good morning everyone welcome to the eleventh circuit and this is a treat for me this is my first time firstly to preside over a session of this court the good news for you is that yesterday's lawyers were the real guinea pigs you get day two so i yesterday actually said be middle district of georgia he has sat with this court before so he knows exactly what he's doing he is as i understand triple dog having received his bachelor's and master's and lot agree from the university of georgia he has the distinction of having worked both sides of the criminal justice system which is interesting both as an assistant da and as a public defender in a very distinguished career in private practice before being appointed to the district court bench and we're thrilled to have him with us so thank you for your service second order of business a couple of ground rules first please understand that we've read your briefs we've read the underlying cases we've read the pertinent portions of the record so there's no need for you to recap facts or procedural history we've got it just proceed directly to the legal points that you want to emphasize  second very briefly about our traffic light timing system green yellow red you'll understand that the red light when you see the red light go off there's no need to stop mid sentence but just begin to bring your presentation to a close and if you go on too long we'll let you know all right so we only have three cases this morning the first case is seventeen dash eleven zero zero two jones versus the united states attorney general honors and may please the court my name is ben osorio and i represent the petitioner in this case miss deon jones this case comes to the court from a split decision at the board of immigration appeals affirming the immigration court's decision that she had been convicted of an aggravated felony  her conviction was under sixteen dutch thirteen thirty one and the board of immigration appeals when affirming that conviction looked at that and said that they agree that you could infer an intent to distribute into the statute even though it was not explicitly there so there are first there are three things that both the government and i can agree on one the statute is indivisible that's never been contested here and i think that the court's recent decisions and center on and you know a francisco have confirmed that that's the approach that should be taken that the number of different alternative ways to complete the offense that are listed in the beginning are means not elements the second thing that we agree on is that an intent to distribute is not explicitly present in the statute anywhere so if we're going to get there you have to infer it and the third thing that we agree on is that if possession is the minimum conduct that would not be an aggravated felony drug traffic offense as defined by the i a e a and as given to us in the supreme court decision of lopez so can i ask you a question i think one of the toughest things about this case for me is trying to square up what the georgia courts have said about these statutes you've got on the one hand moran and hancock which seem to say you can prosecute and convict someone without proving intent to distribute and then you've got cases like jackson that say there's really no difference between these crimes in terms of elements using the word elements specifically how do you square those up so i think that the supreme court matheson to comp him have saved us that trouble and say look we don't really care what the state calls an element we don't care what the state calls an offense obviously we all know that this offense is called trafficking i mean that's the title of the statute at issue here but we care about what the elements that jury must necessarily find beyond a reasonable doubt and what the state has to prove so i'm jackson is confusing in itself if you look at page nine o five it in discussing because he's contesting both his trafficking conviction and the possession with intent to distribute conviction in the trafficking conviction it says no no a reasonable fact finder could have found you know based off the evidence presented that you possessed over twenty eight grams of cocaine and that's all that's needed to sustain a conviction and then later on going to the government's point they come in and say ok well actually possession with intent to distribute merges but i think that's consistent with the supreme court's decision and a cop saying there are many ways to complete this offense and in adopting the moncrief approach we have to look at what the minimum conduct is here so anymore and you know it included intent to distribute in his actual indictment and so he's complaining that finot saying look they never at the state never proved intent to distribute in the courts that well he didn't have to you know the state never had to prove it they never had to allege it so this conviction is fine and then you got the later case of hancock and the defendant complaining that you know he didn't knowingly possess over twenty eight grams of cocaine and he's contesting all these factors that the daughter courts come back and say no no those go to intent distribute an intent to distribute it it's not something that the state has to prove and that answers our question now george or if you look at it you know case record they've struggled with this lesser included what the actual means are what was required so they've gone from an actual evidence standard and then go on to the required evidence and drink art in two thousand and six so i  think their struggle does not affect what we're looking for here under the categorical pro choice and our definition and the i a e a and so since georgia has been consistent in saying you do not have to prove intent to distribute i think we're done there and i'm sorry no no no that's brilliant like you some inhale and you stop that's really impressive so what's your best response to the other side's point that it's just bizarre that you would have the second order a criminal let's say committing an aggravated felony because of the with intent to distribute element but the third or worse let's say criminal not commit aggravated felony without that element so and add on top of that  says that there were marriage because one crime