following a nd superseding indictment charging jackson with conspiracy to distribute and possession to just with intent to distribute five kilograms of cocaine or more and with money laundering jackson was presented  he rejected the st three dollars the st plate cream to the magistrate judge was rejected by her for failure of the stipulated facts to meet all the elements jackson ultimately pled guilty with all her acquired acknowledgements did she do it can  prove it had enough time etc in a report with recommendations was filed without objection at sentencing jackson raised no objections to the trial court and her judgment in more than six months later jackson found a pro se motion for leave to file a late notice of appeal followed shortly by another similar motion this time with leave to file an affidavit in support in the affidavit says that you may be getting there but getting there carry on now i think that's it that's all i think i will jump to that i would agree it is easiest to construe his motions as a an action pursuant to twenty  fifty five dollars there is ample precedent that even an informal pro se letter can be considered and is considered as a twenty dollars to fifty five dollars and i see easiest way to approach the problem the other way is not b c it's a motion f reconsideration with timeliness issues which have probably are excusable did an effective assistance but we don't need to go there it can be treated simply as a hades jackson's have to date the davit stated grounds for his motion which were that he was of the opinion that leadership did not apply and the enhancement pursuit to title twenty one section eight hundred and fifty one did not apply and further that his attorney had promised him to file a timely notice of appeal but it failed to do so this the district court transmitted jackson's motions as a notice of appeal to this court the government did not respond this court issued an order requiring jackson to state why is appeal was not to be considered untimely and despite that previous notice of appeal on ending motion the district court granted jackson the interim this means that sensually we have facts which jump out of the record which are irreconcilable with a constitutionally sufficient i e a knowing and voluntary ple jackson has state state he believes that certain things did not apply enhancements and his attorney failed to raise them the record establishes multiple levels of ineffective assistance of counsel by his counsel number one the procedural default of the notice of the peel and number two the default to raise leadership and the a fifty one enhancement at plea and sentencing when they should l and essentially nothing was done any facts he has to demonstrate that leadership should not have applied should have been raised but were not and this is part of the ineffective assistance of counsel that i was referring to which runs of counsel running throughout this case and we have a defendant who had issues with the plea and sentencing which were never raised which his attorney apparently promised to raise i was not his trial attorney and i would not be on a reman because i'm not even admitted to the district of kentucky and i get one question the motion for leave that was granted was that granted without jurisdiction of the district court of jurisdiction to grant the motion motion for leave after it is already in front of us on appeal yes by virtue of the fact that any filing which can be construed in any way as a motion for  reconsideration reinvests a district court with jurisdiction to decide that one motion nothing else and that can be decided even though the case is on appeal it's kind of a snarl that's that's off and so yes it should have been i mean it there was jurisdiction but again what i would refer to is that there has ben a finding by the district court in effect that his motion that his motion had sufficient basis to be granted and that basis included the objection to the sentencing enhancements and essentially that's where we are and i see that as not though i did research three minutes so you may have the unfortunate experience of hearing me again or you may not have i don't see the clock so i'll have to get you in on this get a variety of methods in which the trafficking in occurred the element trafton can occur those methods well manufacture distribute dispen yeah of course you get to deliver by coming through the statute or how transfer is defined underneath the law is a bit idiosyncratic you know and how is it defined again it is defined as transfer here we don't have one in the c s a and that is a that i've seen it use a graphic we don't have a meaning of dispose of provided in kentucky statute but if we were to take the common meaning and by that i mean just looking at what the mirriam webster sense dispose of in the merriam webster says to dispose of need to get rid of so under under that definition let's say an individual in possession control substance or some substance could just him back off to somebody at a party no consideration to sharing that would meet the definition of transfer and that can take a statute but certainly not a controlled se filing so that the district court as they did here makes a determination of what those filings are and the district court believe that mr jackson was backing for a notice of appeal and that's what he had an opportunity opportunity to do before the court litigated before this court this court in fact that if she didn't show cause order the parties had already briefs the issue and then the district court issued its order expanding the time but because recording the claims process would roll the court here doesn't really need to reach a arts and and the supreme court and that really does provide just a follow up on that if we were to do that should we be just of course decision on the motion for leave that was entered after the case was already on ability to fall apart to feel i don't think i have any sort of presidential a thought if the court doesn't rule on that decision if the district court did have jurisdiction to issue an order for example of a different factual pattern had was i think he described as a motion for reconsideration the district courts have jurisdiction to address nurul motions for reconsideration no your honor and this couldn't be construed as a motion for reconsideration