have on behalf of stephen can time your honor is my plan for today to ban i know the court has optical isomers before me and after me mine is this the case that raises other issues so apart from mentioning just a few points on the standard different  and i'd like to ask you about those other issues and i didn't so i just ask you with respect to your st step act question yes the could you go back to the district court in secrecy sentencing under the act without regard because law right and so my argument is that the court has that authority under twenty one o six which says that even even in the context where it affirms this both the nd circuit in the th circuit is that even where the court affirms it can remain and if the circumstances are just and we believe the circumstances here we then we don't have to take a position about whether the act actually applies to that's that's correct your honor and that's that would be left to the court to reconvene and if we were to do that does do the rest of your arguments regarding geometric isomers would you then have the ability to object to i believe so your honor because if the court has to recalculate the guideline of course it has to recalculate the guideline correctly and so i would say that at that point that issue could be raised i will push back a little on the plane air this court  so this is the same argument in the same sense that the walton case applied in a case where the end user of the because you said that only one of the predicates should have lied that's true but that's the same facts of walt and so watson was a situation where the defendant below argued that you didn't have three was the argument below and walton that there were not three separate the two of them because they were not committed on different occasions were were that that was the argument made below its exact same posture here below we said that there were two separate cases there was only is defined in the statute and therefore you should apply the statutory definition of controls to federal statutory definition of controlled substance mike i'm just you may you may want to argue from them that it's a natural but i'm asking a very specific question it is it's meant to be the fed the guidelines were meant to incorporate the federal definition of controlled substance but they also guidelines also have a very specific intent require it with the intent to distribute and so the question is why would the guidelines have incorporated the intent requirement of a separate federal statute which has different requirements i guess a couple answers about one the text or inter breeding here is an offense that prohibits manufacture import export distribution from with there is no empathizing with that there is no offense that for him it's those thing in either federal or state law apart from in florida that does not have a mentor with respect to the substance that would be my st answer the nd that doesn't that still doesn't help me my question is why you may be right but the question is why would we look to any state offense when the guidelines themselves defined the intent it's required i see unlike the controlled substance where the guidelines don't define the what are controlled substances and the court said in liao so let's look at what federal law provides here we have a a self contained definition of intent in the guidelines so one thing i think it would be passing strange to say that when when the commission used the phrase possession with intent to distribute it didn't mean the handle that that offense has in every state and federal law and said it meant some sort of separate actus reus and mens rea and that to be defined by their common sense meaning the nd indication the nd reason we know that that's not what the commission intended is that this was originally a list of offens and sixty seven when the commission changed that to simply have these phrases instead of having the list of statute it said that that was merely a clarifying amendment that it didn't was not intended to change when when congress used i'm sorry when the commission use terms like an offense that prohibits manufacture it should bring along with it the sense that that an offense is used in every federal and state court again apart from florida which is that it has a men's room with respect to the substance like has they are very specific applicability provisions in the four hundred range of the st step back and section four a one fairly clearly says that it applies i believe it's unless a sentence has been imposed and there is no way to that and partly it's this section and the amendments made shall apply to any offense that was committed before the date of an act and if the sentence for the offense has not been imposed so it's if a sentence has not been impose and certainly congress is exercising its authority to make it partially retroactive but it drew a fairly clear line in saying it's a sentence has been imposed and there's really no rational reading of that that would say that a sentence in this case hasn't been imposed there has been a sentence imposed if this court we mans on some other ground then of course defendant can raise this argument before the district court and this will be back before the district court is your friend right at the time for filing a motion just record for yes yes there i mean there is eighteen u s c rd of heavy to see that in narrow circumstances also allows memon of a sentence that does not apply here to section four a one of the st act it applies to other provisions of the st step back that nevertheless it's difficult to find the legal route for the district court to do anything either the court has held that there was a legal sentence imposed and then it's before the judge to court again to do something so we've submitted to twenty j on why i don't think twenty one of six valid the applies here three thousand seven hundred and forty two sets forth the circumstances under which the court reviews sentences and can affirm or remain and i think that squarely applies here and in the absence of some other error i don't believe there's a legal route to remain just for the court to think about an issue and i think there's no reason to do so because section four a one of the st act doesn't apply here to get to defendants other arguments all start with plain error in both french riyad will are and look or rather it is this court of played pla applied plain error review to un preserve lorenzo argument those squarely apply here members in the dispose that's correct and defendant uses and walton in an attempt to get around those precedents and neither of those applies new argument about an appeal of course that doesn't apply here a defendant never challenged the hurler his eleven thousand three hundred and seventy eight conviction below moreover guy on the issue had actually been brought to the district court's attention there was a discussion on the record about the taylor categorical problem defense counsel then didn't pursue it but nevertheless there was a record that had been brought to the district court's attention that also isn't true here similarly in walton there it was also brought that if your course attention i argued walton and  the government there had fully briefed the categorical approach import of the convictions after the defendant objected and so again there's that difference and then walton also reason that it was a pure issue of law which we don't think that's a valid exception to rule fifty two  nevertheless it doesn't apply here so there's no reason not to follow venture riyad galore and look here rodriguez and with respect to the renzo claim of course that implicates factual things that that haven't been resolved and unresolved also legal question and then with your honor the the structure of this guideline as you reference is a series of acts as rape it is it goes to offenses that prohibit and then a series of nouns when you factor distribution and so forth those have never been matched to federal generic crimes like looking to something in a tube or what do you do with your friends argument that they were matched and when they changed to this broader language the commission said he didn't mean to change the law i think we deal with the  about trafficking and analyzed that to mean that the state crime needed to have a trafficking element and that that did not come along with some kind of mens rea similarly here the plain language of the statute requires  that there was no mens rea are required there and one of the reasons why is that similarly after a hearing or on the basis that counsel in the st case argued we found the statute to be overbroad rejected your your position we have a couple cases where people didn't raise the issue you know that's you know people make choices and don't make arguments but it does seem and i do realize it into medeski we've already said to people who didn't raise it you get the enhancement so i'm just asking it in terms of of what any of these defendants would establish in a hearing anyway and that's particularly notable in the player cases because in plain are they have to establish some prejudice and so just as we've done there's an opportunity to try to say here's what i would do if  went back here's a declaration that i would put in here's a scientist that says these isomers do exist and nobody has done that how would they do it or appeal i think they would seek to think if we wouldn't we wouldn't consider that a declaration from somebody on appeal the court would not consider it for the facts the court could consider it for the fact of its existence to say i would be able to make the showing so of course the court wouldn't weigh in and say i find this to be true or false but the court could take notice of the fact of its existence as a declaration and say there is some dispute that could be raised in the district court this isn't meeting mr manager says he can raise such a dispute in the game bowa case he may be wrong he may be right but i take him at his word today if specific questions about whether or not they plan on putting forth scientific evidence that geometric isomers exist mr manager respectfully dodged that question every other defense counsel that is argue this issue has dodged that question and he may dodge it when he gets back to the case and contrary to your expectations produces a scientists will cal tech who says there is a geometric isomer and the district court says yes there is and therefore i have heard in my view that the statute is overbroad do we still say to qui terms to your client it does not apply by its terms meaning it does not apart from the six circuits decision in clarke which i did preserve here which said that a sentence imposed is not imposed until it's final if the court contaminant but that's why i think it's important that these other cases have said we can affirm and yet see an injustice and do something about it we don't have to just sit idly by and watch that injustice occur we can remain and it that also does i think affect or or solve part of the plein air problem because if it goes to it it's clear that mr can thomas the fifty one would go away his guideline would come down by about seven years there's you know justice if if if it's what congress intended i