nature which all refer to is abhay and is a sex offense within the meaning of sworn are requiring registration and then why this case should be remain and so that the correct supervised release guideline range can be calculated and applied in this case and i think the first issue the most important thing is to talk about what was decided that district court and i think it's clear from the record that both sides focused on forty two u s c sixteen nine one one five a one which is the definition of sex offense that focuses on whether a criminal offense has an element involved a sexual act or sexual contact with another in the motion to  contact however government responded in opposition to the motions to dismiss not found in the joint appendix of pages thirty six to forty the government clearly focused on whether adhan had an element of sexual contact or a sexual act and what they focused on is one element of advantage circumstances of aggravation and it has it has been determined in both the hemingway and the monstrous flores cases that the circumstance of aggravation circumstances of aggravation is the element of the afghanistan and south carolina state law has significant means by which that element can be met one of which is indecent liberties against a child which is what the government focused on but it's clear that that's not an element of the office of abstinence then at the hearing on the motion to dismiss the government continued with that argument and its focus was clearly on this five a one of a section six hundred nine one one and not on  us argue well i'm going to argue the fight often to get some minor as well because it is a legal issue and i think that you have the discretion to decide that issue if you want but i did want to point out that the focus initially and what the district court decided especially in light that's correct and i think in my belief is the reason he referenced a specified often suggest a minor is because the case he quoted dodge involves that specific provision i don't think he necessarily analyzed the case under a specified office biggest a minor because all the arguments involve the whether there was an element a sexual act or contact against another but i will address the specified officer gets a minor and why i don't think that qualifies  case and the dumper mr price in his response to the motion to dismiss also agreed that what was that issue was sixteen nine one one five a one so that was  focus on that however as i said under the specified office to get some minor which is what mr price focused on in the supplemental briefing went ahead and we went ahead and addressed that in anticipation that the  minor means in earlier this year and united states versus bridges which is seven four one three d four six or the circuit has said that mark guidelines can and do you have the force and effect of law and i think that because they do and because there was a procedure in place where congress could have objected to those smart guidelines in the i think they were obligated in two thousand a so in the years since congress could have amended the  definitions if they disagreed with the smart lines but smart guidelines but they haven't that the smart guidelines do have the effect of law and the definition of explaining sixty nine one one seven i requires a in addition to requiring a conviction it defines seven i as requiring as an element that the austins that would be used as a sex offense to require sort of registration underscoring the there are other i mean i don't it wasn't specifically addressed by anyone but i did point out in the supplemental brief and i'm all of the smart guidelines definitions of there are nine categories of specified often suggests a minor found in sixteen nine one one seven and almost all of them refer to conviction or conviction an element and those are the trigger words that would require the categor to determine whether something is a sex offense requiring registration guidance available there has to be the correct person found at the department of justice in order to answer that particular question why did inquire at the beginning of this process i did not find that out that i think what the the amicus brief has correctly pointed out and after counsel has gotten into this too that the government has spent too much time and effort focusing solely  on section five eighty two of the statute as opposed to doing an analysis of seven out of seven i hear so many it's almost like the i r s code trying to read that stuff clarify our position is that even if section five eighty two a sort of requires category categorical review section five eighty two and by extension the expansion of seven capital i would require the expansion and you are i do believe the two are different the title specifically expands soreness definition the title of seven to include offenses for a specified if it's against a minor this expansion includes instance is that quote involved certain characteristics that requires consideration of a dip in its conduct rather than a simple check  court should look to any conduct that by its nature is a six offense against a minor it would be impossible to do invoke to conduct any review of conduct not a conviction conduct that you that's a very broad concept right the governor what's the government think that close anything that the judge wants to look at yes or army would be the government's position that a non categorical a non categorical review would allow that the statute in the immigration or immigration statute clearly talk about certain elements that are required i believe in the is designed to notify and warn the community that there are certain individuals with certain convictions c c a if are more concerned with determining the level of sin it's given to an offender based on  his underlying convictions and i believe that those two i believe that those two things certainly are different in such a way that sorta has to be looked at as to why he gave a lifetime of supervised release for this particular defendant to gain the appreciation of his actions to deter the defendant from other violent behavior and also to protect public your honor it would be the government's position that remand wouldn't be necessary and that this error in accepting the supervised release guidelines would not be something that the court should take into should notice as the district judge did in fact give proper reasoning as to why  sexual contact you it's a violent injury by another in circumstance of aggravation you can be convicted of that in all