was included in the l d s so i've got the jury verdict here they found your client guilty of possession with intent to correct yes ok so that has ten alum and they said that wording is almost identical except for the switch of the controlled substance and so this court had to contemplate the same thing in center on and in your francisco and i think that those cases control here and the reason that madame adair and white don't control you're number one those are not under the immigration nationality act we have an entirely different definition of what a drug trafficking offense is under the law in a and that's given to us in lopez so when there madeira specifically states we don't care about the elements we care about the type of offense that's what it says in midair midair that's the opposite of what we care about here here we only care about the elements of the offense and then in why this court discussed well the definition of a serious drug offense under the c c a includes this word involving and by using the word involving it specifically says it's going to be broader than the definition of a drug trafficking offense and so i think this court has already resolved both of those grab them and of the offenses under the categorical prochoice we only care about the elements and so i think if we're going to do it elements based approach we have to look at the elements as defined by the cop and mathis and those elements have to be what a dream must find beyond a reasonable doubt there has to be jury you know and nobody on the issue and if there is not the analysis is done and i understand again that we're going to end up coming out with this anonymous result however or i think this court can rest easy knowing that this person is still is still going to be a defense related to a controlled substance they're still going to be removable so in immigration judge is going to have to come back and look at this offense and say is this a serious enough offense to remove this person from the country poor is it really in consequential when we do because at that point they can adopt a circumstance the civic approach can you explain what you just meant by that i mean removable in a way that wasn't the ground the controlled substance wasn't the serious drug offense ground they brought so there were a number of have been consistent anomalies to the matter that they could do if they wanted to right now even if it is an aggravated felony they do it all the time the tourney general has discretion even right now not to remove her right well typically i mean there's no waiver available for drug trafficking offense and this time there's no statutory relief but this happens all the time don't they have discretion now not to remember there's no former relief that was to grant relief send it back to the board at some point we would bring her back our office has done it before you know right and i'm still can ask you a quick question just before going on the time all of the discussion in the briefing and below really was about whether this is a drug trafficking crime right is anybody given any thought to whether this is illicit trafficking which i take to be the umbrella term one aspect of which is the drug trafficking crime right and i think that was addressed recently and was in may which was before this court and you know nobody really there's never been a clear guideline definition what illicit trafficking is what that has always been defined to be is to have a commercial element and again if we're looking at the minimal conduct here i can pronounce that case choice and may have to how can you say that it's got to be a commercial purchase right and why they didn't proceed and that is that's even more problematic than this issue right and so if there's no commercial element and  again everybody's if that minimum conduct is possession there is no commercial i would say i want to leverage anything that's hot that wants not going to work for the government and i think we have to look at this the georgia legislature has chosen to make this easy for prosecutors to sustain a conviction in this way and by doing that they have made the offense very broad and so what's bad for criminal defendants tends to be good for immigration respondents and i'd like to reserve the  good morning may place the car my name is craig nall you have to turn in general so the only outstanding dispute in this case is whether the the act of possession with intent to distribute is covered is necessarily part of the georgia trafficking offense that and yes there's no explicit terms of possession with an intent to distribute but the statute is not to be examined in a vacuum we need to look to the georgia courts to see how they have interpreted and treated its own statute and the element of possession of the designated quantity of cocaine has been interpreted as necessarily including the conduct of possession with intent to distribute so what do you do then do ask you the reverse of the question after adversary what do you do with cases like moran and even more so hancock because  hancock the guy is acquitted right of possession with intent to distribute and then is convicted of the third level offense the trafficking offense over an argument that no i can't be convicted for this because there is no with intent to distribute element in the court says no matter not required yes i think those two cases them are moran and hancock are not as dispositive as mr jones and sizes hancock from my research  georgia case law is the only case i could find where someone was acquitted of possession with intent to distribute and but was found guilty of trafficking and that does seem like an anomaly but the the key point that mr jones takes from that point that possession with intent to distribute is not part of the trafficking of fent comes from i think a quirk of hancock's own hancock he argued his soul argument on appeal was that he did not knowingly possess a trafficking amount so he's not even raising something about possession with intent to distribute he's saying i didn't have because i dispute that i had possession of the twenty eight gra cocaine out of his car and in the green case the person through the drugs away when the cops are approaching and so when the corps addressed his his argument they first said they said that