florida statute under which mr duran was convicted is an offense that categorically involves a controlled substance that's listed under the federal controlled substances act and our argument is number one that the statute itself the state statute itself is in divisible and if the statute is in divisible then the only way for the government to be able to establish that it does in fact involve a substance controlled under the controlled substances act is to take a look at the schedule of controlled substances in florida compare them to the federal lists and unless there is a categor is determined to be divisible the issue here is that the statute is in divisible i understand that under feder under florida law sorry that the the prosecutor has to specify  exactly what it is that the defendant had and also must establish through citation to the relevant provision of the florida schedule of controlled substance is that it's on that schedule but the issue is the jury instructions it is a matter you get to only if you determine that the statute itself which is if someone has the defendant is an actual or constructive possession of a controlled substance that's all the statute says actual or constructive possession are means a controlled substance is means the florida statute defines what are controlled substances in your view that the statute is so clear that a court would not be permitted to go beyond that and take from state court decisions and state court instructions to determine whether this that you do is divisible are unknown i believe that the statute is clear correct there's a similar statute in new york the second circuit court of appeals in a case called harbin which i don't think we cited in our case it's called it's harben versus sessions says exactly the same thing the arguments that are being made in that case are exactly the ones that are being made here you do not get to that second part of it the jury instructions you know the issues of the state court decisions discussing the fact that the prosecutor must establish that the  the substance in question is something listed under the state list of controlled substances you do not get there because as judge marcus says it is that clear this is an offense that  that involves one crime and one crime only being an actual or constructive possession of a controlled substance being in possession of heroin is not a different offense than being in possession of cocaine but does that mean that in a prosecution in florida where there arguably two substances and play half the jurors could conclude that the person was in constructive actual or constructive possession of heroin half the jurors c conclude that he was in actual or constructive possession of cocaine and the conviction stands yes if there's two substances in the bag and both of which are under this under the at least the state statute as being controlled it does it does not matter i mean the issue is that the person has possessed a substance controlled by the state law and whether that substance is a b c or d it doesn't matter now there are the cases that talk means right disagree those two offenses you may disagree but that's what the florida supreme court's told us well i disagree with them too well in regard they are telling us what their statute means understood and the statute that just say i can look to the florida supreme court for guidance about what this statute means well the issue is whether the stock the question is whether it's the visible or not right and the question is can i look to florida case law when the florida courts have told me pretty plainly and pretty often that the actual nature of the substance in a defendant's possession is the key a material element in proving the crime of possession charged under this section i'm reading right from the supreme court of florida variety of the ca's in florida telling me telling me just that how do i ignore that well i don't believe the florida supreme court is saying that the that the conviction for substance a for possession of substance a is a different crime then possession of substance b case jenkins v wainwright supreme court of florida one nine hundred seventy five justice overton writing for the the court the petitioner argued in that case that the offenses for which she was convicted one was the possession of cannabis a t v and the other was possession of an illusion the genic drug as charged under a step or two counts of the information are merely different facets of the same transaction or whether they are different crimes and could be charged separately supreme court of florida tells us that is they read their law these are two separate crimes because the substances are different well is the substance twenty grams or less of marijuana i don't know what we're talking about the comparison between the marijuana conviction and the possession of a different controlled substance here it was on the loose in a general drug as charged under a separate count and the petitioner argued before the supreme court of florida no no no these were in separate crimes that were one crime and the state could not charge them separately that is to say count one unlawful possession of cannabis tiva count two unlawful possession of olution agenda drug on a particular date those were not separate crimes the petitioner argued they were the same crime in essence using our nomenclature it was in the this a book although they had no reason to use that kind of language but the florida and the florida supreme court said no wrong the petitioner loses separate crimes because the substance itself is different under this section of law what am i missing here well there is a separate defense in the state of florida for the possession of twenty grams or less of a well there are other cases that where the drug isn't even marijuana or cannabis or hash with the drugs are cocaine and heroin cocaine and