him and find that the statute under which he was convicted it's not a crime relating to a controlled substance that would subject him to removal virginia law criminalizes the possession of at least fifty to controlled substances that are not criminalized under federal controlled substances act the government has conceded that the statute is overbroad as to those controlled substances and that the statutes are not a categorical match und is not removable for purposes of a conviction relating to a controlled substance to avoid this result the government argues that the statute statute did issue buyers that the commonwealth identify the specific identity of the drug in the charging documents in the conviction documents and in the sentencing documents in order for there to be a conviction under that section eighteen point two dollars to fifty dollars whoever is divisible as to substance is divisible as to subsection because different punishments are based on the different schedules in the statute at issue however let me ask that question so that seems that there are two possible ways that subsection a could be defensible and just understand this in your view but start from the assumption it is divisible to some degree one of those options is it's divisible by ask edge one and schedule two and then option two would be that is divisible by the particular substance so are our position is that it is divisible by subsection and the reason why as i understand but i'm only talking about subsection so your position is that subsection a is also not divisible with respect to schedule one in schedule two so you couldn't have subsection is indivisible that's correct your honor and the reason why is because the specific identity of the drug under the mat this test is merely a means and not an element by which to commit crime which the defend going through the math is factors the st place this court should look is to regain your law on issue we've cited to this year a case which references and the government has also cited and it references the specific type of substance that according to the level of offense or in this case the punishment which each of the subsections punishes differently and as a result the type of controlled substance and is the type based on schedule one or schedule two speaking of the type  sorry to interrupt you but the type of controlled substance you believe the petitioner was convicted for at the lame duck session is right in th y l e in the well so for purposes of the categorical approach the inquiry is as to whether or not the element what are the elements of the offense in the record and for for our purposes our argument is that the conviction order shows that mr paul was convicted of iraqis so you're under to that play in a play when you're applying the categorical approach the inquiry is what are the legal elements for choir and for our purposes here if you look at the record of conviction documents which the conviction order is one of them the amended indictment is another the sentencing order is a rd and finally the findings of facts by the trial judge at the bench trial is a th among the four of those there are four different substances mentioned if the specific identity of substance was an element of the offense which the supreme court mathis is made clear elements are factual circumstances that the jury must find unanimously beyond a reasonable doubt then it cannot be reconciled that they are  the significance of the the amended indictment is that the court did it by request of the commonwealth attorney in open court without returning the enjoyment to a grand jury which is required under virginia law where the nature character of the  changes if the specific identity of the substance was in fact an element that would necessarily change the nature character of the offense and because it was a year or so your argument if i understand correctly is that all these changing at the lane so you know it's twenty three different things in different places necessarily means that the actual identity of the drug is not an element categorical approach only is to identify whether or not that that substance is an element or means but so to go back to again where where you started and i want to talk about why we ought to ignore the model instructions too but you were talking about the sierra case where it says the type of drug is an element right and in help me out because so i think of the type of drug as being cocaine marijuana you know heroin whatever that's the type of drug the classification of that drug that's schedule twelve thousand three hundred and forty five is a separate from the type why do we think when the virginia courts and we're just sort of deferring to the junior ports here right on whether it is there isn't an element of course is the type of drug is an element i'm having trouble figuring out how we get around how you get around that description of what is an element of the  our reading of that part of sierra of different classifications of the level of ants based on the type of controlled substance if and it actually possesses as we reference in our brief type means a category or group and here the categories or groups are schedule one schedule two and the other controlled substances and cheap to your point about and your so in a sense your position depends on that type in this context refers to statute itself which cannot which punish is by schedule not by substance unlike other virginia statutes which punish by specific substance or identity of substance and then the last point is the record of conviction what is what about the virginia case howard versus the commonwealth where they allow a single capsule that has heroin and that mill in it and they say because these are different types there are different elements you can be convicted of two separate offenses one for the heroin and one for the fentanyl how does that so so howard's issue and how it was was a mens rea issue as to whether or not a defend who claim to not have knowledge of two separate consumer controlled substances could be convicted for the for two separate controlled substance possessions the court and howard delineated the specifics by units so a controlled substance under schedule one was a unit that could render a conviction a controlled substance under schedule two it was also a unit nd brender conviction just that suggests that subsection a is the least divisible with respect schedule one and schedule two i don't think so your honor i think that because these because howard also relies on on howard because howard also relies on sierra for the reference about the specific type of controlled substance and it also says the importance about howard also notes that it's the legislative intent is to criminalized possession of cold substances and so forth by allowing for the prosecution of two crimes for two specific identity of the substance and some of them do not others allow for the insertion of just quote a controlled substance and because the jury instruct say that again so you're saying when and where it says a controlled substance but that's an insertion point right that suggests that you're putting in what the controlled substance is in the list of possible identifications within prentices there is a controlled substance a controlled substance or a to identify the specific controlled substance and given given that the jury instructions and then there are some that were there is that just so virginia model jury instruction and they're the blank is knowledge that the something to its manufacture distributor possessed is quote bracket marijuana name of controlled substance a controlled substance and bracket is an element of the there are other jury instructions that are that are similar in this regard and because they because it's not required that the identity specific identity of the substance is included as part of the jury instructions we think that cuts in our favor to suggest that the identity of the substance is not an element of the offense but merely a means we've also identified in the record several cases  in the commonwealth where a defendant was either charged pled sentenced or and a verdict form where it was for general quote possession of a controlled substance and we've identified those on page because the because the commonwealth does not require and the instances that we've provided do not specify the specific