it's in an arcane area of the law all the supreme court has imposed the pony the lower courts and self will asked half a dozen or six or eight years and it has to do with the arm career criminal act which provides increase penalties for people with prior records consisting of convictions of certain crimes and the issue in this case or at least core issue is whether drug trafficking by purchase as defined in florida law involves the possession with intent to distribute a controlled substance are so i'm positing the lawyers will argue the actual issue but i think that last argument probably you can come in from the outside and it makes sense you know what's lascivious what's the context in which images were taken in the mental state and how does that a fact i don't promise you that this argument is going to make as much sense but that's not the attorney's fault and i hope it's not our panel's fault it's the law that we were struggling with from the supreme court and the supreme court is struggling with good morning may please the court purchasing twenty grams of cocaine under florida law is not going to talk a little out is better yes purchasing twenty grams of cocaine under florida law is not a serious drug offense regardless of whether an intent to distribute is inferred could you tell me what i could last night i was looking into some florida law and i couldn't find a pattern instruction in florida law that defined what purchases it defines other parts of the statute but maybe i missed it what is the pattern instruction in florida say as to what a purchase is what are the elements i haven't seen a definition for what purchase is in the pattern struction florida case law makes clear that you can well before you get to that because i don't find cold florida case law that clear but so i just my question was it seems to made people are rarely ever charged with purchase but it when they are i was curious i did see and the pattern the definition of and sell means to transfer or deliver something to another an exchange for money or something about our value it would seem to make purchase would be the opposite would be the person receiving the transfer delivery exactly the purchaser would be the end user the person on the receiving end of that of that sale well are you aware of any florida convictions for purchasing where somebody has actually gotten purchased leave at the cases where there's dictum and they're talking about you should have charged purchases somebody actually convicted of purchasing that would not also involve possession of that person well i think the two cases cited in this court's decision in shannon were examples if they weren't convicted of purchasing i'm asking somebody who's actually been convicted of purchasing so we can infer from that what the elements of purchasing are why i believe they were convicted of trafficking by purchase because that was critical to the shannon court's decision in their reasoning because they made a fine distinction between the purchase conviction in those time out iran robert wright but i thought not there of them i thought both of them were charged with possession no i but i believe they were charged with purchase because that was critical to the shannon court's reasoning as to why those were not controlled substance often says and they just don't wish their convictions from the trafficking by possession cases in the james case so so well that robert starts out saying this is an appeal by the defendants from their sentences after dear jury found them guilty of possessing and the court was concerned that really there had been no showing that they were near the drugs and in fact it doesn't look like there was even a purchase either because the court mentions that no agreement to purchase purchase had been finalized so again i'm just searching and you can't create a case if there's not one but it would help me a lot to understand how much daylight there is between possession and purchase if i actually knew what purchase requires well i think the daylight is that you don't have to possess in order to purchase a lot of these purchased cases are people who were acting as brokers in some way but i think that our sweitzer case actually is it's probably a better example of what florida purchases and in that case the court was trying to the floor appellate court was trying to decide if their sentence of rehabilitation was appropriate so i read that and that is the one case i found where somebody was actually convicted of purchase but i didn't read anything in that case that indicated they didn't also possess the drugs there wasn't any problem with well gee you didn't possess it but you purchased it that whole case as you said was just about rehabilitation so again i'm struggling to find that case i do think it's kind of been in the idiosyncratic prong of the of the statute but we know that i think we can assume because the only discussed purpose in this wider case and because that was so critical in that case to that to a discussion that we can look at that and again i'm not clear under florida law that they would find someone guilty of purchase if there wasn't someone telling of that which they had paid for why i think you can make an arrangement and say that i'm going to give you money for it but before you ever misinterpreted florida law where we are bound by shannon to the in the context in which it was issued which was a different context it was a context where judge our cat was was looking at elements you had had the elements and you had to match the and white did say that the a c c is broader than the guidelines but it did not say to what extent it is broader and it's ok that it didn't be because we have plenty of precedent in this court leading