next case on for argument is united states excuse me united states versus does not incorporate slick law definitions of controlled substance and thus does not encompass an overbroad state law that criminalizes substances are not regulated either federally or by most american states there's no real dispute that the  term drug trafficking offense and then applied to modify categorical pro choice to the state law at issue in those cases yes there really help you because you're not asking us to apply a modified categorical approach the visible based on the text the penalty provision and state law state law state case law and state jury instructions and we we've sort of gone through those in our briefs and i'd be happy to go through those in detail but i would also like to point out that the government has essentially given up this point the government makes no argument on appeal that this statute is divisible and so because those we only need those courts for the first step because the second set i think is a winner for us anyway so why should we just be looking at the pla think the plain language i think it's fair to say the playing languages and the u s it's not entirely clear which way it would turns out that ambiguity for well in the sense that it just says you know it's an offense under state federal state or local law that prohibits essentially the distribution of a controlled substance ok the reason is the term controlled substance and it's that is the term that's ambiguous whether controlled substance means any substance controlled by you know whatever the jurisdiction decides to call a controlled substance or whether it has sort of a generic federal meaning and this is where sort of you know this is a situation where you know like you can baseball with a runner at first base is you know the tie goes to the runner because there's a very strong presumption i should be the ref might get it wrong but you know that the idea is that there's a very strong presumption of reading federal law in particular federal sentencing and has meant and in particular you know national guidelines to read those laws do something different and we look at the firearms of fans the next one part roman five and it makes specific reference to how a federal provision eighteen u s c the firearms provisions that we're all familiar with right yes you're right so we know that the commission sort of knows how specifically to engage a federal definition and i would suggest it did not do so in  not you know ever since this is not just a general popkin the drone presumption of this court in one nine hundred seventy five in park and said governed in the title seven context but taylor in particular rights of the congress as a general approach of defining near unicorn to find a federal sentencing predicate that enhanced as a sentence based on whatever the state chooses to call it and if i think i can only find one in the entire guidelines it's into t one point one it's pointed out by the government and it's by this court in savin the context of you know tax evasion and if tax evasion is the context was involved the proceeds of i think a criminal activity and there's a very very strong definition in that case  of what criminal activity is that essentially says that you know criminal activity in it means anything that is a crime under you know any federal state and local law and that's the kind of plain statement that you need i you know the i think the letter is redundant given judge carney's presence but it's it's up to the court i don't know what the court's doing in townsend i think that i would concede and i believe my adversary we can see that  is a case which does not deal with controlled substances united states versus castillo it's in our court here sixteen four i want to know which is addressing kinetic law and so on our docket that call on us to derive a generalized federal off ends of robbery or what have you and increasingly it seems to me that this is a project you know for the federal defenders generally or the american law institute generally because it sometimes well involve examining the definitions of often says across all of the states and looking to any federal interpretations as well as any project like that under way at the federal defenders or in some other big national organization we are not aware of such that you know we represent individual defendants and we make the arguments when they come up and i obviously we we have been involved in the same arguments as well  i don't know what the solution is except that in each individual case this comes up i would say regarding to steel that this is i don't think controlled by that order because it to steal this issue was generic caught my attention also in christie you know is that the order requests the government and the defenders to consult with each other to determine what materials we should look to what's our analytical approach in determining what a generic federal offense would be whether it's manslaughter robbery you know you know burglary what have what have you and so it's an approach driven order and i mean i assume that the federal defender center preparing material to address that analytical question is that right yes i believe so i'm not personally involved in responding to the order in this deal but i'm aware of it i think that the in terms of the approach i think that you know what this all comes from taylor   you know whatever questions there may be about how to come up with a generic offense in sort of on the borders and i think that manslaughter is sort of one of these different difficult cases i think it's  after consulting a laboratory studies by universities that these substances were essentially in active and there was no evidence of abuse and so you know we behind all of that i mean we get to that if we're at the what the government relies on and what the district courts that have ruled against us have relied on is that it is the phrase at the beginning of the definition of offense under federal state or local law and this is just not a plain statement of an intent to incorporate state law norms because we know that the exact same phrase is used in the parallel definition of crime of violence and that lists a whole bunch of offenses that everybody agrees this court in the sentencing commission agrees are have generic uniform federal definitions robbery statutory rape kidnapping and so on and so at the least that statement is not a plain the cation of an intent to incorporate still law norms the joe