st the district court didn't consider it as much again that would case which is except that case in two thousand and six there is no such thing as a motion to reconsider ascension and that it would but what about what if you construe that as a motion to reconsider or ruling on an issue within the s and context would that make a difference you know for example a motion to reconsider the application of a particular guideline range your right to be reconsidered and i don't believe that i can your honor that the dots case is pretty clear that this court doesn't have to worry about what the district court was doing or anything to that effect simply must affirm the defendant's conviction and sentence and then again that's what the clock for mr jackson to be able to file a motion under twenty  the court doesn't have any authority to consider them under it's case law and so the court can remain and for a hearing to address effective assistance of counsel claim that mr jackson never raised in the in the st place but again that doesn't preclude him from raising them said he didn't object to his leadership role and quote couldn't have in good faith objected to the leadership role that affirmative waiver of the senate think issue as it relates to the leadership role and as it relates he can raise all the claims he wants to and identify the more particularly in the district court if the court has no further questions with regard to mr jackson i'll address mr combs as claim the district court here properly i considered mr combs as a career offender and that's because kentucky drug drug trafficking statute categorically qualifies as a controlled substance event under the guidelines lease culpable conduct under the kentucky drug trafficking statute we do agree with mr kid is the transfer of drugs this court has already said that to define control and says this court ordinarily looks at  the definition under the controlled substances act which specifically includes the transfer of controlled substances and in fact under federal law the transfer of drugs even without consideration of the sharing of drugs if you will is drugs in a trash can would constitute distribution to another part then but even if it did under both kentucky law and federal law there's a mens rea requirement and that the knowing and i'm awful transfer and a kentucky lot an intentional  example between someone holding on to drug or an elderly parent that controlled that the prescription birthday of the government proving that instead of just holding on to the drugs for the elderly parent they were holding onto them with the intent to distribute them to someone else whether or not they were going to get paid but ok that well that answers my question so that's the hypothetical i gave somebody having a control substance and then just giving that to another individual for their use and consumption without receiving expecting to receive the thing exchanged that what that be enough to satisfy the transfer under the  well you i just agree with that i think that federal law does prohibit the transfer of drugs that would necessarily require payment for those drugs again the washington case which is the th circuit decision which the six circuit has adopted likely that sharing is evidence of trafficking the physical giving over of drugs to another person is the transfer whether or not those are sort of on the outer limits of both federal and state law isn't the question the question is whether there's any daylight between the two when they're simply not because the controlled substances act would authorize prosecution under federal law as well and had to that your honor i'm not sure that the defendant realistic probability that folks are being prosecuted for whatever sort of hypothetical crimes that are being posed to some of these hypothetical such as this thing them in the trash can that just simply isn't a realistic probability under kentucky drug trafficking law and that's because again there isn't any citation to any sort of case or example that that actually been prosecuted in that   primary argument which is that i think it's shifted a little bit since those cases but that sort of literal match word for word is that what is required and or the the law the controlled substance and instead we're just asking  whether the elements of the state offense are of the type that would justify being pollution of a controlled substance that then under under the guidelines we're not looking for a literal word for word match and i'd also point out again just briefly that the hey this decision which has been discussed i think earlier an argument doesn't have a lot of application here and that's because the government isn't relying on any of the application in order to say that the and that we've already the best here both gutteral and state law criminalize the transfer of drugs regardless of whether anyone's actually being paid for the drugs in fact that they would kind of make the failing of drug unnecessary term if if the transfer of drugs that means something else and both statute criminalize that type of conduct if a court doesn't have any further questions i the government respectfully request that th the twenty dollars to fifty five dollars which has already been decided by default by the district court which granted jackies motions this cross a filing by operation of law gives him back apply i think this court very well could say that they should apply and of course that does not include transfer and i'm saying that even if we do go to the controlled substance controlled substances act there is still not a kentucky attorney i'm licensed as an attorney in ohio of knowing we were unlawful you know that seems to be a circular mens rea i mean in regard to using unlawful as a men defined as to dispose of another person and again the u s attorney is challenging fact in the supposing something into the garbage it is not a direct transfer to another person or disposal of to another person it does fit the statute it fits the statute by the plain language of the statute your honour's we're looking at this yes of course we're not supposed to come up with record but what we have we have somebody that is involved in a five year conspiracy or possibly three or four months somebody that you know taking the highest level of drug amount the tribute to him at eleven