up to white that shows us that they are very similar court has always treated the two very closely cases interpret in the guidelines have been treated as highly persuasive in cases looking at the a c c and vice versa this court has never held that one of growing your own or creating your own cocaine in the united states and i don't think we're growing it here somebody's got to buy it somewhere so purchased could it not be viewed as within the ambit of involving because purchase is the st step in actually qualify under the a c c i was just there i mean he was convicted under a statute that we have interpreted as meaning when you have that quantity of drugs you can say all day long you know i'm purchasing for my personal use that quantity we attribute possess the distributor and so back to use when they're talking about personal use as i read it they were talking about this is an explanation we tend to believe him here and we'd like to give him a lower sentence i didn't see that is interfering in any way with the elements of that crime well it wasn't it wasn't a holding because we know that intend to distribute is an element but it does show that there is at least a reasonable probability that in florida you can be convicted of mere purchase purchasing just for personal use under the statute i think you would be hard pressed to find many cases talking about personal use because intended distribute is an element but this was a unique situation because the state wasn't just saying we can't prove intent to distribute the state w affirmatively saying these these two men purchased for personal use they're long time addicts they but your good now you're trying to overturn james wood says says we don't care what they say if that's a different issue than what we're talking about now purchase and that's my other point  s court has never held that trafficking by purchase of twenty eight grams allows you to infer an intent to distribute it ames was about trafficking by possession of two hundred grams of cocaine so it necessarily could not have held anything with regard to mr condit's conviction because mr condit's conviction bubs purchase and involves a lower quantity i understand a lot of the reasoning in james could be applied to mr conscious conviction but there are a few about the defendant's sentences sweater illustrates that it would have been necessarily be true in all cases i'm sorry what what would what the rationale that you used in that case be used in all cases i mean what i'm trying to do is to decide if if it's the state law determination is binding on us under johnson and under a long line of our cases but what i understood judge julie kearns to be raising is to say well exactly what we need to know exactly what that florida case holes before we because that tells us how defendants are actually being prosecuted how courts are actually applying the law rather than just making inferences about the florida legislature but i do want to add because i see my time's expiring that even if you were to assume an intended distribute it still doesn't the following three things one an offense can qualify as a serious drug offense even if it does not have as an element the manufacture distribution or possession of drugs with intent to distribute to intent to distribute c statute based on the quantity of the drugs involved and its placement the top of the three tiered scheme now i'd like to go to some of the arguments that mr swan song made with respect to what is it me what is purchased mean purchased means to trafficking by because dashon so we don't even really know all we know is that they put guilty to drug trafficking but where the court wasn't determining the element of drug trafficking in this case they were merely determining whether they weren't entitled to a reduced sentence under the st time offender act on it and similarly with rosin roberts the cases that were talked about in shannon in roberts the court actually said somebody is purchasing drugs and not just us and them well that's obviously something that entails distribution because if you're not purchasing the drugs for your own personal use it has to be purchasing them for someone else  that if you purchase the drugs by giving the money and the drugs are not actually delivered to you or to the person you wanted them delivered to your standing for law said that that's not possession flora lost it does not possession of for us as a purchase but if you look at what the conduct actually is so you could have purchase without possession you can so you can have purchase without possession with intent to distribute but not under the way this court has to chart interpret the statute which is that there's an inferred intent to distribute from the go on but what i'm saying under florida law florida law if you have a trial in florida and you get to the charge conference and the defense attorney says your honor they're charging am are have charged him with possession with intent to distribute and as you know there's a dispute and the facts the jury's going to sad as to whether or not he actually ever took delivery of the drugs whether they ever actually got to them so i would like a jury instruction from you t to the jurors who are going to decide this case that you can be guilty of purchasing without actually possessing that would not be the defense counsel that would be the prosecution asking for that the defense counsel could say i would like you to charge the jury that he he didn't possess simply because he purchased and the charge is possession they both be entitled of those instructions would they not under law and the jury could come back and convict him of purchase without possession that's correct you're saying that and i'm that may be so