rome presumption of uniformity governs and  therefore we prevail thank you thank you thank you reserve two minutes for rebuttal mr dunn and please the court david and for the united states i also represented the united states in the district  the district court correctly concluded that the key analytical step that the defendant relies on here is not necessary that it is not necessary in every case to resort to a generic definition of an if a predicate offense under the guidelines writing for the court in need to on versus holder just prior explicitly acknowledge that there are categories of offenses particularly technical offenses that simply do not have a generic definition this is not burglary or robbery or manslaughter this is actually an offense with essentially an ever changing definition as your honour's we're just discussing this is something where administrative action by the d a administrators can add and remove substances from the federal list there are different procedures in different states some of which do administratively as well so the idea that there is some generic list of controlled substances is simply a false assumption underlying the defendant's entire argument here that the guidelines are looking at the term controls it does and the definition is yes that's correct the definition of a controlled substance for example in black's law dictionary is simply any substance controlled by law whereas if you were to look up the definition for burglary for example  talks about the on lawful entry into a dwelling more other building and sets out a set of circumstances this was very significant for the supreme court in s q l santana which is one of the principle cases that the defendant relies on that the state law definitions of sexual abuse a minor there differed from in that case as well the black's law dictionary definition talked about a specific age of consent to sixteen or so in a circumstance like this where the only definition we have for the term is whatever a state chooses to define it as then by using that term by not incorporating across reference to federal law and by applying the predicate to offenses under federal state or local law the district court was correct to conclude that that's all you need to look at state law for the definition of the offense you agree that we should hold the case for town i think that depends on a couple of wrinkles in towns in your honor there are so you don't know that until we see the decision down so i guess that's right your honor there are certainly similar issues this is obviously a different statute but i think it is fair to say that the interpretive questions overlap heavily and you agree as a technical matter that it is an indivisible statute  i think that it is hard to come to any other conclusion after harben and i think that is relevant when the court is considering the effect of the other circuits decisions here and you did not appeal that the  determination regarding divisibility if that's correct your honor i think it's significant because when assessing how the the other circuit courts have addressed this question got no it's really irrelevant  actual substance was the controlled substance that the defendant had in the prior and we have to close our eyes to what it was because we have only whether this is an  it's controlled by state law controlled substance means once it illegal under state law that's correct i think that that's the import of harbin and i think that's where this that takes this court further away from the courts that have addressed the definition of controlled substance issue differently because again in the ninth circuit you're talking about a very different analysis and frankly a very different outcome i don't think we can ignore the way outcomes drive these decisions when the ninth circuit is saying well we'll say it's got to be the federal list of controlled substances that's not really going to have an outcome difference here because everybody agrees it was heroin or amphetamines or whatever and so we can get to the same conclusion so this court's already going a different direction with respect to this issue than those other courts and that raises a serious concern in terms of the continuing applicability of the guidelines because to adopt the defendant's approach here combined with the holding in harbin is going to result in a world where there are very few qualifying controlled substance convictions that are qualify as predicates under the courts out of state courts yes that's correct john or local courts for that matter at the sentencing commission can rectify that problem right but i don't think the sentencing commission has a problem to fix your honor because the extent there's  ambiguity important ambiguity here that affects the length of sentences that people are subject to they can they have the authority by the sentencing commission can certainly always respond your honor to fix whatever they think needs to be fixed that certainly could be done here by adopting the more formal form of saying a controlled substance as defined under eight forty one and i think that's the distinction that justice ginsburg throughout significantly for the supreme court in versus lynch justice ginsburg had no problem conclude being that controlled substance unadorned by the cross reference to federal law means a substance controlled by whatever jurisdiction is doing the controlling in a does have some effect on my these have significant consequences in sentencing disquieted by that observation but i think that your honor that issue goes the other way and goes to state's interest in this for example new york state is in the process of scheduling additional substances addressing a particular opioid crisis here in new york and is making things criminal in order to address a local concern under those circumstances it seems decidedly problematic for the federal government to come in and say we disagree with your efforts to exercise your legislative prerogatives that makes your offense not generic and therefore people who have committed serious crimes that have serious negative impact in the jurisdiction in which they were committed have no enhanced effect on their federal sentences for later offenses that's one of the things judge nathan had on significantly in the boy which is the other significant district court opinion addressing this issue is that again that disquiet can go both ways very easily makes for discrepancies in sentencing that are significant individuals in the