disagree with the government there's a lot of background this is a long complicated case but but the actual point where we disagree is quite narrow and quite easily defined and it's whether or not the statute under which petitioner was convicted approach or a modified categorical approach is used in proceeding forward and as i understand the government's position their argument tracked very closely a third circuit decision united states the abbot which relies on to is this better i picked up my theory there you go if i better say yes so you will have to go back and start that sentence again about starting with where the differences are thank you your honor i will do that and i apologize for the technology on our end we disagree on whether or not the statute under which the petitioner was convicted of a statute seven eighty one thirteen  eight thirty this action with intent to distribute a controlled substance in the divine civil statute and that divisibility determination determines whether or not the court uses a strict categorical approach or a modified categorical approach and that's really the relying on two particular arguments it cites to a pennsylvania state law case which in a footnote says that the identity of a substance under conviction for this is an element of the offense this is a case that involved the double jeopardy issue and makes that reference they also rely on language and in the court cases that anything which affects a sentence is to what a state court has criminalized how they define their own criminal statute the key point is the state how is the legislature chosen to write the statute how has the court in  that state interpreted it and be swayed lee there's just a wealth of case law that describes how the courts in pennsylvania view the the particular statute in question and their definitive that there's one substance a controlled substance offense in pennsylvania one in only one and that various things that affect the sentence are not elements of that substantive crime  of different ways in which the sentence is impacted pennsylvania has a relatively complicated statutory scheme in terms of different you know related statutes which affect sentencing but they're not part of the underlying offense so there is one controlled substance offense the courts have been definitive on this they have you know in cases where they're actually thinking directly as opposed to sway valley where it's sort of a passing use of the term they're dispute that would not be the case yes you know if a statute said if pennsylvania chose to write a statute that said possession of marijuana and such and such a quantity falls under this provision then absolutely that would be an element of the offense we have a two thousand and seventeen in this crime thirty two point five simply descriptive and does not go to   overall prosecution had to say different substances and you it wasn't a double jeopardy defense doesn't that pretty well tell you these are elements rather than just me well it tells you there that they needed to prove a controlled substance one of the controlled substances on the list was involved and that in that particular case they had two different substances they they brought two separate sets of charges but for either one of them they they needed to prove simply that there was a controlled substance involved with that we have the court noting in an earlier case a glottal that you know they lay out the elements of what it takes to sustain their burden and they say possessed a controlled substance they don't say bridges you know those that say a particular one or a particular identity well we're all  elaine we would say categorically if you found to be brandishing a gun then that means a jury had to a found out and we could categorically say that was part of what was found but create those decisions pr i'd also say that you know another major point is once you move to the categorical approach you don't get to still just dive into the facts and decide you know decide how an offense was committed that's not part of what is permitted you have a very limited range of what you can do with a modified categorical approach and six circuits clear on this where we're not deciding how a crime was committed we're deciding which crime was committed and it's very clear the crime that was committed was you know  n with intent to distribute a controlled substance you could substitute in different drugs under that different controlled substances but in the end of the day the convictions going to read controlled substances we don't have some states do with some you know laws do differences based on what that conviction would be for we'd never say you're convicted of violating pennsylvania's mandatory minimum sentence act even though brandy and elaine would tell us today that cases and it was really clear in the supreme court of pennsylvania on repeated notices that they had a narrow view of what was the substantive set of elements of a crime and the sentencing factors and set and grading of offenses were completely separate from that and i think the case well is clear to the expense wave leaves you know in that mix it's completely an outlier it seems to be the only case that makes that that claim and that would run counter to you know the full weight  there's a number of them i think clearly you know just simply macmillan the premier print the pre elaine description of a pennsylvania law that a case case rose out of pennsylvania talking about sentencing factors be separate that was ratified by the supreme court is pennsylvania's interpretation but sentencing was separate and not a substantive elop element and then the various other cases are pennsylvania in a variety of contexts bringing that up  coleman is faded in a number of cases and you know it says the legislature could have they knew how to put this in as part of this but they didn't they chose not to do it so you know if they approach that's what we're looking at you know what does that conviction at that place and that time tell us about what was categorically decided i believe i'm out of town time i'm happy to general in this matter this court should follow the third circuit's decision in united states versus henderson and hold that the pennsylvania statute under which mr raja was convicted section seventy dash one thirteen and thirty is a divisible statute with regard to drug type and as such it was entirely permissible for the agency to use the modified categorical approach to determine which controlled substance he was convicted of in this case we have to determine whether the pennsylvania statute sets out a list of controlled substances as alternative elements of the crime or whether the drugs types are merely various needs of committing the offense and making the means versus elements inquiry united methodist versus united states instructs  in making the means versus elements inquiry the supreme court's decision in that historians versus united states instructs us to first look at authoritative sources a state law which might include a court decision that definitively answers the commonwealth versus lately is one thousand nine hundred eighty nine cases meaning it predated mr rogers one thousand nine hundred six conviction there is a pennsylvania superior court held that the prohibition on double jeopardy wasn't violated even though