point thank you may please the court lead ridge thomas pled guilty to being a felon in possession of firearm he had his guidelines increased under the sentencing guidelines for a finding that he had two prior convictions for controlled substances offenses much like the early earlier argued case read read this case concerns whether the missouri state convictions for sale of a controlled substance and delivery of an imitation controlled substance qualify as controlled substance offenses under has any new thoughts to enlighten us on the problem of well i'm i'm aware that i'm sort of coming to this the second this morning you know i don't believe there's a dispute as to the legal analysis you have to look at the state law and if the convictions are broader than the guidelines definition they don't qualify and i don't think there's much dispute i think has been said in the earlier argument if  more doesn't fit the guidelines definition i guess i'm going to try and approach things maybe a little differently i do think there are three missouri cases that need to be looked at and i i heard but i do want to talk just very briefly about all three i think context is important i think the chronological order of the cases them is important and that one came from the missouri some supreme court is very important and i'm going t primarily about the missouri supreme court hendrick's decision but i want to put it in in context the missouri court of appeals in first hendrix case said the question before us is whether you acknowledge the novelty undefined by definitions of the civil practice of commerce and that it's not necessary that the elements of a commercial sale fixed price delivery delivery in payment be present in order to constitute a sale and they also said they were giving this step words that play in an ordinary meaning and they they said that they believe that was consistent with the legislature's intent when they passed the statute to reach to every step or device in the scheme of illegal distribution and they also said that they realize that this could punish mere sarcastic words or offers and that they they believe the legislature realized that when they passed the session so the case went on to the missouri supreme court and the supreme court in hendricks affirmed the conviction which was based on mere words now the government relies on the salmon's case and they hinder scase as were from the late one nine hundred ninety s salman's came down in two thousand and  and two that's that's so the sammis case followed chronologically but not legally that hendricks opinions and i believe that if you look at the cases closely there are ways in which the missouri supreme court opinion in him breaks which the majority of salman's never mention judge mooney did did but the majority of salman's never mentioned i believe that there are ways in which the missouri supreme court opinion in h defendant possessed or had access to any controlled substance for the second to attempted perche purchase and so they held the evidence in sufficient and this sam is case also put forth the the possibility aware that the  consistent with multiple different different crimes sale of a controlled substance attempted sale of a controlled substance stealing by deceit but the missouri supreme court in the hendriks opinion in response to hundreds is argument to to allow a conviction would render the imitation controlled substances statute supreme superfluous the basically the multiple crimes argument they wrote the missouri supreme court appellate argues that if if a person offered to sell cocaine but actually delivered an imitation controlled substance he would be subject to multiple convictions for sale of a controlled substance and sale an imitation controlled substance the missouri supreme court said that contention is without merit the legislature made crimes of both the selling of an imitation controlled substance and the offering to sell sell an imitation controlled substance when a person violates more than one criminal statute it is within the prosecutor's discretion to deter turman which statutes under which the prosecutor trying to proceed the efficacy of the crime of selling an imitation controlled substance is not diminished by allowing a conviction for offering to sell a controlled substance without requiring presenting of the substance that's from the missouri supreme court opinion so i believe salman's contract contradicted that in ways that counsel right before that the supreme court holds of six six judge majority one judge concurs in result the five or six plenty it says the term offers not defined nor has the meaning of that term in two twelve as read together with zero ten point thirty seven been decided by this court so gasless says it's not decided and i understand that but i think i think they should opinion and i think they did more than just say the briefs don't a lot don't allow us to to i just i think there are things in that opinion that white takes us is left to surmise which means of course that you got to talk for a while they're not saying anything well they they they did they did say that but they they also said white requires only that went to some in they say once again the statements are ignored them and i think if you look at judge mooney's dissent in salman's without explicitly doing so i think he is echoing what the missouri supreme court said in hendricks that the late legislature made a crime of offering to sell a controlled substance and notice he just cites the dissenting opinion in the supreme court well how does he does not cite the majority opinion and i said without explicitly doing so i think he was he was actually that criticizes the dissenting opinion yeah yeah and when he referred to the drugs or capacity or intent whatever you want to call it you know and that there is the watermen case which says ambiguity as to whether a defense part conviction hawk eye should be resolved in you may please the court we have already had a very thorough discussion of the government's position on this issue so i do not want to belabor the point although i would like to address a very few brief points and ask the court knows it's the united states supreme court that tells us how to evaluate the state statute the first thing they say is look to how the state courts interpret their own statutes we could not have a more clear opinion and state again salman's under no circumstances are we supposed to look at some theoretical possibility as the defendant urges but what the state has interpreted statute to be there's been a lot of discussion about the jury instructions i have taken the opportunity between these two arguments to look at the jury instructions and i do understand that the jury instructions do not deliver that you knew those drugs if you're doing a delivery knew the drugs were a controlled substance knowingly intend no i don't know if you are but i didn't bring a copy with me i've looked quickly on my found knowingly you have to have a knowing component to conduct the act of deliver or distribute or whichever word that it is that you're using in the language so if you substitute in offers i would read well knowingly offered that is not what would be  in there your honor it would always be delivery would be the word in the instruction and then delivery would be defined well that had a subsequent point right so we would be you happy we know defined as offer to sell correct to include that so no jury would be reading through  be accompanied by the intent to carry out the sale well that's what the defendant has argued right i guess regardless of how you interpret at the point i wanted to make was this contrary to what mr wolf from says salman's does offer defense protections because the fact of the matter is whether those instructions have been amended or not is not relevant for purposes of this analysis because if a defendant at the end of the government's case in the government has failed to present evidence of intention or ability to follow through in connection with the offer then the defense attorney moves for a judgment as a matter of law and that would be successful under sam and so same as does offer protection so the fact the matter is salman's is controlling here and it does require more than an offer they requires an ability or an intention to follow through and that s what's important here so in preparing for the argument this would be a no excitement anybody but myself when i want to listen to old arguments of my own on a particular issue i realize this is the forty  time i've argued in front of this court just cult i think i've been in front of you most of those and the fact of the matter is i've learned a lot of things but at the top of list is not to waste the court's time simply to hear myself speak so i am more than happy to answer any for other questions if you have them but if not i would respectfully see the remainder of my time and ask the court to affirm the judgment of the district court in this case very well thank you thank you for your argument believe mr wolfe or music your time we've heard