this green is not political that possession with intent to distribute case and here you only have to prove to twenty eight grams so that's where that comes from but the real resolution is he was disputing the jury did not believe his testimony that he now  someone threw the drugs at and then he threw him out the window so you never had possession of twenty grams and the court says no you know that the jury we have to defer to their determination on credibility hancock is really an anomaly and you take it in the face of i mean jackson and provocateur and and the gilbert case i mean those specifically say that they're that the only element that's additional to the trafficking is the amount they are the say that there's nothing included in the possession of that intent to distribute offense that's not included with trafficking you cannot be convicted of one about the other but you agree right that with that we are charged with looking solely at the elements right yes and you agree that in math us the us supreme court says what we mean by element is a fact required to be proven beyond a reasonable doubt and found by a jury as distinguished from a fact which is something that defines conduct but doesn't isn't required for a verdict right and then you agree that moran and and and hancock bo say very clearly there is no requirement in the statute that the state either a ledger prove that the defendant had an intent to distribute cocaine so the the least required conduct which moncrief says we have to look at does not include you don't have to prove that to convict this guy you don't have to prove intent to distribute to convict this guy and that's the element as defined by math right in in in math this when they talk  something that the jury has to find beyond reasonable doubt and they distinguish it from like you said what it was called the proof facts of these mer real world things but with respect to this given that georgia case law the  have said several times prosecutor you don't don't worry you don't have to prove that you don't have to prove that right so it might be a fact of some legal consequence but not to a verdict but by proving that the prosecutor has proved both that the person has committed trafficking and a lower level possession with intent to distribute as what happened here in ms jones case she was convicted of both and then the trial court judge merged the two convictions  i'm looking at jackson in fact they talk about that jackson actually cites hancock and says we've already hell intent to distribute is necessary to the crime of possession and it satisfied with a reasonable inference and it goes on and says therefore the distribution of finance that is the possession with intent to distribute quote contains no unique elements not satisfied by the trafficking advance and the distribution of offense was included in the trafficking and then it actually cite hancock i mean i don't know how to read hank up but that's how they write so interesting is their own president some people in georgia say if you keep looking long argue as we don't have to decide if they only convicted or trafficking here we know that you're right we have a fat content to distribute it distribute it and they merge the two so she didn't have two senses to harbin affair and we don't need to worry about what general principle so can i ask is to follow up question and i true is because i'm ignorant of this learning but in a categorical rule case can we look beyond the face of the statute to the  ancillary documents the jury verdict form and the like yes i think that in math as the supreme court advises that you need to look to earth or tape of sorts as state law the best would be something from the georg they george and now because of that drink or case does the report evidence has and i know that the double jeopardy analysis is not exactly the same but has a similar you know if you're looking at whether both offenses  require the same proof of something and if something is off and then there's not a double jeopardy violation but when they're  if we were to take miss jones as reading and say that possession with intent to distribute the second level case had this unique intent to distribute element that it could not be a lesser included of the trafficking has a sentencing a handsome part of the statute for someone someone who's been convicted up to possession with intent to distribute crimes and so gilbert he had a prior conviction for trafficking the highest level what we have here and the case bar there was he had a conviction for possession with intent to distribute and the trial court and hansa sesh enhanced his sentence based on that prior traffic and  argues that the court couldn't do that my trafficking didn't include a possession with intent to distribute it can't be used as the hanssen statute says it needs to be a possession with intent to distribute and gilbert using the same logic as the lesser includ said that the intent to distribute which is necessary for the crime of possession with intent to distribute is satisfied by that same inference and so then the trafficking a prior trafficking  offense can be used to enhance a sentence and that shows that that there is a legal there is a legal consequence in effect here to this phrase possession of x quantity of drugs that goes beyond the mere face of the statute and that's why we need to explore what the the state courts have said about it they are the ultimate expository of their own their state's loss and let me just ask a quick question just to make sure i've got this straight so i understand the argument we're having about the text of the statute and what the georgia reports of said but to judge holes question earlier she was saying you know my suggestion is that your better argument is that never mind in this case because we've got a jury finding look at  case i mean it's the peak is a way when you don't have something right on pop point from the state courts the pick is really helpful to see how the statute works in practice and here you see what happened that she was  convicted of both they merged she was charged with both under georgia under georgia law the prosecutor if it's known at the time is that is required if he knows there's two crimes that could arise out of one incident that he needs to charge them