case mr cowles conviction was not an aggravated felony and we respectfully request this court reversed b a s decision ordering his removal and to the aggravated aggravated felony analysis a state court conviction will be the equivalent of will be considered  aggravated felony if one of two things is the case either the conviction has an illicit trafficking element or it is the equivalent of a hypothetical federal felony in this case a felony under the federal controlled substances act in this case there's been no allegation that cowles conviction involves trafficking and therefore you will be considered to have committed an aggravated felony if at all only of his conviction was equivalent of a hypothetical federal felony only if he was convicted of only if he was yes it of the hype that convicted of a crime that would be punishable as a felony under federal law i think a federal felony which would mean conviction of more than a small amount yes sure we are that's where we are that the case comes down to that there is an exception under the federal sentencing law for distributing a small amount of marijuana for no remuneration this court has found based on that provision that possession of marijuana is not inherently a federal felony and additional information is needed to make out that claim so that under pennsylvania statute a thirty that is not inherently anything other than a misdemeanor correct under federal law that is correct your honor this court is held in june in evanston  other cases that additional information is needed in order to make out a felony because possession alone without more information is not there and there is additional information here right there sort of a criminal complaint which mr carwell pleaded guilty to right is there any ambiguity in the record that he pled guilty to possessing with intent to distribute more than twenty grams of marijuana we believe that the record is inconclusive there is a charging document that states that amount however there is no information on the record anything that's correct right now one hundred four says number one is name number two is accused number three the acts committed by the accused all right these are the acts is his conduct correct and that's where we have the grahams yes this is the amount charge that's the acts and usually we're not supposed to look at acts and conduct correct that's correct just because looks like a conviction so then we have i mean it doesn't say under the counter the count description the grahams it only says that under the conduct description so how do we know what happened here i agree your honor the record is inconclusive we don't know this essentially puts the court in a similar position to jude evans that in other cases where the record is inconclusive how how was it like june or were evanson and in those cases in one instance there were a question about sentencing and there was a right there was question of sensing document right and there was a decision that you don't know since other things can come into sentencing you know to what's going on here you've got the criminal complaint it's the only thing he's pleading guilty to be adequate as a shepherd document it has to follow the following form otherwise it's inconclusive and we're not really sure what they're completely guilty to know your honor it doesn't say that but in shepherd the supreme court explains that the separate documents are could be less we also do know that the government has never alleged that mr katla was involved in trafficking there's been no allegation that he sold the drugs or that he received the remuneration that have been the government's position throughout this proceeding at each stage therefore the only option left is that mr cat will marijuana for his own use or for casual sharing and the legislative history of the controlled substances act and the decisions of other circuits of analyze this small amounts exception of all focused on the nature of the  defendant possessed the amount for personal use or casual sharing on one hand as opposed to a commercial venture or a profitable sale on the other hand so it's your position that that's that's the binary choice it's either a commercial enterprise or it's personal use and casual sharing there's no other category of stuff that would be more than a small amount even if not a commercial enterprise we do believe that those would be the two general categories there may be instances and least cited some based on a brief where the amount of marijuana issue was so objective we large in the hundreds of thousands of grounds that a court could reasonably conclude without other evidence that is a large amount that's not amount that we have here if you do you have an m l that's if you converted only ask you this first there is a is there any inference to be drawn at all from the question here into the modified categorical approach is whether this conviction would be punishable as a federal federal felony under the federal controlled substances act as we know the federal law does not say thirty grams it doesn't include any amount in half that amount open for courts to decide  we're searching for stuff to help us understand what would be a small amount right right and you're in the supreme court has stated just last month in the character decision that any ambiguity is in criminal statutes that a reference to immigration laws should be interpreted in favor of the non citizen the term small amount is by its nature ambiguous and as the court fills that gap in the statute it should interpret the term in mr capitols favor we also think that the information we have about how do we decide for instance i have got a little back here this is not mar happens to be a grilling blend spice and this is one third of the amount right this is one so you multiply this by three how are we to decide whether this is for your own possession and dispossession mean you have a party