and drug type the mens rea element is overly broad because the knowledge required for conviction is knowing possession of any california controlled substance because the california controlled substance schedules include drugs that are not included on the when i go through the enhanced me there's there are some enhanced moves and you the supreme court said this recently there's some enhanced mints that match up to federal crimes where that where that where the handsome and says you get an enhanced but if your state conduct would have violated a federal statute there are others that describe generic crimes when i look at the definition of drug trafficking offense in this unhandsome and i'm looking at sub for it says means an offense under federal state or local law that prohibits the manufacture import sale etc etc of a controlled substance we all understand that the statute is divisible as to controlled substance yet there's no real dispute in this case that the controlled substance that your client was convicted of selling was methamphetamine well i think not conceding that we should precise ok let's just put it but let's assume that the case yes or no is why is there any need to look at the mens rea this is not one of those enhanced myths that says you must your crime your state crime must have been a conduct for which you would have been convicted boy in federal court the enhancement only says a drug trafficking offense which is defined as a defen involving the sale of of a controlled substance and controlled substance of course is in that interim defined as one of the ones listed in the federal statute so i'm not sure why we're talking about mens rea tell me why we are yes your honor i think humans rhea is important to discuss in this case because we know from looking at federal jury instructions and federal case law that federal drug trafficking offenses have a minister and let's assume that you're right about your argument that there's a different mens rea are required for the state and federal to be convicted of selling methamphetamine in state and federal court ok what difference does that make in light of this enhanced mut which only requires that you be convicted of a state trog drug trafficking offense doesn't require that the conduct be the same as for a federal offense if i understand the court's question i think it's significant because to be convicted of a state drug trafficking offense it must be a categorical match both as to suburbs where where does it say that well i think from looking at to a one point two sub specifically that say in order to do qualify for the advancement your state offense must match up to the elements of the federal offense and there are others that simply say it has to be a generic crime this one doesn't say either this one just simply says if you've been convicted of a state of an offense in state court that prohibits the manufacture import of sale of a controlled substance and to be sure for that one that the this tells us we have to look at federal law to make sure it's a controlled substance but where's this thing that says your conduct would also have to make you convictable in federal court well i think your honor i think it's implied the categorical approach tells us that that is the case so when we look to federal law to interpret federal drug enhanced ments we know that it must categor what we do look we do apply a categorical approach we look at this and we say this statute says a controlled substance the state statute says a controlled substance but has a different list therefore it's not a perfect categorical match therefore we have to go to the modified categorical approach but you're saying what we also have to do is look to manage right and this statute doesn't tell us that you that your conduct has to be such that would subject you to a federal conviction that's my that's my difficulty so h understand the court's concern and i think the best answer i have for that is that we know because we know what the categorical rip approach requires and we know that it must categorically match and in all respects and here certainly has to drug type as to all elements that must be a categorical match ok assuming that's right for second to really any of the ortiz case suggests that we shouldn't speculate that there's so wild circumstance under which somebody who possessed methamphetamine might have thought that it was a substance banned under california law but not banned under federal law is there any realistic possibility that anybody could ever be convicted of convicted of possessing a substance that was not federally controlled but i don't think that's necessary here because the cases cited in the briefing room arrow geringer and guy do show that california routinely prosecutes individuals who possess one substance when they believe possessed another so i think it would be unrealistic to think that california would not prosecute someone who possessed khat but thought they possessed methamphetamine or marijuana or another controlled substance these cases make clear  that california has no regard for what you thought you possessed and because we can look to the california controlled substance and girls and point of the universe of substances that we're dealing with we know exactly what california would punish what do we do with the court argument sort of in your briefs last time and the court said the court went ahead and said no go back in and look at this conviction and apply the modified categorical approach so are you barred by a law of the cases you know your honor the law of the case does not preclude the court from reaching this issue now for a couple of reasons first explicitly what the court held on the prior in the prior memorandum is that eleven three seventy eight is divisible within the meaning of to comp if you're think so your honor i think what's significant procedurally about this case is that the main issues that were argued on appeal last time were trial issues and then certainly there was clear error your honor i see that i have about two minutes left i would like to answer the court's question and  good morning hours may please the court michael hayden on behalf of the united states united states side of the vega ortiz lower court decision in its opening brief by judge moscowitz last month the ninth circuit came out with the  ortiz case which controls here in bago ortiz it set up the exact argument which defendant is making today and it controls for several different reasons the law of the case as well as the substantive merits here they get ortiz the defendant alleged that the methamphetamine at the state level was too broad because in the federal level there was an exemption for the l methamphetamine type substance the court said notwithstanding the theoretical distinction that somebody at the state level could be convicted of methamphetamine in general and that at the federal level there was this exception for element and that i mean the notwithstanding that theoretical possibility that that wasn't good enough that there needed to be a realistic poss in that case the defendant attempted to say well look on its face there's a realistic possibility the court rejected that as well so what we now have here is the defendant's attempt to say that people version of narrow in the two other cases cited and three somehow through the statutory definition with me and see if the government agrees with mr escorts counsel this does this enhanced meant require that the conduct in its entirety subject to  