your honor this case is an important case for more than just ms costs we submit that this case is really going to have a lot of scope not only within the fifth circuit but broader than that for example marijuana as we know has become legal in under state law in multiple states particularly colorado if we have people in texas that vacation in colorado especially skiing those up in the panhandle that go up for a day trip come back or come back the next day they pick up a batch of brownies make a batch of brownies when they come back to texas as this case is prosecuted by the government those people with brownies would be held responsible for one to one sixty seven ratio under the guideline would help me would be if you told me exactly what what you objected to it sentencing and what if already exists for that alleged reversible error first of all the trial counsel objected to the application of the it has to be one to one because this wasn't t h c this was marijuana you're not arguing that because the lab report the p s r says and marijuana would always have t h c so that's not the argument you agree there was a detectable amount of saying that a sentencing judge has to somehow get a lab that can segregate out the pure t h c and only use the one point six seven for that either right if you disclaim that so the only two arguments that i see available one would be very attractive and i didn't see the government objecting to it much which would be just sort of implore the district judge hey judge the law all right now hasn't caught up with edibles good reason to vary downward good reason to depart we agree that there's a mixture here and we agree that the butter was quote used with the t h c so give us some leniency he gives you a low end but he doesn't go further the only other argument is well the whole darn table you're asking the fifth circuit to say the entire marijuana table that's been in place for over a decade is so incoherent and ambiguous that no judge can pick one column versus another ever in this particular hayes that second argument i would submit  you limit to this case every single bit of marijuana's got t h c in it that's true but if you look at the guidelines specifically themselves that application the notes to the drug point of the table give a definition of what she and his she sh well it's more of a descriptive definition which that was created as in the bone case which up pointed out you know they said this came after that but if you look at that definition those are the only two definitions descriptive y given under the gotta make sense because marijuana has she sure slang terms but t h c is the scientific term so you can't fault congress for using the scientific term no sir was the one that i actually would fault would be more the sentencing commission under the guidelines because the way i submit that this is looked at is your what's your so your argument is that this table i mean i got imagine there'd be tens of thousands of people  talk about something that would get everybody's attention that way and why don't we just follow the plain language the sentencing judge if it's if the other stuff ism is a carrier bees wax you don't count it easy for labs to separate but if the t h c and had to be extracted somehow from the marijuana cannabis plant is infused into other stuff and then the person uses it all they get whacked now that looks really severe with edibles congress has got to catch up to edibles but at the moment every single defendant out there is on notice that if they refine down to t h c and then infuse into something the plain language says you have now used it i would submit that that's one of the one of the mistakes if i might got assumptive way that people have made in this case pure t h c if you were to go get into that scientifically can only be drawn down through a laboratory process but the lab report in this record says t h c and you didn't object to it no sir it says it contains t h c but this language is any detectable amount so once you acknowledge it says contains tea it see the pla one to one sixty so we wouldn't say that we would say do what they did in bowen get your expert have it experts say well we we challenge the p s r factually it is clear error to say this is t challenge it where's this guy here said i didn't even look at the lab reports i accept this lab couldn't even segregated out yes or so therefore under the guidelines rule limits the and and statutory construction you have to defer to the benefit of the least coal to defend well then your rule is that the government's going to always find a lab they can that's your propose that would be that what the burden should be on them to make their case that's an interesting argument but that was explicitly relinquish there was an intentional waiver of that are you the defense counsel said your honor i didn't even read the lab report i admit this lab can't do it i accept quote that you will whatever he said you know i'm not arguing that you have to segregate him out yes or i agree with that we're not talking about the a male to choose what we are talking about is if you're going to if you're going to take the whole five point this case is asking you to try to parcel out the actual marijuana everybody is content with the full weight of the butter being consider yes or five point five one to one why a full what if there were what if it were i mean all these edibles have varying potency what if it were super potent then it would be the government all want to want less the government takes on the burden of proof which they have a d n a lab that i know but the lab here says it contains detectable teach it doesn't use the word marijuana marijuana butter is just a slang for it your honor because as as counsel explained the lab specifically the d p s lab in waco specifically unless it's a plant and then the p s r ended up coming back and taking a wide deviation from where everybody else was and that's why since there isn't really any a political arc guiding  that's that's where the trial counsel try finding everything and submitting as much as she could to give guidance to the court and that's where in briefing i've done