sorts of ways without committing a sex offense but under the non categorical approach he would look at the reliable evidence in the record the action and any other evidence that it does read the blueprint for both the statutory analysis here and how it would work in practice so currently on the question of evidence in that case the supreme court said that you would typically be able to resolve  whether the prior offense met the statutory definition by looking at the record of conviction so in a case like this frequently there'll be a big agreement where the defendants admitting sits back or there will be a trial in which you'll be able to see what the government about you did not need to be prosecuted under a  abuse statute or to assault statute the question here is whether congress wanted judges district judges and just like yourself to look at the underlying records herman is this person someone who poses a threat to children and i think from that kind of and so there is there's kind of this numerical disparity but again the only case allowing primary case a lot of other cases that are simply enhanced sure certainly on the career offender guidelines innings but again those are imposing a criminal penalty and at sentencing when they're just saying that someone needs to go into the civil registration system and according to my own the civil registration system as a consequence of a criminal prosecution correct and so take this case for example back on another criminal penalty and put him in jail we're putting imposing a civil remedy a monitoring requirement the goes into the civil registration system and in the deportation case than a geometries or pointed out that that does not  government will bear the burden of proving beyond a reasonable doubt that you actually engaged in this aggravated felony so here you translate here so here a generally if you're prosecuted for failure to register one of the elements of that offense is that you were fired to register under sorn and so in this case mr price could have required the government to prove beyond a reasonable doubt that he actually forced the stepdaughter to commit the sexual acts and you could rely on the record certainly on behalf of the district court i would submit that at this point those are long since way that's kind of a first answer the this record obviously was not raised there these have been on the books since two thousand and eight  the first time we heard about them was in a supplemental brief that i would put yes so the second so actually looking at the briefs it's a fairly complex question if you ask me so the first of all know when the guidelines actually say use a categorical or non categorical approach and the d o j certainly is aware that those are the terms courts use second of all this would raise a kind of a tricky question of administrative law j guidelines if you think their call for a categorical approach the government for the past six years has been arguing exactly the opposite in winning and in courts around the country so that would raise questions of which didn't they receive our deference for that  kind of more particularly if you look at seven on and also pointed out that does say that age has to be an element of the set it doesn't actually say that conduct that by its nature is a sex offense has to be an element which would be kind of if they were thank you i just want to address some of the issues raised by the government and amicus counsel first of all i would say that the need to one case one of the main analysis of that is a fact that the particular provision in immigration statute issue there was determined to be subject to this non categorical approach but that entire case recognized what would be a clickable to the sort of definitions that sometimes  statute is written in such a way and we're supposed to take effect the words congress uses but it's written in such a way that some of the provisions might be subject to this nontoxic or whole approach and some might be subject to a categorical and that's why in reference to the smart guidelines we look to see whether the work conviction was used whether the word element was used and there are certainly a couple of provisions within that defined by the smart guidelines referencing the specified often says against a minor which maybe would be subject so i would also want to address this issue of the sixth amendment and whether or not how how serious it is the reason i cited to their district court cases they're not circuit cases like do enhanced months which has historically been given a little a little lesser standard not quite as much proof is needed when you come to sentencing and when you're looking at a p s r in deciding whether there's a sentencing enhanced this is directly related to an element of offense which must be proved beyond a reasonable doubt so as quantum and johnson point it out in the context of a new criminal conviction is even more important that did the effect that congress intended whether you can have these because he's because the element is still i mean he still has to be even though he pled he did reserve the right you filed a motion to dismiss up front challenging whether his conviction was a prior conviction for the within the meaning of argument whether or not he should be even required to register based on this as i also do such thing that kept asking what was the definition of not categor  smart guidelines i don't believe those are waived i think that as i started out my argument initially i think the whole argument below was based on the first prong of the definition of sex offense which was what the element being is having sex sexual conduct or a sexual sex often as an element of the crime there would be no reason for a for us to have gone into any argument about the smart guidelines and how they refer to the stuff but often it's minor because that wasn't something that was raised a nd given that we filed all our supplemental brief any for us or certainly think mr i should have the opportunity to address amicus counsel's arguments now now the government's argument since they have  category and i don't think there was a pleasing in this well there was a plea agreement and it might not have been written but you you all you here and that there is in the end a good united states attorney signed an agreement that you could appeal you were the interpretation that you made about that required how to court approach or a modified got it wrong and that the district court could use a non category do you believe that you still have a right