the defendant had received two consecutive sentences under the statute one for delivery of a schedule one substance called to know and another sentence for a threat of force substance called tallman and even though the defendant had delivered these drugs in the same plastic bottle during the same single  the defendant said this was double jeopardy because he had been punished twice for the same offense and the court in slavery held the double jeopardy wasn't implicated because there were two offenses as quote each offense includes an element distinctive of the other i e the particular controlled substance and quote the court went on to explain convicting waverley as to the charge involving two and all required the jury to conclude that there had been a transfer of that drug to another person of two hundred to another person and convicting completely and exclusively in quote defined in seven eighty one thirteen a thirty what that language about it being completely and exclusively defined that cut against your argument and if not not why no your honor and i have to admit i've only read that case very quickly recently and my understanding was that they were trying to explain in commonwealth versus aponte that that the idea of  subsequent cut or a prior conviction was not an element of the offense so when he was when they were dealing with this subsequent conviction that was a cold contained conviction and the fact of a prior conviction was not being dragged into it as an element of the offense and that's actually well established case law that we have running throughout supreme court case law to that the fact of the prior conviction is not an element it's an exception to the offender you rule that of the thing i would point out at page i believe two fifty two of commonwealth versus aponte they discussed the nick millen case and mcmillan as opposing counsel pointed out it's a case dealing with mandatory minimum so it's not as relevant the aponte decision the court discusses mcmillen which mr which the opposing counsel mentioned is a case dealing with mandatory minimum and they discussed mcmillan and he talked about the fact that at page eighty seven to eight eight of the decision the court in mcmillan explicitly left open the possibility that their ruling might have been different if they were dealing with the fact that increased the maximum penalty so that sort of leaves open the door to apprentice the rule to apprentice from a they might have and which they would eventually and i think you know several years later but in a pending a they eventually found that a fact that increases the maximum penalty is an element of the offense but so appear but mcmillan doesn't conclusively answer the question of whether a fact that influence that affects them that's to a maximum such as drug type here is an element or not it still leaves a question open and so i think what i'm trying to say is that there really isn't any case law that's been cited so far in the briefing that conclusively indicate that has to pennsylvania was not treating facts like drug type that increase the statutory maximum as an element of the crime  it would be correct do you mind rephrasing that question i'm sorry your honor well what i'm asking you you know he says that that we should be looking at the statute i'm asking you based on the state of the law that your reference i want you to go back and and just focus and tell me something clee why isn't he collect why isn't this and in the visible statute based on the fact that we have to look at well because it so because mathis tells us that if a statute is divisible is that list element in the alternative as opposed to mean and here drug type is an element of the offense and sorry pennsylvania pennsylvania drug statute but you know that's why we're so focused on slavery because slavery is telling us this is an element of the crime drug trade there's an element of the crime it isn't ellen and then it's that this is an alternative belief based statute and it's therefore divisible under mathes which focuses on elements versus meat now i know that's somewhat confusing when you look at the statutory text because if you look at section seven eighty dash one thirteen eight thirty it doesn't necessarily look like it's mentioning the drug types at all but that fact that is that those pennsylvania controlled substances are the schedules are being referenced and incorporated by reference into that statute it's not unusual at oracle approach to look at other statutes that help define the statute or conviction it matters for instance the court was dealing with a burglary conviction but the fact is that they actually analyzed in terms of their visibility was the statute that defined the term occupied structure under iowa code section seven zero zero two point two which was a completely separate provision from the statute conviction so what we're doing here were dragging in the pennsylvania drug schedules into the conducts this very same analysis where it was a low looking at whether the controlled substance statute attempt at ohio controlled substance statute was a controlled substance offense is first looked at whether the schedules were overbroad and when it determined it was then looked at this to determine whether the identity of the controlled substance was an element because this identity of the drug was an element then you have it invisible statute and not the modified pat a categorical approach can follow they applied math this is three different methodologies they said gravely it conclusive you know there is a conclusive that the case telling us that this is an element of the offense then they looked at the visit they looked at the face of the statute and there they said looking at the controlled substance schedule they're written in the alternative they're an exhaustive list and that tells us that there are alternative elements rather than mere illustrated example to me and then finally they did not this also tells us there's an option in there in determining elements where it means that henderson court looked at the record of conviction it took a peek at the record of conviction to see whether or not the statutory alternative was listed there so you know it looked and saw that i believe it was cocaine or heroin i'm sorry i can't remember the drug but the name of the drug was specifically listed in the in the charging document and that's the same here in this case marijuana is specifically listed in the in the charging document which is the criminal complaint at page four thirty eight of the administrative record mathes explained when we had that specific term in the complaint as opposed to an umbrella term like a term that drags and all those various means such as premises in the burglary concepts when we get that specific that's a big clue that that element as opposed to a means that the offense you know i just want to point out again about gravely that discussion about the element about drug type being an element is very much a part of the text of the decision i don't see it as a footnote i also you know waverly remains a good law it continues to be cited at least up until two thousand and thirteen there's a case called commonwealth versus mit where the court applied waverley and said that the merger doctrine did not apply where the defendant had been charged with three separate counts