with the friends and you make twenty cigarettes i don't know how are we to decide whether this is a small amount or not is it a matter of for your own possession vs for sale and if so how do we how do we decide that the court should decide this based on the tally of the circumstances that is the test that most circuit courts have used other courts have looked to the circumstances surrounding the conviction was the defendant arrested with drug paraphernalia cash weapons other items that would indicate into an attempt for example or intent to make fifty different marijuana joints none of that information is in this case we do know that it's out there we are looking drug therefore the only thing that is left is personal use the supreme court the only in our search that we're conducting we're looking obviously to other instances analogy so what's the largest mail you lenity and when someone should be on notice of whether their their conduct is is criminal i mean does it have any of the subjective that if you have you know three times this amount you realize that it's a you know it's a federal crime if you will if they get federal felony well i think that the analysis doesn't fall the question of whether the defendant in this case was put  notice but i would look at it differently i would say that the intent behind the controlled substance act is not to criminalize as a felony certain instances in which somebody is using marijuana for their own use when they may not realize that that is would be two hundred forty once marijuana cigarettes according to the in the sense of guidelines wouldn't that be enough for us to well even though mr cat will say he likes to smoke a  that's enough for us to say looks like more than a small well for a person no i don't believe so your honor for a couple reasons number one is that mr khalil was in fact arrested with two other people charged with the same amount this amount was found in a house with three people so in effect the amount should be divided by three second the legislative history and the other cases indicate that it's not solely a question of the amount at issue if it were there that congress would have implemented a bright li test and last the supreme court look as we can solace as stated that the term illicit trafficking which is the term ultimately being defined in this analysis should be interpreted in line with the common sense understanding and every day understanding of the term illicit trafficking the second circuit the life trafficking right this is not trafficking and that's what i like to say is that the second circuit relied on lopez and it's a find that simple possession offenses such as mr cattle are not in line with the common sense understanding of trafficking mr cat well even if we assume he possessed one hundred twenty or not one third of that amount or not an amount lower than that did not sell them out and it would be not in line with the everyday understanding of the term trafficking good morning kate the endless for the attorney general i guess i'll just go straight to the small amount issue i think if you could you answer why the complaint is in to my mind is inconclusive we cannot say even the amount was even mentioned as part of the conviction proceeding so that this would be inconclusive why should we not do what the second circuit martinez did and say when it is inconclusive we look at the nature of the crime and if it's inherently not an aggravated felony which a thirty really is not well i find it isn't an aggravated felony i have two comments on that the first would be and i know this in my brief that i would point the court garcia which is a decision which they they held that you held that in pennsylvania a criminal complaint is not merely a police report it's the charging instrument the filing of the complaint is sufficient to initiate herman proceedings i'm in pennsylvania law does not require the subsequent filing of either an information or indictment if a plea of guilty or nolo is entered in this it was guilty or pled to an undercover agent and they cited from the complaint i mean we don't know whether you know that was part of the accounts in the complaint which here this is different this is a little different it says the acts committed well that's conduct related and that doesn't say you know you don't plead guilty to acts you plead guilty to count so i don't intent to deliver so i think you know to that extent it is factually distinguishable to a certain extent there obviously is not a way to you know charge under a statute that that would specifically charge one hundred twenty grams so it would have to be in the in the you know colloquy only and absolutely and i do agree to that i do want to mention that petitioner did not exhaust an argument before the board that he was not i want to make sure i understand if you just made a concession i need to know what are you saying that the listing of the one hundred twenty grams in the criminal complaint is not sufficient as a matter of law under shepherd to establish that what mr cantwell pled to was possession with intent to deliver one hundred twenty grams no it that's not my position i'm not making that concession we believe that this criminal complaint talking is sufficient to establish the one hundred twenty grams especially in conjunction with the o infrastructures that he was convicted of that he was convicted of possession with intent to distribute and the one hundred twenty point five grams were involved that's not the same thing was he convicted of possessing one hundred and raise it now is essentially too late is it is it legally significant that the conviction involved one hundred twenty point five grams as opposed to being a count of conviction possession of that amount then that's one thing and i'm asking you is is is that legally significant in terms of what we can consider because if the attorney general agrees it's the petitioner it's