your opponent the definition of drug trafficking offense means an offense that under faith federal state or local law that prohibits and it goes on manufacture sale distribution of a controlled substance we all agree the controlled substance has to be one listed in the federal statute must your conviction otherwise match up to the elements of a federal crime or is it enough that your conviction is for the distribution of a controlled substance i think the  answer is one unfortunately doesn't help the government but i think it does under the modified category like approach i tell me why because the modified category look approach when we find that a statute is divisible that particular divisibility there has to be at least be one prong of the statute no one did it we all understand it's divisible on my question is why are we why doesn't the approach only address the type of drug as opposed to as opposed to and for example what if state law said it's a felony to possess two ounces of heroin and federal law said it's a felony to possess four ounces of heroin and we had this exact statute this exact enhanced with this exact language wouldn't fit squarely within the language of the enhancement  i'm just reading just reading the language just plain language why wouldn't fit within the enhanced i still think it may or i don't see that the editing all two ounces well but then you wouldn't have committed a federal offense you would have only committed to say defense and you're saying no it has to be a federal offense and my question is where does it say that government believe that the vague or t s case controls and that there's been a failing to show a specific case or a specific realistic possibility that the defendant could fall in this position but i do want to make one additional point there is that the child is state statute and the federal statute and putting them up next to each other the language of the lease itself says that the state statute explicitly defines a crime more broadly than the generic definition child pornography statutes at the federal state level and say ok one has for obesity ality for instance photographs the other has b c l you can go down the list and if on its face the state statute incorporates more conduct than the federal statu then it's overbroad that is not the case here since we're dealing with a federal generic crime which even vegas or too big or t's has said you know as we've recognized in cora not the text of the statute is not particularly helpful to our we need to cut through the layers of the federal generic statute to get down even to this means rare issue with the federal generic crime the federal generic crime is as defined in the the sentencing guidelines exact question i was asking which is that if there is a federal generic crime in the sentencing guidelines why do we need to match it up to state is not there's just simply says if you commit this federal generic crime then you're subject to an advancement it doesn't say the state the it if i understand correctly doesn't say there must also be a federal statute that punishes you for agreed but the defendant didn't create didn't commit any federal defines crime which is why we're looking at least eleven three seventy eight and having to match it up with that generic statute the council judge ruled if i may interject a lit tle off topic of what's been argued today but i would really like the government to explain the increase in the supervised release term and now record show us the courts reason for doing that and if not don't we have to vacate and send that back yes your honor the united states recognizes that there was an error in that portion of the  why should he care because he's going to be deported anyway and i'm hoping to clarify that now what i wanted to make clear in the brief was that it was not should not be put under this notion of the victim is because that that's sort of a loaded term that this was not in that procedurally there's an error i do here ok and you agree that we should correct it or yes you are ok and also isn't correct we as an appellate court can't just modify it ourself we would purpose because otherwise what we end up having happen is if there is a limit if there is an open record reaming and then we're ended up with the eleven three seventy eight divisibility issue once again because the argument is this panel didn't address that we know specifically from looking at the california controlled substance schedules precisely which substances are criminalized there is absolutely no question about what california will punish and because we know that to invade or to yes your honor i think the difference in vega ortiz is that the element the exception was absent here we're not dealing with something that's missing we know there's no contest about what drug types are at issue by looking at the statutes here i think what's significant is it's undisputed that california drug statutes have a mens rea element and we know from looking at jury instructions and case law that it is knowing possession of any california controlled substance so we look at the statutes we know what the substances are and we know that under california law you can be punished for knowingly possessing any of those and because california punishes substance that substances that federal law does not that's why it is overbroad i understand that the court has not gotten a precise answer on the question that it raised earlier i would request the opportunity to submit additional briefing on that question but what i can say now is i think the reason that all of the elements have to match here is that the categorical approach requires that if we're going to enhance someone sentence federally for a non federal offense the prior conviction under state law must match in every respect otherwise we have a sixth amendment concerning what we're doing because if you couldn't a federal law and i take point that if we're going to rely on this we want is for briefing but couldn't a federal law say if you were convicted of a state crime that involved assault on a minor consequences will follow and we don't care whether they're god whether the whether or not there's a federal crime that matches up to this that there's no sixth amendment violation there is there's long as one of the elements of the state crimes conviction assault on a minor it really doesn't matter that there's no corresponding federal crime doesn't i think if there were no corresponding federal crime we would have to derive a generic definition from some i don't i just i don't understand your sixth amendment argument that if all that the federal it hasn't requires is conviction for possession of a certain drug and you have been convicted for possession of a certain drug then then you haven't been denied a jury trial on the only issue that th simply says you've been convicted of a quote possession of drug in state court that's all it says and if that's all it says i don't know why it is that we have to also figure out whether or not your crime would be a federal crime that the elements match the generic federal definition ok i understand your i understand your argument and it may be it may not even be relevant in this case or if you think it is well as the first address counsel one question what part of for conduct that was not federally prescribed we much we must make sure that at the state level the findings that were made whether by trial or by guilty plea are something you could be convicted for and state court another way which cla