more in the morning may please the court robert culp assigned by the court for appellant a j croll i was not counsel below in fact mr kroll foolishly represented himself and pleaded guilty under terms that ostensibly assured him of a mandatory life sentence make and my counsel right he had standby counsel absolutely and there was an inquiry about that decision which since abe lincoln we've known is considered foolish there wasn't an inquiry but the sentence was more of a foregone conclusion partly because of the mostly because of the statute that was invoked so it's a very short sentencing for a  case where a life sentence was issued and as i would might liken it to going to a baseball game we already know the score before the game starts i'm making this point because if i can roll the rock all the way up the hill to the point where you're considering whether to notice the plane air argument i'm making i recognize that the sentencing judge did say well i'd i'd give you life anyway even if i didn't have to and i know that there are multiple decisions of this court that say that even as the guidelines issues that that when the judge says that there's no really no need to re mad he's told you what he's going to do but i'm do want to make the point that that sentencing proceeding it's not really a sentencing in my view is just more of the implementation of a foregone conclusion and i think that if you accept my argument that the categorical approach of the supreme court makes this plane error and you get past some of the other arguments that the government has made about waiver and and a different approach than the  categorical project conduct based approach even if i get past those i would ask that the court still remain the case notice the plane air and remain on the case because of the kind of like artificiality of the of the sentencing why can't waiver in this case apply in other words he was advised of the consequences of his agreeing that the child in the new york condition was eleven he stipulated in writing to the age of the child usually these categorical approach cases are when you have an old record and you're struggling with what was the indictment the information or what happened in the plea proceeding ten years ago in new york was in this proceeding where they said you know you're going to get a mandatory life and the child was eleven years old maybe he was a adequately advised of the consequences of that but he certainly was told if you agree with the stipulation you're going to get mandatory life why why do we have to apply the categorical approach here when he in this case specifically admitted the facts of the underlying conviction he did he did stipulate to the to the facts of the particulars of the underlying conviction i don't think by doing that that he waived his right to come to this court through a sign case not no one's trying to figure out what is the stablished by the prior record he acknowledged that his prior fans involved a victim who was eleven years old and the approach problem is talking about what the difference between a statute that applies to children under twelve and one that applies to children under thirteen or fourteen or something like that it's not an easy case to apply and even if waiver per se you're saying that it's different where the defendant actually stipulated to the facts i understand i understand your point the only answer i can give to that is that the categorical pro choice is the  the statute is structured in such a way that in many cases there would need to be a circumstantial question addressed as to whether the victim in the prior offense was under seventeen right because that's and i'm not sure whether you'd be arguing it's hard for me to see it but maybe you have an argument that even that inquiry somehow is governed by the categorical approach but i think the wording of the statute in the structure of the statute would suggest otherwise the way by answer to that point was that even if that is conduct specific yes and that's and thirty five fifty nine one itself that under seventeen thing that i am still arguing that when you get to the point of comparing the most analogous federal criminal statute not just a sentencing has been statutes twenty two  for the prior state acehnese not in this case but in some of the case happened to be section twenty two fifty one the crime of which mr croll was convicted here now that under federal  an age of eighteen that's relevant but one could easily imagine a prior state offense that applied to adults as well that prohibited certain sexual conduct and photographing it  and it would be necessary in applying the enhancement to make for the court to make a circumstantial assessment of whether the victim was under seventeen and yet under your analysis we'd still have to say well but it's not an analogous statute because the statute is varadero in a way that strikes me is totally irrelevant to the policies of this and cement and one can think of other examples categorical approach itself which presupposes that a comparison of two statutes based on their elements will be a complete disregard of what the actual facts are involving the prayer can guess but but you know the question of whether the categorical approach applies in a particular situation is a question of statutory interpretation and i recognize that we start with the plain meaning of the statute and there are you have some pretty significant textual arguments that sounds like congress was talking in categorical approach terms with respect to that particular element but it is also a case in which it seems quite clear that the one thing that congress wanted to do was to make sure that this enhanced meant did not apply to any sexual conduct affecting a minor being someone under eighteen because they specified that you'd have to do what would most likely be factual circumstantial inquiry into whether the person is under seventeen and here we sit worrying about whether two statutes match up where the ages were twelve and fourteen and the is dissent in math this is obviously invoking the majority's opinion of me and he said good luck to everybody trying to figure that out and it is it is difficult and i'm not going to be able to answer all your questions to your satisfaction i'm going to whether sign some kind of an answer lies in the proposition that well three three pronged one is the value of simply doing things according to law  secondly the huge difference between going to prison without any hope of ever emerging and going to prison for a very long term with some hope of someday seeing the light of day after the prison term and third how little an imposition it is it's not like requiring a retrial where  result might be speculative and the and the and the burden considerable it's not a big deal to go back and have the judge pass a new sentence even if it's going to be the same sentence i thoroughly agree with all that all those points your