but again from i have all not researched and till pretty like i'm i would like from you somebody to tell me what you say is accurate you can purchase without possessing what are the elements of purchasing and i'm just having trouble in florida law figuring out what that is i mean i've had trouble with that as well your honor that you just answer chief judge carnes that you could but you're not clear why that is you don't know what our law says that well i mean they do have different it's an undefined element there's no there's no definition of it and it's not even undefined per purchasing in florida law are that you give money for drugs and you've given the money period  t and an element is not that the drugs are actually delivered are that you actually possess them that's correct john or and and it would have to be and the excuse me and it would have to be that constructive possession is not enough well constructive possession is enough because the florida statute says actual can knowing the actual in construction possession is i think is this court noted well then that's kind of hopeless confusion because if you purchased drugs you have the right not legal right on your sleeve but you have the right under the  illegal purchase contract if we can call it that you have a right to say what happens to those drugs you gave money for that's constructive possession i agree with your honor a person i don't think that's what the or attempted actual constructive actual or constructive possession and other words if i asked if i'm going to give you money at the purchase is not really the merriam webster definition it's not really the purchase is not complete until the item you bought has been delivered correct but i think we're all guessing we had a right as we were just making up things as we talk here to two maybe a women a are educated guessing if you look at the evidence on the burden of the defendant they're trying to say there's a new element that is not is not close enough to possession the ten distributes up to them to show us the daylight between those two and why that's any different a common sense interpretation is direct how something is being treated that's constructive possessions been reduced to your control just like if a a drug trafficker a king penn purchases drugs from  his job in the halls series of things is simply to make the purchase he's told in advance he doesn't even know where it's going to correct all he knows is that he's supposed to go give the money to to raise and he gets paid the drugs in order to put them into the market in deliver them to other people it wouldn't be fair to say that this is florida law isn't clear on this i think that would be fair to say and you know we have a procedure for clearing up your tape law issues when the case depends on them and it certainly seems this one certainly seems to depend on that hopeless confusion in the for the long hard it's more of a doesn't make sense surely they didn't mean that kind of confusion we could certify this issue to the florida supreme court they've always been good about answering our certified questions what about that you could your honor but again i don't really think that the that this case rises and falls on whether purchase is in compas by by actual constructive possession because even if there are ways to purchase without ever taking actual drug to possession that under the plain meaning of the word involving that when you are purchasing drugs and not taking actual constructive possession then you are doing that for the purposes of distributing them or else you do it so there are two ways in which you could purchase one is you could purchase the money could be exchanging money to exchange hands and you're arrested before you have a chance to actually take possession and that seems to me to fall under james which is already said that when you possess or attempt to possess a distribution quantity of drugs that that causes qualify as a serious drug offense the other way in which you can purchase drugs with purchasing them without the end with out to be obsession without ever having the intent to take possession and in that case that's something that clearly involves distribution because you're purchasing it st somebody else it's actually magically not for personal use and again james r d resolves that just because the florida statute allows for conviction for personal use doesn't mean that this court can't infer intent to distribute this court in is an issue of federal law and the court in james specifically knowledge the supreme court's case in gibbs in which the supreme court's supreme court said simple possession and trafficking by possession have the same elements for the purposes of double of a double jeopardy so we know that a person can be convicted under florida law of trafficking by by possession without a jury or without being guilty to having intent to distribute so james really dispose of the ways of trafficking qualify as a serious drug offense i want to point out for future cases where it might make a difference because we just sort of assume that you look at this piece culpable conduct analysis in the context of the serious drug time i ever had one of these cases and the st question i ask is is that you divisible or individual is not the st question correct and so i doubt that question's been answered in this court this is an individual satch you were dealing with right correct and then there are rules  in as as the elements define it not as the conduct that the person commits it's just that when you're looking at the elements of the offense under the an individual stacia serious drug offense you don't have to look at go down the rabbit hole of what are every hypothetical way in which this could