the best that i could in my research in relying on boeing which is kind of on point as far as as far as ambiguity and defaulting back and the rule of limited in talking about we don't have definitions and also referred on that him case from the not circuit talking about where you have a conflict of definitions but twenty the statutory definition of marijuana the unique thing that's here is definitions for other controlled substances under the can under the sentencing guidelines are provided in the sentencing guidelines whether it's how we're supposed to do it there's something here here in this particular case regarding marijuana as a category you have a congress congressional definition that's been around since one nine hundred thirty seven of what marijuana is so therefore congress has us more on what you and i are on the same page there the commission's got to catch up to date but i'm worried that the world of edibles that has gotten ahead of them right now fits into an older language structure we have to follow until it's changed which is if it's a mixture and it's used which the butter is then your subject with the full weight i would submit that if that were the position of the court and that's the opinion that comes down on that would preclude every other definition within the guidelines because if it's if it contains teach seed and it is part of the mixture then everything is subject to one to one sixty seven you have no fifty to one no five you want to know what you have the other level so if the expert hasheesh the government stuck with hasheesh if the expert says marijuana and then you do have to have a p s r you have to have a battle but here he conceded it and in might you know the edible we we make this seem like oh the innocuous it's butter but mixtures are themselves even if potency can be diluted mixture is themselves the one i think of is g h be an orange juice have a different set of risks that congress would want to punish whole way once you start mixing things that are in knock you know small marijuana into others and they become odorless and colorless or whatever and they could interact with other judges and the i mean other drugs and the victims don't even know what they're eating might have a drug it maybe congress wants to really nail those traffic traffickers well it's a sentencing commission that has created this this stairstep of progressive sanction yes and so therefore it's the sentencing the mirrors what the statutory definition is for the purpose of using a one sixty seven to one clearly at least impliedly from the spirit of the law that's pure t h c to go from one to one to one so your rule just so you know if your time running out your rule going forward is any time we've got an edible that's marijuana based the default is one to one yes or unless the government establishes otherwise and here the lab report clearly only establishes it contains teach that which qualifies it as a marijuana under the definition all resin extract whatever it qualifies as marijuana but the government has not stepped up and met its burden beyond that thank you ok with twenty seconds can you quote the specificity of the objection that said the error here was that the government hadn't met a burden as to what it was  the trial counsel stipulated to the white not fighting splitting it out but came back and argue specifically that one to one should apply him specifically stated in reference to his sheesh being in the record this when this marijuana butter was sent to lana the lab results say it contained t h c the district court really didn't care at all and deciding that this was a you know a mixture containing t h c because he has the lamp there and then presumably he has used that definition and has found that there's real powerful point here which is in this is i don't think of hypotheticals well but my law clerks brains do you go to denver you could legally get a bunch of oreos that have whatever thirty grams fifty grams of little weight with marijuana in them the infusion then you go to texas and you get busted that turns into thirty three kilograms that's your logic is every single cookie that you buy legally yes you're saying that's the government's the judge exercises discretion and decide to pound it under wine but the judge declined to deny notice to stray reference in the sensing hearing where the defense counsel said and the government and i have been talking about this from the start yes where you'd governing council and no one has looked to me like the government wasn't necessarily opposing maybe a variance or even a departure isn't now that the government  so you're saying when we do get these aberrations the kid with an oreo cookie everyone's got to get a departure or at least a thirty five fifty three variance that's the way until the commission deals with something other than carrier versus mixed use these buying mary things that don't contemplate edibles i am saying that and i think the book did i mean i think the guidelines didn't contemplate marijuana becoming legal and it being put in brownies at the airport in denver and people bringing brownies and cookies back i will point out that and you know although it may be legal and  colorado there still is a federal law and it's illegal in texas and that's illegal you know there's a conflict of laws because there are still a federal statute on the books but the states have been permitted to write their own laws so it is so there will it there is a very much to the nominally of what's happening here and i agree that the guideline has not caught up and  you know there is a law review article about what happens when you take marijuana and say you make a very light alice b toeplitz brownies then you suddenly multiply your  you could take marijuana put it in brownies and suddenly the weight of your marijuana has gone up and you have resigned ask is when i join the court judge king told me steve at least in every case do the least damage possible sheesh how would we how would a rule coming out of our decision resolving this case not allow the government to say oh well your honor in fact that joints got t h c in it so we want sixty seven for this