honor and i've made them if you're in there in the briefs i think some of those are policy arguments i think that you i think that panel can consider those especially on the waiver argument which is kind of an equitable argument that the government is making that that all this is out the window because he stipulated to to what what happened  as you pointed out the categorical probes is the law i'm saying it's the law as applied to this case they say otherwise but it is the law and if it color our other i would be looking for ways to have you know in a case where there was a trial and would call for some of labrat proceeding with the possibility of coming out anyway you can't predict but when it calls for simply having a judge conduct a new twenty minute fifteen minute proceeding gotten thirty i'd be here telling you that that's an effective that's a death sentence or not that's sentence that's effectively life in prison and i'm doing what i can't my time is up if i could do two items of housekeeping very briefly when she mentioned statutory interpretation that it's probably obvious i should have invoked the rule of lenity in my reply brief to the government's argument that this statute is a conduct your position the other thing is and i'm not going to because i didn't send a rule twenty eight letter but the supreme court's decision two weeks ago in session's v demin has a little bit of discussion of these issues it's more  but there's a little bit of discussion of the conduct based approach because justice thomas had raised that issue in the case and a little bit of discussion of the categorical approach i'm not going to argue based on the case because i didn't give you a rule twenty eight letter but i just wanted to call that to your addressing defense counsel's remark that it was foolish for the defendant in this case to plead guilty to a life term and what was clearly a mandatory life term i just want to know to go to say that to and  with your honor in the defendant's words he wanted to ensure that no stone left was left unturned that was his reason for going pro se very big stone unturned you're on like right in front of him as an obstacle to his getting anything but a sentence of life imprisonment and i said well all right but and you're going to tell us that actually it wasn't fullish either for him to stipulate  also i just wanted to make a note for the record that the defendant made clear that he didn't want to go to trial and there were strategic reasons based on his own personal life and who the witnesses in this case would be that he avoided trial at all costs and he telling him that look if you don't agree to the age of the child and your conviction you you will not necessarily face a mandatory life term in other words he certainly was goner i don't think those words are on the transcript record what is on the transcript record is a statement by the government attorney at sentencing that said there is no dispute that the prior conviction as a qualifying conviction and there was no response to that because the entire focus of the case for nearly the four year pendency of the case was this life mandatory life term anybody said look you understand the he was counseled by his attorney about the impact of the enhancement i want to note that although he went pro se this was a rift with his attorney his attorney stayed on a standby counsel filed sentencing letter and made a sentencing argument in conjunction with his own and when this cases where it's relevant the parties somehow agreed to that and the courts just said this isn't raised because the parties agreed that this is what's going to happen on remand the court didn't actually make any ruling as i read rude very not your honor but at that time and even now it has always been the case of the supreme court and the second circuit have i said that there are certain circumstances where effects specific approach is appropriate you have to look at the statute and the wording of that statute and so even though they a lot of  cases have used a categorical approach that doesn't necessarily dictate one here and we had argued below and here that it definitely doesn't dictate a categorical such here we would have gone to trial your honor this is why in fact there is no so several means we obtain the stipulations there was always a risk of course sometimes defendants try to get out of stipulations so on the record in the docket below you'll see that the government disclose a witness list there's a stipulation that is independent wouldn't have had that stipulation because he wouldn't have been admitting to it in the context of a guilty plea or what am i missing yeah let me let me clarify that was a stipulation that we asked the defendant to sign as a trial exhibit and was going to be admitted at trial in a bifurcated trial where we first and that's why as this existed independently of the plea proceeding yes beforehand that's correct there was a stipulation we had the certificate of conviction the prior plea from the state conviction in which the defendant again admitted to to the allocated to the eleven year old age and he was advised in that twenty year old please that that plea would form the basis for enhanced meant for any future conviction and then third there was also confident that mandatory minimum sentences of thirty five years in prison for a fifty five year old man in a case where judge wexler would have had the authority to sentence him to life if he deemed that appropriate on the facts of the case and in that proceeding it would have been entirely open to the judge to consider all of these facts about the age of the prior victim and that was always going to trial over your honor i realize those are unusual to see a case like this but this was an unusual case there are four different usas on this case each with significant experience in prosecuting sex crimes and this was by far the worst thing we had ever seen a very significant predator i appreciate exactly and not just that but it was apparent that he had designed his entire lifestyle around be having contact with children he was a teacher he was a camp counselor he abused a child and the witness a statement that john doe tuesday victim's statement at sentencing shows that he imposed a lifetime of torture which is why judge we actually explained if that that the torture he imposed last a lifetime the punishment should as well and i think that goes straight to the plane or argument in the government's sentencing letter explain that in has been applied but even separate and apart under the three five five three factors of life sentences wanted in this very specific and unique case of someone who simply can't be let out and even from attributive purposes has irreparably damaged two children you know for all those reasons we explained all of those reasons in the sentencing letter and that's exactly what judge webster echoed at sentencing that he would have imposed life anyway