rather my request for relief in this case is very modest what we're asking is that the court remain and does case with instructions that the does record conduct a modified categor yes i understand your theory is that there are two possible ways to interpret that statute could you just kind of bring us to take us through the each of the two options that that you suggest are there yes yes as the court has said our that rather would be qualifiers as well as date possession with intent to commit those five different violations that it gain is very specific and very inclusive and it does not include purchase it does not include purchase in addition to that it is in addition to what we have for instance possession with intent to sell  that applies in this case that being twelve point zero one clearly treats both as being separate as being very different and requiring very different elements to be proven four day perception problem within what an individual must have or what they were the government a state must prove rather is that the person exercise control over or the right to the district court's analysis change any because the guidelines are now discretionary and not mandatory to put my question a different way is it easier now for the district court to look at a rap sheet of a defendant without having to get too hung up over questions of whether or not there would be a sixteen level increase versus a two or a four level increase because it's now all subject to this general standard and shows to impose whatever the sentence is between zero and the statutory maximum for the punishment but that would be an unreasonable sentence ending on i think it would it would be and analytically it would be an unreasonable sentence as again i think that the proper point of departure is something guidelines themselves obviously that is just simply one of the factors of the court must look at but nonetheless it is certainly an important  just get it's a little bit off but i realise this is in kind of a grey area of uncharted water post for her but what's your best case to you to support the proposition that you just yes or no i think that it would be booker it's well booker itself basically because those instructions as we go through them have areas that are clearly discretionary depending on the charge and they appear to be required to be given in every case where he charges made under eleven three fifty one or related statutes and why that's important is that although in the in the provisions you can alternate between somebody charge of possession or purchase there are two definitions of actually constructive possession contained in that jury instruction offense which are only bracketed if you charge possession versus purchase so i believe that when i read that is that a court is required in california even if the charges you purchased a drug that instruction must include the definition of possession actual or constructive consistent with federal law and it means that a jury cannot find a defendant guilty of purchase of a controlled substance on the statute unless they found at least constructive  sion that about what about the question of trafficking if the jury had been instructed that purchased for the purpose of resale would be a separate offense then you'd have it cover that trafficking question but just whether the possession is constructive or actual possession holding holding it in your hand doesn't constitute trafficking and how does how does how do we get trafficking out of the jury verdict in this could have a mini trial and find out about why he purchased it and whether he was going to resell it but they haven't had that many trial yet they haven't found out classic why he purchased it well i don't disagree that if the sell the same so again we have the required trafficking intent was that in the instruction in this case to the jury none of those records passed on that none of those records were before the court because the decision was made on the on a categorical approach not in the proper decision because he appears under california law and the instructions that would be given under a charge in this case whether it's called possession or purchase requires that the jury find actual or can talk to possession and that if possession or purchase was for the intent to resell those would fit the definitions of drug trafficking under federal law and therefore that decision can be upheld so you're saying there's no difference between purchase and possess but the essence it appears that california has decided not to time thank you are you are i would take strong issue with their government's interpretation of dreams structure and twelve all one and i invite the court to read it i think the plain meaning of the instruction us  structure belies the government's reading the government basically states that actual constructive possession is stated here and required for either of the two prongs however if the court  the instruction depart the government is reading it's merely that definitional portion of that instruction especially the instruction basically first of all states then take the crime then it goes on to the fine what actual possession is what constructive possession is and what sale is then after it it finishes with the definitional portion it goes on to state what  elements off of how you prove either possession or how you prove purchase and once we get to that element to the elements the first element is that a person either ate exercised control over or the right to