be committed to is this a case that involves manufacture distribution and or possession with intent to manufacture and distribution in here this is clearly he's minutes i apologize for some of the confusion relating to florida law and i agree that if this court did want to certify a question as to you know whether you can infer an intent to distribute or whether you can purchase without possession i do that there's something quite distinct about purchase and possession and i think you can argue from a commonsense point of view maybe not just and you want to go back to florida law and kind of create that what you need to make your case well i think one thing i should have brought up earlier is that we know at a minimum that purchased cannot be possession because possession is already in the florida statutes we know just based on basic rules of statutory construction that it has to be something different to be the saying i mean the nd you that hand it to you purchased it and you possessed it but you don't need to be handed that you don't need to be handed the drugs but what i'm saying about the florida statute is that it the fact that they lay out both purchase and possession tells that they are different they are different crimes or else they wouldn't need to both be separately enumerated in the statute i'm assuming that you've really scoured this much more than i have and you're just not finding anything in florida law that gives us the elements of purchase well i you know he never intended to to possess the drugs he was never going to possess the drugs and that was critical to shannon's reasoning if you read it shannon was our decision to purchase not what the florida courts cision purchasing but but shannon looked to florida case law to decide what purchase meant and i think it's really important to read james and shannon in succession because if you do you'll see that james really doesn't control the issue here the shannon court when it looked at james it acknowledged that in some ways it's holding could be seen as being at odds with the holding in james because of how closely this court has always interpreted aca and the guidelines and it said our decision is is still coherent with james because of the difference between purchase and possession not because of the slight difference between aca and the guidelines i'd also like to talk about the the meaning of the word involving which the government brought up because i think there are a lot of different tracks that reasoning in franklin is really helpful on that point of what involving means and why it's so important to take a more measured view of that word if you look at that's the question i mentioned before that we've already determined in james and why that you can infer that a certain quantity of drugs if possessed we can attribute the intent to distribute based on that way that's that's all well settled now if you are purchasing that quantity of drugs which we know is enough to infer an intent to distribute you are purchasing that is the st step is it not i give you the money you hand me the drugs i give you the money i direct you give the drugs to somebody else the purchase makes no sense without the possession of that which we said is sufficient to me one could well argue involving would bring that st step in the possession with intent to distribute chain of events into play and tell me why you think that's wrong well two points to that and i see my time is expired manet so james in why i didn't say that every single time you have a certain a certain quantity or you have an office in the highest year you can automatically assume an int and intent to distribute in those cases they did based on what they had before them but they didn't have any state case law that would suggest anything to the contrary and indeed in white the defendant tried to make an argument that well you know the least couple way of committing this statute could be committed without intent to distribute but the court said well you don't have any alabama state case law to back you up so this situation is different  then also i would just add that i believe the government is saying every single time you have an intent to distribute that counts as distribution and that simply can't be true because the serious drug offense definition is very specific that it is crimes involving manufacturing distribution or possession with intent to distribute or manufacture there would be no need to enumerate possession with intent to distribute if intend to distribute was enough the fact that you have distribution and possession with inten distribute side by side shows you that they were clearly targeting very specific types of offense and one last question and your time's up just to be clear we're on the same page your position is essentially if you prevail that we're overruling james and we're also holding then in the next week we have exactly the same facts and james exactly everything that person would no longer be guilty of would no longer be sentenced under the i c c that person would be in a very different procedure posher because we would no longer be able to look to his shepherd documents to see whether or not he committed his actions he loses as an individual the end of as a bill statute because there's this word purchased thrown and we don't none of us know what it means that it hardly ever seems to be prosecuted but that gratuitous word means that everybody walks even though we could because it's in the visible right after after cintron we know that it's indivisible so that defendant in james now that he would be in a different posture in a different legal posture we would be assuming purchase and he should not be an armchair criminal but he would be a very different