may please the court my name has been a can counsel for at least the run so i'd like to reserve two minutes for rebuttal the government failed at each crucial step in this case to show that mr the renzo is subject to removal mr the  united states has lived here for thirty five years and has now been immigration detention for almost four years but there is no basis for his removal or for his own going to tension the government was required but failed to show or even explain why his california crimes of conviction are not broader than federal controlled substance law even though california covers more isomers than does federal law and to compound matters the government failed to adequately document the specific state offense to which mr the rens a plea to guilty so whether viewed under the categorical approach or the modified categorical approach the removal order here cannot be sustained turning first to the categorical approach california's definition of methamphetamine is categorically broader than the federal definition because california law covers more isomers than federal law does the government did not dispute that before the i j a they did not dispute it before the b i a and they have not disputed it here the government's primary response to this argument and its brief was to claim that mr the renzo had waived this issue but we devoted a full page to it at page sixteen of our opening brief and we preserved it both before the i j a and the the government only other argument is to say that this court rejected the same argument in vegas ortiz but vega ortiz presented a different issue that case involved l meth which both federal and state statutes appear to criminalize but federal law elsewhere creates an exception for the question was whether the state might recognize a similar exception in short that case did not involve a state statute that was facially broader than its federal counterpart this court explain infidel united states for eighty eight f thirty eight forty four that when the text of the statute expressly includes in its definition that which is expressly excluded from the generic federal definition the statute is overly inclusive and there  no need to inquire any further that is exactly the case we have here and that over breath and state law decides this case your honour's have asked us to be prepared to discuss both adams and schrader those cases confirm that the california law drugs all of one kind cannot be charged as separate offenses that means that the single offense of possession of methamphetamine encompasses multiple means of committing the same crime some of which are means of scuse me some of which are not movable under the modified categorical approach either the supreme court has emphasized time and again most recently in mathis that the modified categorical approach should be used only in a narrow set of cases where we are sure what offense a defendant pleaded guilty to and the bottom line from panel decisions of this court including both tory jimenez which the government relies on am edina lara which we have relied on is that the modified categorical approach is not a valid endeavor where there is a reason to doubt the connection between the charging document and the minute water or abstract of judgment image you know lara a simple miscellaneous a appearing on the absent excuse me on the abstract of judgment cast enough doubt that the court could not draw reliable conclusions about the offense the defendant there plead guilty to there are several facts in this case that in combination undermine the reliability of the scant record evidence the government has presented first the minute order in this case notes that mr the renzo pleaded guilty to counts one in two and then notes that the sentencing court dismissed the balance of the charging document but there were only two counts in the original charging document and the r critical facts in this case as this court recognized in both the dow and medina lara when a defendant pleads nolo contendere under people of the west california courts allow oral amendment to an information without any requirement the anything or that there is even a docket entry both cases cited sand of all which noted that this is happened in a number of cases and said there is no talismanic significance to the existence of a written information in california courts but this case goes even a step further because the government did not even introduce the docket so there could have been an actual written superseding information and we would have no idea the government has not cited any case where there is no docket she record acknowledge that state law allows oral amendment and where a minute order indicates that the balance of the charging the balance of the charges were dismissed and yet a court held that it could draw a link between the minute order and the original charging document the record here is thinner than any case that the government has cited in which it prevailed under the modified categorical approach and would mark a further departure from the doubt we do not have the plea agreement or the plea colloquy shepherd originally envisioned nor do we even have a docket sheet that would at least indicate that no superseding information has been filed and the minute order here lacks the critical phrase as charged in the complaint in the face of such uncertainty the government cannot show that the link between the charging document and the minute not list methamphetamine methamphetamine alone is not enough because california law is broader than federal law that even where the court to apply the modified categorical approach it wouldn't matter because we don't have the specific isomer or salt etc that mr the runs it was charged with deny the petition for review since the main briefing in this case your honour's i think the central dispute in that main briefing about just the divisibility of these california health and safety code statutes has been resolved by this court in martina's