who's been a permanent resident in the united states since february two thousand and six he's been detained now by the department of homeland security for the last eighteen months he was placed in removal or deportation proceedings on a charge to charges relating to drug related offenses both of those charges specifically reference the controlled substances act he pled guilty to possession with intent to deliver a controlled substance under r s m one ninety five point two eleven that statute has three elements possession with intent to deliver a controlled substance the controlled substance element doesn't have a definition and that statute instead you have to go to you a separate statute to find the definition for a controlled substance under missouri law that definition includes a series of schedules which include substances outside of what the controlled substances act have so it is overbroad well yeah at it's changed over the years so missouri is changed there's at different times we assume the congress knows who they're doing and they specifically include references to the controlled substances act didn't have to go right it could have been written any number of ways they would have allowed for state or local jurisdictions to create their own versions of controlled substances but that's not what we have so when we're doing this categorical approach we're looking at in a mirror in the two things in this case the removal ground and that's written by congress so when they wrote both the removal for a drug related offense it references c section of the controlled substances act and the aggravated felony definition also references schedules in the controlled substances act so they didn't have to write it our way they chose to go so that's what congress wanted if they want to amend it of course they're free to you but at this point this is th so the categorical pro choice you know over the last few years it has been the supreme court has made a number of decisions over and over with being more and more insistent on strict application of the each so each drug under harris would be a separate factual means for that crime to be committed this is all fair by all the elements are defined by the state statute this court has repeatedly found that this statutory scheme at the thing that's the finding some other section is not an element the definitions in the other statute are means to commit that offense years you may not have had a case that specifically said this but the missouri courts have also said that the specific substance doesn't have to be found by the jury unanimously and so it's our position that bell and lennon  the courts the courts did not limit their they're finding in the way they did not say if they fall under the same definitional section then therefore the jury doesn't need to find  the missouri legislature wanted someone to be convicted of the possession with intent to distribute or possession of a controlled substance for every factual way in which they violated it so if they have three different types of drugs they're violating that statute in three different ways or in three different factual ways so our argument really is the same that harris just says that the missouri legislature didn't want examined someone from prosecution simply because they had they were violating same statute in three different ways because those drugs are the ways in which they're violating statute we believe that means their means and not elements of the offense the element is controlled a controlled substance when we look at mathis there's a three step process that the court wants us to go through the first is whether a state case solves the issue and the court finds it that's not the case then we move then and only then do you move on to the second step and the second step is whether or not the statute itself shows that whether or not the drugs are elements or means and here  that the the element is defined in a separate statute and those definitions in the other statute are just means to commit that meant one of the questions matheson asks on the second stud is whether or not the it the various means if the does that impact of the sentence and in this case they don't the various drugs you get the same sentence if it's methamphetamine or cocaine or whatever it is the one exception being a small amount of marijuana but both parties have recreate that that is and isn't at issue here so looking rk to a peek at the charging document and the jury instructions and our argument is that the jury instructions in this case don't establish that the drug itself is an element that what they do is supply the factual basis for that element to be met so the drug the name of the drug is inserted comma a controlled  both bell and lennon's have that that kind of scenario i know it sounds obvious but they have where there is a dispute about what the actual chemical substance is and they found that it could stand you would have if you were in on a trial in a drug case you'd have the experts about what the substances were it's kind of hard to imagine a scenario where you've got a charge of cocaine but all the expert argument in everything is dealing with something wildly different like marijuana or something that you know it's just hard to factually imagine a scenario where that would work and then you would have a this come up that's i think that's why we have bell and london being two similar things because factually how that happened i mean if you had a the police report saying it was marijuana and in the chemist saying it's cocaine i think there would be a much bigger problem than here we're talking about subtle variations in the chemical compound but we believe it doesn't matter but that's that's i'm just saying factually it's kind of hard to imagine how that would play out but the long and short of it is that the state of missouri doesn't say that you that the specific drug itself is an element of the offense that if the element is a controlled substance and it can be met with three hundred some factual me good morning your honor suggested a brand on behalf of the respondent the attorney general when looking at the three part test that fourth the math math test all of the answers to the questions point to the statute being divisible in this case first the court  from the other offenses and that shows that the statute visible and in order to find a defendant guilty the jury must find that the defendant possess a specific drug clearly not extraneous it can lead to multiple criminal convictions and multiple criminal sentences and there's any lingering doubt the jury instructions confirm that there's no way that a defendant could be convicted for p a controlled substance and each possession of each controlled substance of the separate crime in the court reached opposite conclusion of the ninth circuit and the third circuit the fourth circuit and how that that just that just goes to notions of fair play and derivatives of coca leaves which are all part of the same element yes your honor but very weren't presented with the issue as it wasn't methamphetamine or was it cocaine and there's nothing to suggest that they would the court would reach the same conclusion is especially in light of harris and the jury instructions further in mathis the court the supreme court directed that if there was any lingering doubt to look at the indictment or the information that charged the defendant in this case the defendant was charged map with intent to deliver methamphetamine and no other such substance and the supreme court found that instructive to show that the nature of the controlled substance is an element of the  different offenses that would give rise to two different crimes there's there's no  the missouri supreme court to decide if the jury had to agree if the substance was methamphetamine or salvia and in the same context clearly the jury has to agree on who the murderer individual is it doesn't make john doe a an element of the offense but it makes the jury would have to agree on who the murderer individual w there's nothing to point definitively to the statute being not divisible when you look at the double jeopardy principles along with the jury instructions and the fact that the indictment charged methamphetamine and no the respondent argued two circuit court cases think there should be a little bit more information about one was henderson in the third circuit but that case really decided it was decided on the basis of a state supreme court from pennsylvania decision finding that the drug was an element and so it really stopped at the first step of matters which isn't the case here secondly the martinez lopez case in the ninth circuit there's two major differences there are number one the ninth circuit was looking at a specific california statute penal code six fifty four and it deals with whether or not someone can get sentences for the same factual act and so there it would put together things like possessing multiple drugs the same time you get secondly and i think this is really important that california jury instruction for a similar statute is much more specific so in it it not only has the same kind of language that we have  inserting the drug but it says to prove that offending is guilty the people must prove that and there's you know the different factors and three a is the controlled substance was and in that so they the jury instructions specifically tells the jury they have to find beyond a reasonable doubt that the substance was that chemical substance that was was included which is the missouri jury instructions are in not that that specific or that clear so i think the  with following the specific steps in the process at the second that we look at the state statute and here the structure of the statute is identical to the structure of several states