determined that the definition of cell under the new york marijuana statutory scheme does not require remuneration therefore the only issue in this case is whether just over twenty five grams of marijuana is a small amount under the control substance act the minimum conduct under two to one four five or the giving of just over twenty five gallons of marijuana which is a small amount under the c s a for two reasons first the minimum conduct it's under the thirty gram amount recently recognized by the seventh and fourth circuits as a itself at least in its published opinion correct your honor thirty gram imam correct ok and second even if this court does not decide that just over twenty five grams a small amount this court still ruin mr hilton's favor because under new york's aggregate weight rule to do one for five actually reaches amounts far fewer than twenty five grams and lastly the government's position that realistic probability requires case law for plain terms of the statute is incorrect so first  grams as a small amount and in the sessions the government argued that thirty small amount is exactly thirty grams or that we should use a thirty gram guidepost as recognizing castor rodriguez and similarly and the fourth circuit decision just says that small amounts will not be treated as felonies but as mr right that's why we're having this whole discussion right the the federal law does not define small and now right correct t have kind of creative a band for example the third circuit and cat will said that one hundred twenty grams is not a small amount this court and out and said that twenty thousand grams is not a small amount of federal criminal law is that it has to give notice to the people who are committing the crime of what's prohibited do you think that applies to the distinction between felony and misdemeanor well under that someone has to be given clear notice small amount one of the cases was troubled about this in different contexts suggesting that thirty grams on the street might be viewed one way thirty grams slip to a prisoner might be viewed conduct should be just over thirty grams and i would just like to remind the court that the new york aggregate weight rule the new rule actually makes convictions under twenty five grams under which you want for five the statute specifically criminalizes the preparations compounds mixtures or substance of an aggregate weight of more than twenty five grams and then the jury instructions are get weight is defined as the weight of  substance contained containing marijuana irrespective of the amount of marijuana actually in the substance and this is consistent with the way that new york courts apply the erring aggregate weight as we showed in our brief page thirty three to thirty four and and because of this something that is just over twenty five grams could have as little as less than one gram of marijuana the government's position that realistic probability requires case law for plain text of a statute is incorrect the requirement of additional case law is only necessary when counsel is advancing an argument that stretches the statutory language beyond its plain meaning here we are using the plain terms of the statute for example sell is defined as sell exchange give or disposed to  the plain terms of the statute for example to give or what over twenty five means however because because cell is defined as given to the new york case law that would actually be never litigated up to create publish case law for example if a criminal defendant was given twenty six grams of marijuana his and his attorney would have to tell him that under new york law sell and give me the same thing so he has no defense and lastly if the court has no further questions i would good morning your honors me please the court alexander alludes to the respondent your honor there are a number of points in petitioners presentation that i'd like to address but i'd like first just to briefly take us back up to thirty thousand feet for a second and point out that the petitioner's argument involves equating a state felony to a federal misdemeanor and in order to do that the petitioner is attempting to define the boundaries of the state felony and the boundaries of the state or the federal misdemeanor to which he's comparing it and the mechanics of the realistic probability test by which the two are compared and i respectfully point out that why would we get to a realistic probability test if the statute says twenty five grams that's and  giving not selling well respectfully your honor that is if ink we're honored make a couple of points in response to that question in the first is a point that we reiterated throughout our briefing which is that a forty one before doesn't focus specifically on a weight it refers to a type of conduct which is social sharing that's why we don't see cases that are pending that statute to a fixed way we've seen some cases that say for example fifty pounds is not small eight ounces it's not small but no court has yet found the floor and i'll turn to the fourth circuit and seven circuit cases that the petitioner brought up in just a minute but to continue to answer your question your honor we point out that this statute does not facially refer to that type of social sharing conduct if we look at the type of cases where courts have said a certain type of non generic conduct by which i mean a type of conduct falling outside a federal generic definition is plain on the face of a state offense we see explicit language like in the first circuits opinion in swabia where the rhode island statute literally said a drug outside the federal schedules or the tenth circuit still opinion where it said the statute literally said felony pointing firearms could be violated by pointing a firearm in jest which took it outside the scope of the federal definition but here the type of conduct that would take us outside federal felony distribution of marijuana and into the misdemeanor provision would be this type of social sharing conic the statute doesn't facially apply to that you take the position that weight is not the problem here that that it's the conduct that brings him within the felony provision essentially yes your honor certainly weight is a factor because courts have held that there is some way it's like above a certain limit like maybe eight ounces or fifty pounds or something where it would be impossible to imagine issues socially sharing that quantity but we are arguing as it's defined by a type of conduct not by a way that's borne out in the legislative history that's borne out by this court's opinion in ten and more recently in martinez vs mckay s where this court said there is a reason to consider the activity mostly contemplated by everyone is that before we get to this social sharing part we we start with the terms of the statute the statute doesn't limit distribution marijuana for no remuneration so the only thing that's required is that the distribution not be for remuneration it doesn't matter whether it's social sharing whatever that is it's just that it statute then i ask how does anything else matter other than whether it's a small amount well because your honor the statute doesn't define small amount no kidding i'm not sure that helps you while you're on i think the reason it doesn't define small amount  court on a forty one before charge how does a court know whether it's got a small amount or not your honor i'm not sure and i think that at extend given that the published opinion says thirty grams is the benchmark why don't we why don't we you know hold the agency to what it has said and take the view that this is not a small amount well you're on a first this is a small amount rather a small amount statute i understand your honor and first of all i'd point out that the board's decision in that respect only said that thirty grams is a useful guide post and there's a big difference between a useful guide post and a bright line  under stand that but still you've got a statute now that covers twenty five