of possession but the possession account counts all involve three different controlled substances and so the court explained each would would support a separate criminal count the sentences would not merge i don't really know that in in the ninth circuit decision united states versus martinez the lopez decision where they relied on that case law very similar to waverley in holding that the california statute at issue also made the identity of the controlled substance an element of the offense and therefore rendered the statute divisible i you know i understand my opposing counsel and mr baez are making this argument about slavery being undone by the by the fact that pennsylvania law has distinguished elements from sentencing factors but i do want to point out that this argument is is new in the sense that it really is a raised primarily in the reply brief and so at the risk the government's position would be that this argument has been waived  you look at page seventeen of the opening brief there is a brief discussion about the scenting print sentencing provisions but it's certainly not an argument about a pregnancy and elaine not being retroactive and the idea that this that something printed visions under pennsylvania law are never elements that's not something we were able to address in our answering brief because it was raised for the first time in the reply and so if if the court intends to reach this issue we would request you know maybe the opportunity for supplemental briefing but ultimately our position is there are just so many indications here that drug type is an element of the pennsylvania pennsylvania statute even if the court doesn't have to so that the court doesn't have to reach this issue  didn't turn on sentencing at all it merely identified drug type as an element that the jury had to find it didn't it didn't bring in these concerns that petitioner is raising about the sentencing the treatment of sentencing provisions under pennsylvania law and i would point out also the jury instructions at the time of conviction as well as current during struction require the jury to specifically fill in a blank for the name of the controlled  substance in those instructions so that they must identify the principal sites controlled substance at issue ok i think you're out of time let me just check to see if either judge film or judge who have questions and if not i think your does the fact of that conviction actually tell us what can we read if we see a rap sheet and it says you have a conviction for this what do we categorically know so you know even in mathis we had our different types of buildings and vehicles and all types of things you know when that was presented to the jury in the case was put on i'm sure they said he burglarized whatever he burglarized the question is not what was on that jury foreman what were the allegations at that point saying what with the fact of that conviction what are we looking back categorically are we able to tell from that and despite the fact that we may charge you know it in a case they have to say that a controlled substance was used  so they're going to fill in the blank and they're going to say there was a you know conviction do you know defendant or the you know responded in a criminal case is this accused of a particular drug in that case but the fact of the conviction just says that a controlled substance that was on that schedule was involved otherwise our whole overbright argument which is which the government i believe has conceded that the schedule in one thousand nine hundred six was overbroad really doesn't mean a whole lot if we get to go through and say we don't really care about the schedule we're going to look at the facts of how that person did that just to touch on me house a little bit the unpublished sixer kit decision the court there makes quite clear as it's looking at the ohio version of a statute like this that there are subsections that criminalize as separate and distinct crimes the possession of and lists various substances talks about the fact that different factors could make it an aggravated possession of drugs pennsylvania doesn't do that they have one single conviction they have one single thing actually it and then they sentence it differently but if you look back at the record of the gentleman in twinkly he's going to have two convictions for you know violating section one thirteen a thirty he's not going to have different convictions that show differently for that he's not convicted under one thirteen at for any of the other various you know in many sentencing provisions he's convicted under that singular statute that pennsylvania has and i think that you know is what distinguishes this case from some of those others we're not talking about a different view and that means that when we think about the purpose for which we would use a modified categorical approach because we're told we can only use it for a limited purpose which statutory phrase is implicated what we're not implicating any statutory phrase we're not saying this is an aggravated case where this is a case with priors and this is a case with firearms we're saying simply it is or isn't a conviction under one thirteen you know a thirty and that's not the only crime but that's not a quite where do you think that the third circuit went wrong and henderson or abbott i think they went wrong in not looking to what the supreme court of pennsylvania said about what's an element of a crime i think they  certain she's right on that and i'm wrong but you know we can check that but you know we look to the courts that the you know math this is kind of a strange case but it was influenced by the fact that the iowa supreme court had said it doesn't matter which of these things you know the jury finds they had agreed on that and so they look to iowa law and i think here when looking to pennsylvania law the court you know so one case they discuss one case  the very least if you're going to you know reliance waverley i think you have taken textual eyes and distinguish all of the other cases upon to and and all these cases that the come out you know very strongly in their wording the other way saying we distinguish substance from from sentencing factors and i think the third circuit you know didn't go that deep on it i think when you go deep you find out that that it's not an element or at least it wasn't an element in one thousand nine hundred six and i think that's important for the court to keep in mind that you know things may be different post aponte things may be different post you know elaine as we look at those but clearly in terms of what was happening back then the court in the legislature of pennsylvania the statutes under which respondent here was convicted are or what they were ok mr bronson thank you for your the michigan legal clinic which is the thank you of undertaking a representation in this case for the parties we thank you for your argument the matter is that method and we will render our decision in due course the her may  disconnect the lawyer and then instruct us on the procedure for the conference so until thank you very much i think you just confirm when the attorneys have disconnected please judge donald yes i'm here ok the attorneys are disconnected i'm just going to disconnect from the courtroom and the judges can confer privately thank you