deployment but i don't think a letter would come back with that would s pick i think the government would be down by the lab report and what ok tell me is the lab report in the record i know the p s r is yes the lab and there's no reference to either butter or marijuana in the lab report the only references t h c yes are so let's say they objected and said i think this is a hashish butter thing does that shift the burden to the government to support by a preponderance of the p s r conclusion i they object if they said this is not c and this is something else then i think it would be prudent for the government i don't know that it shifts the burden but it certainly what's the point of an expert crack cocaine has cocaine in it and you know you guys i think a payload he is a controlled substance and so is the cactus you know so i think what they were trying to get at is this extra ction process and i'm not sure i in this is not in the record but but i believe that to get t h c out of and to make this marijuana butter us marijuana to pure lifo potent t h c before you put it in the brownie in the butter and because then congress could want to punish that processing step much more severely right and i actually you know googled how to make marijuana butter you know and but that's not in the record either because i was just curious about how if you know what it really was and and to be candid with the court you know when we we charged it as hashi's and and so there is some ambiguity about what some of these substances are and and we characterized it in the defined and then the court didn't want to apply a later definition and so the district court judge had a hearing on what it was and he applied a broad definition usual and what the court really sad is that he should have applied a narrow definition because there was no definition so that ambiguity a rose out of the fact that there was no definition at the time here we had the definition we have that definition that that says it has these chemical properties and i think the district where it was entitle to rely on that definition what if they'd objected and said we want a lab that can come up with the percentages we think there's almost no potency it's even less than one to one but better is deluded it completely so the last thing we should be getting would be a one sixty seven what would happen if they object would you have to find a lab because now these labs in washington in colorado they are all they do exactly that that gummy bears got to have this amount in it you know so the labs can do it yeah and and maybe that's something that the government ought to adopt as a policy is there anything pending before the u s sentencing commission to address edible i don't believe so i don't really know but i don't believe there is true and really there's an interest of the government to prohibit that because then it but i mean talk about hard to detect and as you pointed out it becomes dangerous because if you have people selling enough you could just put a dot of t h c on our radio or cigarette and it becomes as strong as a whole marijuana cigarette just here's my question on that i was curious about this do you know in date rape drugs do is the full drink counted as before wait at sentencing or do they somehow say we're going to figure out what the g h b amount that was dropped into the drink with you know you know your honor i know there are certain it and so we came out with haynes and we came out with a companion case those two were playing in their context this is a plane there context those two would control no plane there right ok but but you're telling us to clean up shop so if this had been objected to properly what's the you i'd love to know with how we've confused the world so what's your simple summary of where we're either where we've got warring case law i don't know that i have one ok i simple summary was to just could find my argument like me i know but i didn't one of the enter out there i think you mean opposing counsel has been very candid this he's not pressing this he doesn't see it as plain error you've alerted us to haines and our companion cos case it's not plain air or i don't want to speak for my colleagues but that seems to be true but i think you are constantly sending in letters saying be aware there's a problem here so i'd love to know what our problem allusion you're talking about conspiracy cases where the charged amount doesn't end up being the amount that relevant conduct loops in the government's position i thought had always been you're responsible for the current full conspiracy but you're telling me are you telling us that we've got law that's beginning to say that would be error yes i think there's a conflict you know when you look at randall versus it seems to me there is but of course that dealt with the statutory minimum so you know it is so honestly it was one of those very interesting issues and i talked to my boss and we went out and talked to  the the criminal chief and then we talked to the u s attorney and and their basic answer was let's lay it all out for the court and left before it gets it and so i really didn't form an opinion or other certainly doing there i really didn't see anything with other circuits i think there is an undercurrent you're correct in some of our case law i don't know if it's presidential on published it's beginning to say even if they plead to a full conspiracy i'm out they could not be held responsible and some i don't may be opposing counsel's got some insight into this i think there is a problem we are we're sort of ducking it at the moment and i think if you can look back even with merker and in those kind of cases this courts always really come back to the principle that you're responsible for what you did in that conspiracy but i don't i certainly can't state that as the department controversy and it cuts certainly if the government spots a problem those letters help even if just to inform one panel after another and begin to sensitize all of us that we may have a law that isn't giving clarity to practitioners ye so come back first principles you know we can arguably do more harm where we are a record