context of the prosecution for a federal crime well i think it's important to distinguish between a discrepancy in the guidelines calculation and a discrepancy in the ultimate sentence it always remains within the district court's discretion to acknowledge information brought to their attention by the defense counsel that this is a rare substance that this person got convicted in arizona for something that only arizona criminalizes one of the purposes of the guidelines is frankly i think way back when i was trying to make a uniform around the country was sort of flies in the face of that has the potential to fly in the face of that and also we are enjoined to look at the offense in a generic way and often don't have access to actual information prior convictions and drugs of interest and that's how we ended up in the categorical approach as i understand that's like i said you know that's certainly true with respect to the guidelines calculation i think that does not bind the district court's ability to consider facts relevant to the district court's determinations  sentencing with respect to the concern about uniformity i think it's not an issue of substantive uniformity that the guidelines are promoting it is a uniform treatment of like situated defendants nothing about what the government is saying here would result in different defendants convicted of the same predicate offenses being treated any differently it would just result in defendants who have been convicted in crimes under some states getting those convictions counted as opposed to the defendant's approach which would mean that the commission's goal of providing for enhanced sentences for people who commit controlled substance crimes essentially never receiving unhandsome and so regardless of what the underlying drug offense was no matter how serious simply because the d a administrator has decided at a particular point in time to delist some substance and so at that point it's unclear why the d a administrator is a better arbiter of what is the generic drug offense th for example the new york state board of health or the arizona legislature which does these things through an act and so where you have these constantly shifting sands we still have to apply the controlled substance guideline so the question becomes is this that category where there is no generic offense it's not a necessary condition to find a generic offense every time that's what the supreme court said in egypt so where you have something where the very definition of the term is simply a substance controlled by whomever is doing the controlling it seems reasonable to say that the commission's use of that term meant to incorporate the state laws doing the controlling that was the distinction the supreme court found significant i distinction that the district court found here and that correctly ensures that people who've committed serious predicate crimes get the guideline enhanced mintz that the commission intended for it thank you thank you thank you mr  want to define it and there it says criminal activity means any conduct constituting a criminal offense under federal state local or foreign law that is a very different than the state the definition we have here and it's that kind of plain indication clear  statement that you need to the part from this very strong presumption that federal sentencing predicates have uniform national federal definitions and then second the government's argument here you know is really this idea that well controlled substance is just whatever if you look at the dictionary it's whatever the jurisdiction thinks is controlled that's really that argument is on all fours with the argument that the supreme court rejected and ask about can tanya they're the defense was sexual abuse of a minor which is of course also not a common law fence it's something that was sort of made up and the government's argument there was the idea that well you know what's a minor a minor is someone below the age of consent and what's the age of consent well you know it's whatever jurisdictions we can we say that what the sentencing commission did here was you don't need to i guess is my point you don't need to because because the presumption we don't need to answer that question that's relevant it is i  beg to differ and it is relevant because there's such a strong presumption running through all of the supreme court's cases about about federal sentencing predicates that you look for a uniform federal definition that it would be such a departure from ok and that's just based on all sorts of false assumptions about you know we don't know what kind of laws are out there whether they're divisible were not in harbin i think this court pointed out that it's only this particular new york law criminal sale in the fifth that had this extra substance h c g all the other ones the ones that we frequently see in this district and in this circuit do not have that extra one and what county and then of course those three other circuits i just pointed out the states that  use there were in fact divisible and so you could apply the modified kerrick approach and then finally the last one i'll say is that this is of course the advisory guidelines right you know the circuits instructs the district judges to still you know follow the chemical process and to find the range but after that the district judge is certainly free to look at the to make a preponderance finding about the actual facts of the the underlying offense and the past offense and sentence based on nothing to hear you argue that the determination of the guidelines really doesn't make a difference because it's up to the district court eventually to apply the guidelines with all the discretion that seems to run counter to the arguments i usually hear from your office that any error in calculating the guidelines has enormous significance and can't be ignored i'm not saying it makes a different courtroom i'm not saying it doesn't make a difference i'm absolutely not saying to make it doesn't make a difference i'm just saying is that it's not like a district judge is handcuffed and you know he has to put the blinders on and can't consider the nature of the offense that's that's all i'm saying and that you could take that into account in sentencing the defense thank you very clear to both of you well argued to keep an eye on the cases that we've talked about obviously we know you will and depending on what they say i don't we may ask yourself a mental briefing whether briefing thank you