substance what this means for purposes here for mr wagner given the government's concession that the statute is over broad is that if mr bott had simply been charged for a general possession of controlled substance without the specific identity of the of the drug because the the control because the statute is overbroad there would be no basis for which mr could be subject to removal because of the least criminalized acts presumption i would like to just briefly address the modified category if this court which not agree that the statute is indivisible under the modified categorical approach we would say our position is that the government has not met by clear and convincing evidence its burden to show based on the ambiguity of the records that mr bob was convicted of fence relating to a controlled substance thank you all right ye and from the record in this case starting with authoritative sources of state law syringe power cases which this court has been discussing this morning both indicate that in the words of sierra the specific type of substance found in defen courts were st the issue and so argument there in essence is that your counsel wanted to talk about the type could refer to a classification schedule classification and just to understand the distinction given is where it says specific type of substance that is plainly not referring to a classification but instead to the specific type of substance not to be repetitive but and that that specific type of substance in your view refers to marijuana cocaine heroin whatever the the listing includes yes your honor the government's position is that the better reading about phrase specific type as used in syria is that it refers to the positive on this issue that other lines in the opinion use the word type in contexts that refer to specific controlled substances and just to point out one line later on the opinion in describing the federal possession with intent to distribute statute right part of the discussion is about whether the knowledge element applies to the specific type of drug that's not the argument made there was to the you know name of the drug not its classification right so s so the jury instructions that opposing counsel cited ninety seven dollars of the administrative record you'll get those instructions they say knowledge of character and i believe that if you read through those instructions drug in parentheses appears multiple times in those model jury instructions this is again a are two hundred and fifty eight dollars and specifically directs the judge to instruct the jury that quote if you find that the commonwealth has failed to prove beyond a reasonable doubt that the defendant possessed and parentheses name of drug then you shall find the defendant not guilty so those instructions specifically instruct the judge to i to specify for the jury that they are to focus on the the quote name of the drug that an indictment that changes the specific elements of the charge unquote is permissible provided that the general nature character of the offense does not change so hicks addresses whether an indictment can change elements under within you that the virginia or federal for all substances schedules so mr ball could not have been convicted of possessing ethylene of the conviction or order also misspells marijuana as mirror you know so there are other spelling errors in the ne had an element versus just a means if it really mattered it only matters so much to the conviction that he could not have been convicted if whatever the i don't think that it will be convicted of possessing a substance that is not a controlled substance at all whether it's an element or a means there must still be some showing so your argument is that whether it's an element or a means  sheppard documents that you can consider the statement made by the judge to the effect of m d m a or whatever you have is that statement included in a document that the government would concede is a shepherd document or is that not a document that we could consider in other words if it had said exactly what you wanted it to say could you have relied upon that to establish the modified in response to a request by defense counsel to have some time to investigate a conviction that mr barr had in d c for purposes of determining whether he was eligible for what's called to fifty one disposition which is like probation for st time offender and the judge says well let's do it this way i find you guilty of this will give you more time so i think a little unclear exactly like what the formality of that statement was by the judge because it was made in the context of you know going to give us more time to investigate this request for a continuance not a just before you get started can i ask one question to make sure that we're in agreement counsel answered the question about whether f alone is a scheduled substance under federal law you agree that it is regardless of the route it takes to get there you're not contesting that f alone is included in this twenty one c f r section that we described that's correct it's our understanding  specific identity matters and the difference in the differing interpretations of what the specific substance was over the course of these proceedings which would have no effect and so late but that so in other words if he was in possession if the court found that he was imposition of tide detergent a non controlled substance it couldn't convict him of a controlled substance of whether it's a means or an element or not nor is it a federally controlled substance so it's what do we do with that so the significance there is that it it shouldn't matter and the reason why it shouldn't matter is because the it is it is not necessary in order for the court to find offense in virginia with the specific identity of the drug it's schedule one or schedule two we've seen that with the trial judge in this case where he outlined i find you guilty of m d m a or whatever it is you had it didn't matter to the trial judge and the specific identity varied from the amended indictment to the trial judge's findings of facts which are are properly records of conviction documents  but they're all talking about i mean it at every stage they're all talking about the type of drug nobody in any of this point has said schedule one or schedule two we haven't seen any description of being the schedule as being the question the question is always what it is and i get the judge was a little confused at one point about what's m d m a and there's a discussion about the spelling of ethylene versus athlone but they're always talking about the specific type of drug while there is always reference to schedule one or schedule two in regards to those in the amended indictment in the in the and in the sentencing order and the conviction order as well  the government's reliance on parts of the trial transcript that do not constitute the findings of facts and conclusions of law are are not proper shepherd documents before this court but i would note to their argument about  repeated it several instances in this case in the amended indictment throughout the in the court's conviction order so for it to be a mere scrivener's there furthers our argument that the identity of the substance is a means and ends as justice kagan notes in the math this decision means are mere facts and defend it's often have no opportunity or incentive to dispute your facts because those do not require a unanimous finding reasonable doubt in every reason to dispute here because if it's ethylene he's not guilty but that you're a judge richard so i think that goes to our point that even the court the prosecutor the court and defense attorney didn't care what this specific identity of the a consistencies in the criminal records for means because the defendant has no opportunity to dispute those or incentive to do so as well and as she said inconsistency is quote should not come back to haunt defendant down the road and unfortunately it's our position that the government is attempting to do that here by seeking to remove mr ford an offense that is overbroad and not a criminal not a controlled substance offense under under the federal statute and for those reasons we would ask this court grant his petition for review vacate the removal order and find that the statute issue is not divisible and not a grounds for which he is removable and remain in these