been defined in this particular statute i was unable to find any arizona authority on how it whether or not it would be defined as a crime of violence but looking at the context of the statute particularly that it was deemed a dangerous crime against children that it is a sexual abuse crime involving minors and other jurisdictions which would be persuasive authority have found that those saying is that looking there is not a case that says either way about attempted sexual abuse of a minor and the bible case only refers to aggravated sexual assault and is dealing with adults clearly cases in all courts in said that sexual abuse of a minor is different from that of an adult secondly in the mckinney case the court the arizona supreme court specifically withheld saying that this particular statute was not a crime involving violence and i think that firearm for all felonies in arizona and prior and i think they were clearing up that prior to that thirty one zero one only addressed it for crimes of violence or crimes involving a dangerous weapon ok and the reference to crime of violence where in a thirty one zero one good morning they please the court time feeling for mr simpson the state of the united states concession that the nature of the law with respect to attempted  impermissible round which was failing to follow the williams versus healer analysis we should remain and the district court for the correct and with a framework which is that determine whether it does involve a crime of the law requires that the district court judge look to arizona law and what arizona law required with respect to an analysis of the statute for a crimes and haron violent nature out on its head and says look to the state when when the united states then says it was unclear in arizona whether the factual approach or the categorical approach applied then clearly judge mcnamee committed no  looking at the facts the best that the united states can muster in this case is that the the law governing the thirteen seven zero three f two capital aggravating factor provides guidance to determine what arizona might think about the attempted sexual assault that concession itself amplifies the fact that arizona had not concluded in that case i argue that a second degree murder conviction could not be used against my client as a crime of violence the trial court acted with great disbelief that i would even assert such a violent to us when we hear about them under the earth of the supreme court's eighth amendment narrowing duty can be found to be nonviolent there are a list of crimes starting with second degree murder burglary armed robbery aggravated assault sexual assault all of which can under the circumstances of the case be found to be nonviolent and in fact in bible which  supreme court explicitly health that because of the nature of the statute and based upon an analytical approach of the elements required to prove this sexual assault it is not a crime of violence categorical approach taylor yes or it's not a crime of violence absolutely correct and that's precisely what the arizona supreme court has said with respect to sexual assault crimes they said looking at the arizona defendant to commit this crime without the use of violence and it suggested one can drug one's victim the victim may be deceived or the victim may be unconscious and based on i have a footnote where i try to parse that out my view is that the district court is required to look at errors it's not to the district court is required to look at the state to follow arizona state jurisprudence this is not dictated by taylor this is dictated by eighteen us c one twenty two g one and  hundred twenty which says in my footnote to what constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction assuming for the sake of argument that arizona does use a categorical approach the judge's ruling was correct assuming for the moment that arizona uses a fact based approach the united states doesn't dispute that on the facts of this case it was not violent either way the ruling was correct and the government concedes that it is unclear which road in arizona goes down  this is one of those rare moments where i as a defense lawyer find myself  real i disagree that it has to be spelled out in in the statute i believe that the courts have said that it is inherently involves our necessitates violence when you're dealing with a minor that the attempted sexual abuse a minor is not a lesser included offense of the crime in state the bible it is different because thirteen dash fourteen zero four involves the minor and courts have held in the past even when they apply a categorical approach that when you involve a minor it can inherently involves violence thank