florida drug convictions as drug trafficking off and says this was over mr guzman's objection and he contends on appeal that it was in error it is undisputed that florida does not require the prosecution to prove the mens rea of knowing as to the illicit nature of the substance involved and the question before this court is whether or not florida drug conviction would still be a drug trafficking oftens under two one point why isn't this case easily resolved into richardson by saying even if there was air the court correct considered both sets of guidelines and therefore any and said that the court would still give the same sentence and therefore any error is harmless the court did not clearly say that it would give the same sentence and it was clearly influenced by the guidelines it caught calculated correct the incorrect guidelines as forty one to fifty one months and then gave a sentence at the bottom of that range fifty one month and another initial question of the error is important to determine because of the court's repeated consistency at looking at the commission era contemporary definition of the austins listed in the drug trafficking office until one point two as it applies to carry categorical approaches can the elements of a state conviction to that federal definition and the court has repeatedly looked at the federal controlled substances act to help inform what that generic contemporary definition of the office is it did so in ray's mendosa when it was trying to decide what does manufacturing a controlled substance name is simply knowing that the purser precursor that is manufactured that it's going to be used in a controlled substance is that sufficient and the court decided that it was not that instead there had to be an intent to manufacture that ultimate controlled substance and it did so by looking at the plain meaning what's the common understanding of cost of manufacturing a controlled substance and also looking to case law both cases interpreting the guidelines and the federal controlled substances act in order to support its conclusion and the court has further refined that approach in taron solace when it looked at what does administer in maine does the fact that texas administ controlled substance include acts that are not necessarily criminalized by the federal controlled substances act still make texas either a convicted drug trafficking offense or not and so the was using the federal controlled substance as a source in defining what that generic definition is and here the federal controlled substances act is quite clear that a knowing mens rea it is required as to the illicit nature of the substance uniformity as to what it means to be convicted of a drug trafficking office and florida does not fall within that general definition and for that reason mr guzman's prior florida drug trafficking often says should not be considered excuse me his prior florida drug conviction should not be considered as to a one point two just trust him so i wanted to ask you you said the court didn't explicitly consider the once months even if the proper guideline calculation range is eight to fourteen months so how can you say the court didn't consider under richards and both guidelines and still give the same sentence if i said that i misspoke because  court did consider both ranges of the court to not say explicitly it would have imposed the same sentence the court said it would have imposed the same range and i believe that distinction is important because talking about a range again  the guidelines and what does the sentencing commission consider to be an appropriate sentence and in the court referred to that range does not indicate that the court was necessarily more to saying if i sustained your objection and then the guideline would be eight to fourteen i would then very upward to forty one to fifty one so we're back to forty one to fifty one and then i get forty one so he's got the court has gone through the idea we get the forty one to fifty one now i think it's really is forty one to fifty one and either way i get to forty one months i mean you're basically making it have to be like magic words if the court has to say and i don't think richardson or any of the cases say that the question is did the court give due consideration to the right range and here very clearly i mean to me this couldn't really be clear how could it be clear it's clear that the court knew what the correct range could have been and disagreed with that range but the court did not clearly impose the forty one month sentence regardless of the ranges and that i believe is makes this case different and and because of that distinction the government is required to show more that the court would have imposed the exact same sentence for the same reasons in the record the court did not even cite to thirty five fifty three the sentencing statute and there was no reference to the crimes are janet says thirty five thirty three goes i believe it's a you're ok i mean we knew but that indicates perhaps a lack of different disregard for those federal judge for fifteen years they don't know the sensing factors and saying it's not clear in the record that he considered the sentencing factors regardless of the guidelines to impose this sentence and and judge  the court asked for a further supplemental briefing regarding the decisions of the lay and raise mendosa i believe i answered that in my supplemental letter brief explaining that away is different than the drug trafficking often says because a a clearly defined offsets of forcible sex often says in the kind of violence definition of two out one point two and that was the basis for the court's holding in l a that it did not need to find a specific mens rea are attached to the forcible sex offenses and because the court house recently in town solace in martinez lugo and gomez of rows look