lopez the on b methamphetamine but so far as the record shows there's no evidence that there are any geometric isomers of methamphetamine at all the mention of geometric geometric nothing no difference covers it doesn't say that for methamphetamine specifically your honor it's a blanket provision that applies to that division of the california health and safety code as a whole section eleven zero three three  and it only applies to the extent that what it's saying you know what exists in the world so you know some some some substances may have you know multiple kinds of isomers some would necessarily have multiple kinds of isomers so far as we know there is no indication in this record that there is such a thing as a geometric isomer of methamphetamine there's just no showing up that so that's i think one problem there may be geometric isomers of other things might you know perhaps cocaine or i believe is one  mentioned in here but we just don't know that at geometric isomers exist at all for methamphetamine on this record there was no evidence submitted on that so far as i'm aware the second issue your honor is we get to the issue under  that there are no the the immigration judge here did rule them out your honor the the judge alluded to scientific evidence i don't believe that that's in the record but it does come back to the burden point here does rest on the petitioner as says that when you have you know a statute like this that you know on its face for the most part matches but there may be some theoretical application of over broadness you look to see whether the state actually prosecutes the offense that would make it overbroad and to do that they need to show that it happened in their case or in some other case from the relevant state jurisdiction that's two in it it at one ninety three your honor reaffirmed in moncrief and here we just we still have no indication that california actually prosecutes geometric isomers we don't as i said before is why i was emphasizing earlier that we just we don't know that there are geometric isomers of methamphetamine well let me see if i can summarize where i think your argument is one you seem to be conceding that on its face the california statute is broader true i e i wouldn't c that your honor because i think that this court has i mean i just don't think the geometric isomer piece applies here and i know that i mean it on its face leaving aside the question of the chemistry it would seem on us face  whether the particular isomers come in multiple forms here and i mean so far as we know i mean the schedules you know if you're going schedule a schedule they i mean they match up as far as salts and salts of isomers and just given how many times this court has applied the modified categorical approach to methamphetamine your honor i'd be reluctant to make any you know statement against those those decisions and i'm not arguing about that i'm just trying to take it piece by piece i mean as i look at the statute that's different now your second argument is they're actually not different if if you're looking at the chemistry and prosecution that's what i take your argument to be but if you're saying that they're the same then that's the language is different they refer to they refer to geometric isomers and you're saying just again we didn't get to the l the math and mouth and the math issue i'm sorry say again you're i mean there are different if you look at the for example in the so called doping scandals and the olympics they do make a difference between al math and the math nothing and those are those are structural differences of methamphetamine right but my understanding is i'm not i didn't even minor in chemistry chemistry your honor but my understanding is that both of those are are that still optical isomers if the so i believe that there are two different kinds of iced earth that are both optical yeah and so far as i've been able to find out that's that's as far as it goes it just doesn't reach geometric i substance and then it mention you know it dismissed to the extent there was anything else in the charging document the balance of that document making clear that the minute order was keyed to the charging document mansur that that you are assuming absolutely thank you your honor i mean i see your point that you know if it's overbroad you know that under under matheson and like cases you know if you just categorically overbroad period full stop and meets the to point your honour's first we agree with the government the record here does not show very much one way or the other however that resolves this case in release of a dow one that's for seventy three f third at ten seventy six this court held that the plain language of the eye in a requires the government to prove that the substance underlying an alien's state law conviction for possession is one that is covered under section one hundred two of the controlled substances act to the extent the record is silent as a failure of the government not of mr the renzo at that turns the government's argument about the realistic possibility test that is with the b i a said however the government did not endorse that test and it's brief and the reason it didn't is because this court has rejected the realistic possibilities test application in a case like this where the state statute is facially broader than the federal offense that's in both the dow and grisel as i mentioned in the first part of the argument the dow says that when the text of the statute expressly includes in its definition that which is expressly excluded from the generic federal definition the statute is overly inclusive and there's no need for the sort of legal imagination that wayne is alvarez and then mo exception to what federal statute the federal statute offered this is not that case if you're honest have no further question we would ask that you grant the petition for review thank you for your argument please just argue to be submitted for decision thank you both