and that's what happened here and then they just merged and on the other end the defendant and in fact i'm not really sure we have to go so far as the jury verdict we  know from the state court record that she was convicted i mean nobody's really disputed that here and and it merged into the trafficking yes  what struck me as a lot about this case is we've had all this discussion about the statute but the indictment doesn't track the statute the way i read it in other words it is in terms of trafficking in terms supported by the evidence and there was a conviction on the trafficking charge now the way i read the supreme court cases is that the big problem that they're trying to avoid is this large scale facts c e o trying to go back and find of something that happened ten fifteen years ago but in this particular case the indictment is clear about what she was convicted of trafficking i don't understand how traffic can can not have an intent component to it how can you and then give you the opportunity to respond to this how can there be a trafficking crime that doesn't have the comparable intent to the controlled substance act where you have the end can't to distribute cocaine there cannot and in georgia in practice the spite this statute being worded slightly differently from the federal  felony statute if someone is if someone has been convicted of trafficking based on that possession of twenty grams or more they hadn't necessarily been convicted of possession with intent to distribute the only outlier is that hancock case i do believe that's explained by the type of argument mr hancock made if i was when i read the hancock would have thought if i was hancock i would argue it if i was acquitted of the lesser included offense how could i have been convicted of the greater offense given jackson and provide can ask you one question before you in that time i want to make sure this may be like the hinge for me in this entire case i want to ask you about the speak yes so i'll go back and check but i thought that math a said that you could take a peek at these documents the indictment the verdict form but only to determine whether we should be applying a categorical rule or a modified categorical rule and here we all agree that we're applying a categorical rule and so is the matter speak still available to us or now that we're in categorical land are we looking at elements as defined by the statute and perhaps by the georgia courts right they the peak was referenced with respect to the modified categorical whether were it to determine whether they divisibility whether there are means or elements but that the peak goes back to the fact that math  applies to both levels the very first level and the second level we cannot just look at the statue in a vacuum we need to it is more straightforward if you do that but you end up with anomalies and you don't end up with what actually someone is being convicted under georgia law what is the what is the minimum conduct criminalized and to figure that the minimum khana criminalise we look at the elements and how those elements are defined by the georgia state three minutes like you're on it so so quickly i notice that the government sort of switch positions on what the peak includes going to judge new sims analysis and everybody agrees that this statute is indivisible so we using the categorical approach the peak only comes again if you're looking at modified should be applied here and so we don't get to peek at the indictment on count one and say oh while we're here let's also peek at count two that she wasn't actually convicted of yes the jury found the verdict but because she wasn't sinister on it it's not an issue before us today so we know what the elements of this offense are and nobody's even included a conversation about the jury instructions here so if you go and look at the jury instructions again intent to distribute is nowhere to be found and they in the record the jury introductions and the record they are not i mean we cited to them but they were not in the record that we include it and going to your point judge those were named trafficking statutes in florida and this court still found that under the i m a that the elements of those offenses did not rise to the level of an aggravated felony drug trafficking offense as defined in lopez and so i  agree we're going to end up with this weird anomaly but that same fact pattern happened in center and you had the same structure in florida that you do in georgia so this court has already felt comfortable creating th anomaly and furthermore going to the lesser included point i looked for a long time and could never find a supreme court case saying look let's look at what the lesser included offenses are they consistently said and clarified further over the years that we only care about what the elements a jury must find beyond a reasonable doubt and we know both from the jury instructions and the case law that you do not have to find beyond a reasonable doubt that a person had opposed possession with intent to distribute lesser sam we now take a peek at anything except it if we just had all my jackson do you lose no delay i have jackson is the cause is not in the statute on the statute if you focus on the first part of jackson i think it's page nine o five where they're discussing the trafficking offense itself and the the individual the defendant is contesting you know that a jury could have found him guilty of trafficking and they looked at it and said no we can say that a reasonable fact finder could safely found that you possess over twenty eight grams of cocaine there was evidence that you possess one hundred ten grams so jackson i think answers us the question and again in central and and you are francisco they were lesser included in those cases as well florida had inference was also discussed in james that's discussed in white and both of those are eleventh circuit cases so i know my time's running out here but i would say that clearly there is conduct outside why doesn't help you know that i think white does help me because white says that in the same way that you could have the inference in midair you could have the inference in the alabama statute and james does help me because it's said in the statute as well given the amount that we can infer into the