to thirty grams you want us to say it's a felony but you've your agency says less than thirty grams can be a misdemeanor it can be your honor but it's not linked purely to the way it's a we've got to do a categorical application here that's true your honor and i'm not asking the court to look at the facts of mr hilton's crime what we're asking is for the court to look at how the state statute has been applied with reference to other cases and how the federal generic offense has been defined with reference to other cases we're not asking the court to step outside the categorical approach just to look at how this statute realistically is applied not just what its text theoretically could reach seems to be just a dodge that's you're saying don't look at his case because we don't know the facts of this case that's the reality here we're going to we're going to you know cite cases that have been published but we don't know anything about cases that haven't been published which could be actually the more trivial ones because nobody has an incentive to appeal so i'm not sure that that helps us very much your i agree it's certainly possible that there are other types of cases there on publish but this is an inherent difficulty in the nature of the realistic probability analysis the supreme court said and join yourself in reiterated in moncrief that where petitioner wants to argue that a state statute reaches non generic conduct they have to show realistic probability not a theoretical possibility and it's our position that if this court is to define it for you one before as a fixed weight as saying any non remunerative transfer of marijuana above a certain weight is a felony falls outside eight forty one before it's going to be the first court to have done that the seventh circuit case in the fourth circuit case of the petitioner sites do not squarely state that proposition they reserve for later you would expect to find any post office when something is sufficiently trivial you just don't see published cases about it where would you look to find this where i know we might look to convictions and if we can look to the structure the state code for example to see how the statu is applied i understand your honour's point that relatively trivial infractions may not make it to the appellate level and result in a published opinion i think that's a problem that we face across the board of the trial court level for that matter well your honor this statute prosecuted some drug cases and what you haven't given us is any age forty one before work your honor i did try to look for those types of cases and i there the amount of case law defining the outer parameters of a forty one before is very slim again when i was chief of narcotics marijuana listens a boatload i understand your honor well i think if i wanted to make one final point with the times left to me i turn the court to the structure of this new york statute and how it relates to other provisions in the statutes meant on the books for decades and we do see convictions appellate records that show both the quantity and issue and discuss remunerative conduct so it's not as if there's a complete lack of case law out there to applied it's just that it happens to undercut the petitioners position but it is there that also point out that new york has two misdemeanor statutes that have been specifically held to applied to this type of offense that get someone deported it has to fit the federal definition i understand your honor's point yes and i think that that gets to the heart of the degree with no i don't your honor because i think that gets to the heart of the difference between a realistic probability and a theoretical possibility understand as ready as question to be that if two twenty one to twenty one point four five could reach nine remunerative transfers of twenty five grams does that not necessarily meet the federal fence and i would say no because even if the statute could theoretically be applied to the type of social sharing conduct that courts have held at forty one before to encompass we have to actually look at how the state applies it not just what the text of the statute says that over a stands for and if there are two other misdemeanor statutes that have been held by this court and supreme court to apply to that type of a forty one before conduct and there are cases showing to twenty one forty five being applied to r transfers but not to this type of social sharing conduct in the just your hasn't set forth a realistic probability you know we're a little of far from where we are the real point here the defendant is ordered deported because he has a prior conviction for an aggravated felony right yes your honor and you want us to say that a conviction for dealing between twenty five grams and four ounces of marijuana is an aggravated felony categorically no your honor we want the court to hold that the petitioner hasn't shown a realistic probability the issue can be left for another day it's the petitioner that's asking the court to set the parameters of eight forty one before conduct that's a much bigger holding thank you i'd like to address three points that the government made first the realistic probability test that they require which to produce cases even when the statute is clear makes the categorical pro choice unworkable if the conduct criminalized is clearly written in the statute it will not be litigated and will not be reflected in the small fraction of cases that are published the legal databases and i'd like to note that this court does not require additional cases when the statute is clear the most obvious place to look for the minimum conduct criminalized under two twenty one forty five is the actual words of the statute that the new new york legislature enacted give means give twenty five means twenty five and the government has not disputed this evidence of cases is not necessary to show that there is a realistic probability that new york to twenty one forty five criminalizes a giving of just over twenty five grams of marijuana second the government asked this court to define the federal generic standard by law of small amount by looking to other new york statute to the new york statutory scheme this is inconsistent with the categorical approach and the supreme court firmly rejected this approach the generic federal standard does not change from state to state just because two twenty one thirty five could criminalize one forty one before conduct that does not mean that other new york statutes cannot do the same just as this court held for two twenty one forty the question is not whether the conduct should be punished under other statutes but whether two twenty one forty five could encompass this kind of conduct courts should only be looking to the minimum conduct under the statute of conviction and compare it with the single generic standard which does not change from state to state if it change from state to state would not be generic conduct and third the thirty grams established guidepost for small  amount and the finding of just over twenty five grams of marijuana for no remuneration if this court finds that just over twenty five grams of marijuana for no remuneration is an aggravated felony it will create a circuit split with the seventh circuit and as the seventh circuit observed in many ways nothing in moncrief supports the conclusion that the possession of just a tad more than thirty grams of marijuana can never be punished as a federal minister here and is the government recently argued in the fourth circuit for the conviction issue in that case and i quote directly from page twenty two of their brief is not quote a categorical drug trafficking crime because it allows for a felony conviction for less than thirty grams of marijuana for no remuneration in that was briefed on november twenty seventh of twenty seventeen and i'm happy to provide this court with the copies of the government's brief in that case so because mr hilton's conviction is not an aggravated felony we asked