good morning your honour's may please the court my name is shannon sheppard i'm on here on behalf of the petitioner kirby luke i believe you did pronounce it right here on earth this case hinges on whether a state conviction involving a small amount of a controlled substance would necessarily be a felony conviction under federal law but your theory seems to be that before something meets that test you have to sit there and decide all the wa prosecutor might have charged the crime and that's a very sweeping claim because it's often the case that a prosecutor might charge a crime at one level and there's a lesser included offense sometimes plea bargaining happen yes your honor and there reason though that that the analysis does end up being more complicated is because under illinois law most drug offenses are felonies so for example of the the government even mentioned in their brief that simple possession under illinois law would have also been a felony so this particular drug of methamphetamine right it's right and under the federal law it's not as as this court has mentioned and the u s supreme court also the classification of controlled substance offenses under federal law tends to go along and practice based on the amount of the substance involved and here that was less than five great reviews got that federal law lets you any amount you want to methamphetamine as opposed to american there's eight forty four but that's marijuana no your honor eight forty four mentions that it is unlawful to possess any of the subs also mentioned by reference in section eight forty four which is the simple possession so simple possession is well i don't know i mean i think you're over reading it forty four a lot of it forty four is about saying you're allowed to possess controlled substances if you get them by prescription for example it might have a morphine prescription you're not allowed to have morphine just were to randomly but if you have a prescription you're fine it's a very long and sort of cumbersome statute penalty under a forty four would be not more than one year whereas of course the penalty under a forty one would be more than one year or so so what language exactly in a forty four you're relying on i'm looking at it  one which means that under the federal law i don't think eight forty one c means anything that you know this residual part of it forty one well forty one c it lists fifty grams to five grams and they list you know increasing minimum punishments for those amounts and then they just never mention anything below five grams so while it could still fall within to twenty years so why isn't that the end of because the supreme court in moncrief had set forth a two prong test so the test the first part of the test the government does meet here which is that the offense has to prohibit conduct that's an offense under the controlled substances act right but the second prong is that it must necessarily have been punished as a felony and argument your honor is that this is not necessarily a felony it could have fallen within a forty four it could even have fallen within a forty four a just say that because there is no minimum amount listed in a forty one b one c so therefore it could fall in there is true but it's also true of eight forty four and eight forty four eight because they also list the controlled substances including methamphetamines so so that's where the analysis does get complicated but i believe that the supreme court's test from moncrief also makes it more fair particularly for a case like this where the amount is minuscule it's less than five grams and even though illinois classes that as  what the purpose of the statute was in it were not that to keep people here that we're dealing with rooms we have to honor and you're right that the petitioner does admit that he has a conviction for a controlled substance offense the difference is whether it's classed as an aggravated felony and under immigration law the aggravated felony refers to trafficking offenses so just say that having less than five grams of a controlled substance makes someone who's been in the united states for twenty years without any other more than twenty years without any other problems as a trafficker is is quite a bit more serious than just the regular controlled substance offense in which case he would be eligible thank you your honor i just just to reiterate this court and the supreme court have have held that if it's not so much what the state court entitles the conviction intent to deliver doesn't necessarily mean trafficking trafficking the comedy send you sign back because every case i can remember so is that sort of the line between possession all by itself that's one thing possession with intent to deliver there are hundreds of cases that's a trafficking offense there is actually a case in the circuit you know as pacheco versus holder which we cited in our brief where the government actually conceded that  illinois conviction for possession and trafficking of cocaine was not an aggravated felony for these purposes for these same purposes and that they didn't go a lot into the analysis there but it seems to me that if the government would conceded in that case you know that that this would be a similar occasion but it has possession with intent to deliver possession and trafficking is what the case states that the government conceded was not an aggravated felony or out that case as a felony that under the federal law it wouldn't necessarily have ben and it's that that necessarily test for moncrief that you know the government does not meet the second prong of that here because they