burden of proving his eligibility there's a document i'm happy to have you speak about the birth of proof but i'm trying to get you to answer that specific question i asked you is the attorney general agreeing that we can't look to that one hundred twenty grams because it's not a county conviction because that would be a pretty significant thing for us to know if that's the position of the government that's not the concession that i'm prepared to make today if the court if that's a concession that you're asking for i can't manage that i'm just asking if you're making i'm not making that concession it was my understanding when i briefed the case and my review of the law that this would that this was sufficient i can't make that concession on behalf of the attorney general today would have to go back and do more research and perhaps submit additional information to the court i simply can't concede that on behalf of the attorney general here and i apologize for that you'll have to apologise just trying  board gave very good evidence that thirty grams of marijuana is generally what the threshold limit is and one of the important things that the board pointed out but i think it we can't ignore is that the pennsylvania statute itself that section eight thirty one defines a small amount of marijuana as thirty grams or less and that's you know not something that's been discussed fully on either side but the board did cite that in its decision and it's you know supportive so is the twelve twenty seven remove ability thirty gram threshold limit or way above the thirty grams here in this case were four times that much and there's just simply no reason that the petitioner's testimony that he's a constant marijuana smoker and that he had four or five bags  really sufficient evidence given that it's his burden of proof when the board is citing these very compelling arguments the thirty grams is a threshold and again if it is a trafficking statute and if we do believe that you should be put on notice in a criminal statute of what behavior is criminal shouldn't we i mean should we err on the side of looking at it from the standpoint of it was this a trafficking amount well i mean i think you know the aggravated felony definition of the i eight points in two directions it's points as to illicit trafficking which is not at issue here it  points to drug trafficking which it then defines as how it's defined in the in the controlled substances act so the the word drug trafficking is not necessarily something we should just be interpreted you know with a general definition from the dictionary per se i mean we're going we're pointed directly to the federal statute which does provide an exception but also the pennsylvania statute provides a subsection which he could have been convicted under you  know and we don't know what happened in this case but had they picked him up with what they considered to be a small amount or with less than thirty grams they could have charged him under a different subsection you know which would have specifically led us to the conclusion that this was a small amount because it was  fined in the pennsylvania statute so i think that's that's pretty compelling here if we look at what your opponent suggests and that is the circumstances he's with three other people in the house there's no paraphernalia no evidence of traffic no i don't i don't believe in this case we go beyond the conviction documents that you have your victim is the conviction no matter what and interestingly enough i do believe from the record that there was another person present in the house who was arrested also and i'm not sure what the charge was but i'm not sure that you would just divide the amount of drugs by three if somebody other than modified categorical pro choice what does that have to do with anything nothing i'm just noting that petitioners coun suggested that we should by the amount by three and i'm just suggesting that you know there was probably there's probably not a reason to do that can you respond to the argument made in your opponent's briefing that the assertion by the government  on burden of proof is really should be rejected out of hand is unfair because they've admitted they can't carry their burden of proof with respect to remove ability by showing that there were two grounds of remove ability one of them with denied and it was not appealed our position is that the immigration judge erred when he applied the legal standard when he was determining whether mr cat was convicted of an aggravated felony had the board had the opportunity to review the aggravated felony determination that may have it likely would have found a different direction on the removal of ability ground as well and if it didn't it didn't have the opportunity to the h s did not appeal that it was well within its you know limits to not have to appeal that because it already had established from a bill excuse me removal of the on a separate ground the burden then shifted to the petitioner to make his showing for his relief application and that's you know that's solid under the act and under the regulations that that's the way it works the government  not need to establish the aggravated felony conviction on appeal you know recently the supreme court and the names escaping me they made the case caricature in character no i'm case where they said this really isn't this kind of horrible dastardly you know aggravated robbery felony you know we looked at the character of the crime and said you know that certain things just don't fit and we need to look at that here i mean we have martinez which says kind of when in doubt as to what you have here in terms of the don't put the onus on the the defendant to come up and do an affidavit as to his conduct because that's not you know when we don't want to go towards conduct instead look at the inherent nature of of the state crime and see what it is a the inherent nature of