that really support some notion it's a problem but nobody's brought some case to us on in bank track or lenity because the guidelines are inherently ambiguous hence that's preserved for you just saying there was a request for a lenity meaning depart variant parcher what about that what because you're opposing counsel cites a fair bit of law as to c is defined so so the ambiguity there's no ambiguity about whether this material contains t h c what that what i think they are saying is there's this huge overlap where you know t h c is in all marijuana it's in hashish it's in all of these listed substances and and because it's in everything we should get the benefit and since you pointed out the crack in crack cocaine have that quote same overlap do you know of any case in that context where the rule of whether he has meant that the defendant gets the lesser i'm not  kids it seemed it took progression all action right her to change of the guidelines to really make that situation fairer and in a way we have a similar situation where you have cleans it up in the world of edibles right that was sort of painful wait for the congressional unless unless a case comes up and we have objections right and that in really at that point  you know it as judge jury was pulling out maybe we need it you know or to resolve the issue there needs to be an objection there needs to be a chemist testifying there needs to be an expert from the d because i sort of floundered around with my own understanding because there was no record that you know was just stewart said but if it were contested right away and saying  and you put on a war of the experts is as you said judge then it you'd be you could see a little bit more about it and it would be a more educated analysis on both of it is that down when the sentencing is occurring if all that occurs backus arguably a better setting from which you know it's fair it's out because the judge has got a record is alerted to the difference picked up we will the decisions we render no net basis could end up creating more difficulty than the ones where we've got the a coffee tea same thing boiled down in the caffeine that's the active ingredient understand or the flavor or anything but taking marijuana in boiling it down into some sort of liquid and strengthen it  contains no plant material the even as in this case from then on is purity see that's a completely different thing than going to a laboratory in the extensive drawing it down which is way above my chemistry in the guards to deriving out pure t h c so sitting on somebody's stove and blowing them straining something is completely different and the p s r reflects from this cost us defying which there nothing controvert in that that that's what she basically did you know judge higginson asked me a question while ago and i did a little bit if i could rick whitley on the record just a couple of points judge smith or the trial judge as  the trial counsel ms walker i'm not sure i understand everything you were saying were you suggesting that this lab reports say the substance was not that contained t h c is not accurate the ingredients in all marijuana products i don't think i don't think that's enough my position is that our lab didn't do enough to properly classify this is t h c and that sums up a lot and there's a couple  other points in the record where she kind of talked about this asking if it was brought up in the trial court so specifically the d p s laboratory in waco texas which i'm presuming is the same as the rest but what was pointed out to the s that they do one test they test just specifically is it positive for t h c that's it that's all they do they run the same test on plant material in non client if it's a plant something that they say that is plant then they label it as marijuana if it's not something that's a plant they label it containing th state as compared to cocaine and crack the lab report comes back and says cocaine or cocaine base and that's out of the d p s laboratory and i know that's not here that's just custom from me being from what i can tell you so what we're saying is this lab report is insufficient to step up male had and into specifically another couple of points in the in the in the argument from below the sentencing guidelines and i'm quoting trial it's a short transcript we can read it yes or at well they specifically talk about there is a brown sticky substance that was involved in this case that under any case you read about his she she everyone would agree was a she it was also calculated it one sixty seven to one because her lab does not break things down the way distancing guidelines do their place five different types of marijuana under the sentencing guidelines are treated differently and she she is traded at five to one because it's more concentrated on them so i submit to the court the trial counsel from the way we're presenting this to the court trial counsel without a lot of legal precedent has done at least best job that we could in presenting this the way we have it to the court specifically in regards to the other issue with the with the minimum you know the issues that the government raised i would just defer to the government deferred are responsible or brief there's not a whole lot more be all that that i collaborate i know that one of the judges  had khana mentioned that maybe i knew more and i just deferred it sounds like your wrist you know one from the standpoint of any cd alan the defense community whether people are pushing the commission to address this you have anyway and judge this is the first case that we have seen anything in the federal court waco in the waco court treated as teaching like this this completely blew all of us away from counsel that regularly comes down here to everybody this was just something called us not a left is this is the first first impression that we've run across this particular factual situation and vicious and i was going to say the definition comes down to a definitional problem in the guidelines it's not that the c f r the c f r does nothing but near the statute it comes down to the commission not giving the same as in bowen not giving a definition