methamphetamine it's something like that so hold aside twenty grams or is that's really not at issue in this yes right and if the if the florida state supreme court is saying that those are two separate offenses they can be charged separately as to not only can they say that they have said it and i want you to tell me how i handle that well is if you are right i have to discard what the florida courts have said about what this statute means i think you have to take a look to we need to take a look at here is whether or not under federal immigration law that creates a crime relating to a substance controlled under the statute the state has a has a different reason for moving forward in regards to criminal penalties for somebody charged under its effect and under its statutes what we're dealing with here is whether somebody is subject to deportation it's more that really for divisibility purposes i mean i think we've said it a thousand times we've got to look through the state law to determine how the state law defines its own crimes right and what judge marcus is telling you is that we're looking this is a controlled substances statute and if cocaine and methamphetamine different substances if that is an element if possession of cocaine itself is an element of the crime so says the florida supreme court and the dca is that how are hands not tied by that that's well then that means that florida defines a separate crime for every single substance that it controls under its statue well i don't think they go quite that far because there's a case out there with a looked at varying forms of the federal controlled substances act they said that's different i mean supreme court says in math a statute is divisible if it has alternative elements and therefore defines multiple crimes by way of contrast a statute would be individual if it enumerates various factual means of committing a single element to the extent they've tried to give us some clarification that's what the supreme court has said the state of florida through its courts have told us that the nature of the controlled substance is an element and you've got to prove the specific  nature under this statute and you can be charged for having possession of two substances that are different at the same time so even if i had in my pocket vial of crack in rock form and i had in my pocket some angel dust or nothing and thought it means same time i get busted i could be charged in florida for two separate crimes yours that's what the florida courts have said that seems to me to make the statute devices a book what am i missing well the issue is if that statute is divisible as the as the as your honor is suggesting from the florida supreme court decision then there is a separate crime for each one of the contrite substances listed and that's the conclusion the court would have to draw in order to call the statute itself using the supreme court's decision as you mention making it how do i avoid that is all i'm asking you well i think my time's about to run out it's all right just give me an answer to my question so i think that we have to distinguish between the issue is a criminal defendant liable for  or an offense under state law as the supreme court was taking a look at in the case that you've cited to and there is a separate question of under the civil nature of immigration proceedings is somebody subject deportation and so the federal the state supreme court was not dealing with the issue of the categorical approach of the modified categor in so while i do understand that the florida supreme court decision elucidates how the florida supreme court sees the florida statutes and while we can look there for guidance my argument to the court would remain that the statute itself is divisible because if not then we have a multitude of different offenses different crimes that are all called possession of but their possession of each individual substance that's controlled under under test to apply when looking at a state statute to detect whether or not the statute is divisible or whether it contains alternative elements under all three articulated tests in the math the supreme the answer here is without question that this statute is divisible at the controlled substances at issue are elements far from offering list of examples the statute it issued provides a list of specific statutory term alternatives by cross referencing the five schedules in the florida controlled absences act those schedules are  it ninety three point thirteen fourteen statute it says that we're defining possession of twenty grams or more or less of cannabis or three grams of a controlled substance described in and there's a whole bunch of statutory references it ninety three point zero three one and then one one four one four two one five one three one five nine one six six one seven three are those all those other references to a whole variety of different kinds of drugs i didn't check  states where you may know from your is this sort of how it typically goes in states i mean because i think what i hear your adversary worrying about is there you know every state presumably has a big fat controlled substances statute  of a controlled substance is proscribed and those statutes all refer to five schedules in all the cases that i've just lists and in every case this court sr circuits have clearly held that the the schedules list disjunctive elements of the crime and that the specific type of the controlled substance is an element of the crime and again i want to bring the court back to the ma case which gives us a perfect three part analysis to go to the very first part of it they answer the question of whether the controlled substance is an element or a mean is easy if you can point to a state court decisions it's already said so as as your honor marcus has pointed out the supreme court of florida has absolutely unequivocally held that