to that generic contemporary definition and use the federal controlled substances act as an important source for informing what the definition is i believe this court should continue without approach and apply the same are like to take the issues of social order and talk about they are the harmless error aspect i think this case is pretty interesting with regard to that the court was well aware of the guideline range of eight to fourteen months if i'm sorry the court was well aware of the the guy cricket language of the sixteen level offered some was found to be incorrect and this is an unusual case because the eighteen and fourteen month range was not only emphasized by counsel it is in the pre sentence report the pre sentence report if the guideline range of error of the guideline adjustment is found to be incorrect the pre sentence report has the correct guideline range of eight to fourteen months i don't think i've ever seen an alternative sentence case where the where the p s r has the correct guideline calculation already with the removal of the potential there at the sentencing hearing the probation officer said he reiterated his position that he didn't think the sixteen level increase should be imposed but but that without the sixteen level increase the range was inadequate and then the prosecutor said this involved for cocaine sales that if the sixteen level increases not imposed then the cocaine sale should be found to be qualifying transactions and the court completely recognized that this was open for dispute and could be reversed on appeal but still found the forty one to fifty one region appropriate and the court's remake of the argument that the court didn't say he said if he overrule the objection and i mean agree or sustain the objection is that all right the proper range is eight to fourteen however i'm now going to vary upward to forty one to fifty one and i hereby now sense of forty one how would that be different from what he did it would be a better magic words but that wouldn't be any different than what the court did i think that this the case that i twenty jade sanchez is a published opinion and that continues with the idea that that that we're going away from some magic words and sanchez talks about with a sense of court indicates that it wants to move the objection the guy pledge action by in effect granting the objection and then imposing the same sentence that that's an indication of i guess my point was a little bit more refined and that is if the court had actually said you're right defense counsel sixteen level doesn't apply i hereby agree with you now that would mean eight to fourteen however i now also find that i should very or depart upward you typically very depart upward to any range you get on to part you have to part up to arrange very that's typically  works too it's just which ones under the guidelines which once not that's a difference between very departing you go and you say let me look for the correct range and that would be forty one to fifty want now i will impose a sense that is exactly how you would do it i mean that is the correct way so it's not even a man of failure of magic words it's actually how the process works in the court the reasons for the alternative sentence was his history of drug convictions his prior five year sentence factors and the need to protect the public so i don't think that the alternative sentance harmless error as is is probably the best resolution case but the guideline issues very interesting and the question in the guideline issue is whether this court to impute the mens rea or the federal drug trafficking statute as to knowledge of a controlled substance within dispensing but here there's no issue of it he was turning the state statute he measured against the guideline definition there's no word that requires for the definition  gomez alvarez involved a situation where the judgment was unclear as to what controlled substance was involved in the court found over breath because the schedules were broader in the federal statues and him and that's because controlled substance didn't commentary without any definition to informed and they resort to just labels and or precedent teaches us we can't just look to labels we have to compare elements to elements what does it mean to distribute a controlled substance are consistent with the generic contemporary meaning of the enumerated oftens that the commission was contemplating when it adopted the definition when the commission adopted the definition of drug trafficking often says into a one point two  opposing counsel is incorrect is correct in that it can look at the state codes it can look to modern treatises it can look to model codes and that is what the supreme court teaches us we're supposed to do in the categorical approach it's not just the federal controlled substances act but in this case mr hooper's months case it so happens that the federal control substance found is consistent with what the majority of state codes and the uniform controlled substances act require and that is a oftens now the court said that it would abide by the guidelines at the beginning towards the beginning of the sentencing hearing he said that mr guzman was was lucky for that and so the guidelines were  that anger in the courts mind when it calculated what those guidelines were and how the other ones before it but it still calculated the guidelines as forty one to fifty one as it is supposed to do what are the guidelines and then in the guidelines of as the judge is a knowledge would incorporate a departure typically missed in practice and not that i've been involved with the judges then vary from the  florida drug often says in two thousand and seven when mr guzman was twenty two years old and the need for just punishment the terms and rehabilitation to decide what is the proper sentence in this case and