a thirty it's not an aggravated felony and he got fifteen months probation certainly wasn't viewed as an aggravated felony what's wrong with that well i mean  it's well well set out in the immigration law how these things are considered for immigration purposes and you know the eye in a has its own definition of aggravated felony that has to be applied to petitioner here and again i just want to not go in that we're in the hype of med or well in terms in whether petitioner is eligible for the relief from removal that he seeks which is ultimately the question here where determining whether his crime was an aggravated felony for purposes of immigration law they are in a directs us to the federal statute but then in the end it comes back to the three requirements of cancellation of removal and you know this is not a situation where the government has not met its more onerous burden of showing that petitioner is actually removable i mean we're past that stage here we're at we have  removable alien who's asking for a discretionary form of relief from removal so in that context i think i had the proof certainly within the control of the government as to the nature of this conviction and what happened at the guilty plea and everything else and what he was convicted of the government clearly has the ability to to come forward with that well certainly petitioner could have offered additional evidence as well in support of him as the evidence to conduct i mean houses most access to the record of the plea colloquy well i mean i think you know i don't know what d h has had available to offer into the record but i do know that they originally charged the aggravated felony so my assumption is that they entered what was available to them so to say you know after the fact that they should've entered better documentation i'm just not sure that that it would really work out that way i mean we often see cases where we wish we had more criminal documentation it's difficult  again you know petitioner had the opportunity to you know offer testimony from other people on what a small amount was or what you know there were other opportunities and it's clear under the regulations and under the i and a that that it's his burden nothing on point that instructs the immigration judge or the court will this is a small amount that instructs the you pointed to the pennsylvania statute the provision  it had been presented i'm saying it could have been presented i do want to point out that the this idea that personal use equals a small amount is not necessarily grounded in the law either i mean the immigration judge did discuss on the record well we're not revealing that he did discuss you know this looks like a personal use about well there's no you know correlation between personal use amount in the federal statute that we're looking at here now except it's it's other than a small amount of trafficking amount  don't know that we can make that assumption i mean maybe just it's an unreasonable amount to have an on your possession you know it's not a no it's so much that you can't use it personally but well it's there for a larger mounting it or you may be stockpiling it for personal use in the future i guess it depends on how you define personal use i mean i do think that there might be an intermediate intermediary and there i haven't fully researched that but i'm not sure that it's so cut and dry and i do think that the existence of a separate pennsylvania statute that would have charged explicitly a small amount is compelling in the determination here thank you as i'd like to touch upon just a few points i'll start with burden of proof there are a few aspects of government counsel's mention that his decision cited the pennsylvania statute a few other pieces of support in its favor it's our opinion reading the i's decision that there are only two sentences of support the pennsylvania statute is actually referenced elsewhere in the opinion and only two pieces of information one is the name of the case which as we've discussed is not applicable to this context and the other is the federal i and a statu neither one of those on its own or in conjunction is sufficient to determine what's a small amount in this case the federal statute doesn't define small amounts and the cases that we have cited in our brief all give some additional guidance moreover as we stayed in our brief  very small fraction of federal marijuana offenses are for anything less than five thousand grams of marijuana that is orders of magnitude larger than one hundred twenty we're dealing with here we mean when you say very small fraction of it will fences though federal law criminal relevant information it's court should consider in determining what is a small amount under federal law what federal law enforcement considers to be a small now and what it will prosecute and what it won't i would also would just like to so to speak to the shifting of the burden of proof in response to this court's order from march two thousand and nine we did discuss the burden of proof while we understand that under the statute regulations mr carroll has the burden of establishing that he's eligible for cancellation removal in this case the shifting the burden of proof is a little perverse it gives the government two bites the apple if the government cannot prove that mr cat well is removable by virtue of having been convicted of an aggravated felony it can still contest cancellation of removal by  way it's been a vision by the legislature right yes we understand that that is normally the wage work the government was able to but by not appealing to the ira it's failure to show aggravated felony it was able to in essence force mr cat well to prove aspects of the conviction that that should the government should approach proven in the first instance we just request that the court consider this we have brief the issue in response to the court's order maybe in this