the particulars some says is an element the crime of possession or trafficking and that aciphex element must be proven are found beyond a reasonable doubt by the jury the finder of fact must prove that beyond a reasonable that that is the clear answer in florida is  simply bolstered by numerous other cases which i do cite in my brief i would point out in particular like he mean is versus florida in that case the prosecutor charged the defendant with possession of one particular controlled substance but what was proven is nope it wasn't that drug it was another drug he was not guilty because drugs they're not fungible these are not interchangeable it's an element of the crime  each controlled substance gives rise to a separate offense each offense contains an element that the other crime does not under the test again in the supreme court decision in mathis the first answer is it's the florida courts have spoken to this the second thing that the step that the baths case allows us to do is to look at well the statute itself does that answer the analysis and one of the things that tells us we can look at is jury instruction now i know but petitioners made a big deal about jury instructions and said oh you're not allowed to look at that i believe he's misreading the mathis case which clearly says in the divisibility analysis not in the question once we once we get past visibility that answer is whether we can apply a modified categorical approach maybe there jurgens to jury instructions are not part of the record of conviction however mathis makes clear that jury instructions in deciding divisibility something the court may peak at and even and they specifically mention jury instructions so does the disk camps the supreme court's decision and discuss i would for the court to footnote seven in the math decision in fact of the supreme court it notes that the supreme court in disk camps reminds mathis that a peek at the jury supreme court case law it and doing so that is looking at the florida jury instructions here it is clear that the element must be completed and filled in and it's also clear a jury could not convict if it turns out half the jurors think it's math and half the jurors in florida the answer is you are correct they could not in fact that's exactly what the court said in him universes florida i would also refer the court to whitfield versus state the controlled substance not only has to be named in florida it has to it has to match the exact local compound make up something very close to the defendant was not guilty that again supports a finding that that the the element of the crime is indeed the specific drug i would invite this court to join the well reasoned decisions of its sister circuits in the ninth circuit martina's lopez the search third circuit saying and the a circuit in martinez  the jury didn't have to find specific element in new york the court actually says that that that wasn't my case and that maybe that maybe there isn't a case in new york that says you have to  at the beginning of the discussion the florida statute actually has a number of different this particular statute eight ninety three thirteen has a number of different crimes and that the eleventh circuit has taken a look at it progeny that come from there and then there's also something that my colleague mentioned regarding illicit trafficking what florida defines illicit trafficking it eight ninety three point one three five and actually in that statute there are some subdivisions of it that talk about cocaine methamphetamine heroin marijuana with specificity talking about this crime goes to this substance and here is the penalty with regards to the statute that we're talking about here eight ninety three thirteen six a as far as i can tell there are no different there's no different treatment under the sentencing portion of the federal of the florida statute sorry for any substance that is listed in the florida controlled substance schedule's other than simple possession of twenty grams or less of marijuana it's the only place in the possession statute which is a subcategory or some paragraph six b where they where the statute yeah i think that's right and the sentencing doesn't really help her position but the problem you have is remains that the statute itself requires that you who beyond a reasonable doubt the specific chemical substance a specific element must be is it marijuana or is it cocaine is it heroin is  a loosening genic drugs and each is different from the other such that they can be charged separately they can be convicted separately and they can be sentenced separately and consecutively under florida law that's the problem that i think you have with you and i refer to harben in order for you to find the defendant guilty of this crime in new york the people are required to prove from all the evidence in the case that on a date in the county of whatever the defendant name sold and they must specify the drug itself the same as florida has in its standard jury instructions and that the defendant did so knowingly and unlawfully and so you know harben comes to the conclusion that although the state prosecutor has to specify what the substance is and then you have the odd situation i would go even further judge marcus in regards to the  crack in the heroin put him in the same vile i mean it the thing is is that you have it's still the offense of possession of a substance controlled under florida law and the substance is controlled under florida law my time the possibility that you can have a conviction under the federal under the florida statute in question that is not an offense that relates to a controlled substance under twenty one u s c eight zero two and i thank you for your time thank you very much thank you both  proceed with the next in the last of the cases we have scheduled this morning which is barisan tardo versus the attorney general