for three independent reasons first in determining that his convictions were offenses committed on occasions different from one another district judge made findings as to non elemental facts in violation of a  second the convictions were not punishable by ten years or more because there were no aggravating factors that would have permitted the maximum ten year sentence and third because all washington convictions may be obtained on an overbroad theory of court recognize that washington theory of accomplice liability is exceptionally broad and therefore it held that a washington conviction for delivering a controlled substance was not an aggravated felony  aca is there could there be a case in which the shepherd documents i understand nobody's arguing this is reversible crime but there could be a case in which a shepherd documents ma clear that liability was based on being a principal rather than a there are better but if you ask that in terms of life as a legal matter could that happen i would say there could be but now this is very clear that we florus because i can't pronounce the first part of the hyphenated name of the veto so i guess it is what are the limits of that doctrine for example if we if we could tell from the shepherd documents that a jury was not instructed on either or to better liability would a crime be divisible in that sense i don't believe it would i mean i think it's very clear from taylor de cop and especially mathis that you don't really look to the documents to determine something is is divisible if the state's law is clear and no one is arguing that washington state's law is not clear and you don't look to my answer about this case and so the so that we were not making as he wrote accordingly in this case was the state knowability it was not ok so in this case is it possible that what we have is two statutes that apply the eight are in a better statute and the principal statute and we can tell that the conviction must have been on the principle basis because there was no way to do a better structure i don't believe you can do that because under washington law it could always have been an aider and abettor i mean this really even if the jury didn't know about the theory of aiding and abetting yes similarly if in mathis if the jury didn't know that it could convict on the basis of a house vote the supreme court says you don't look to the document to determine whether they were instructed us to a house or a building well the fact that they're not there is a sort of intuitive difference because i presume and i don't remember that in math as they were instructed most useful for me to you for your talk about is the government's contention seventy of the a flora's isn't controlling here i mean they have they have some reasons they claim that it's not controlling and i know what you think about their reasons ok so is the involving language from the other one i don't even understand but well the involvement you know the government filed a twenty eight letter last week and i was actually very happy that they did it even though it messed up my mother's day weekend because i really it really  crystallized for me two things it crystallised one what their actual argument is and two where the other circuits want to strike ok so in terms of what their actual argument is their actual argument is not that involving in this case draws in other types of offenses like soliciting or wearing armor during a drug traffic offense their argument really is is that washington law on need not perfectly match any which i think just goes against the tide but i understood it is making two arguments so i want you to try to respond to at least one of the two that i thought it was making when i was saying forget about this aiding and abetting stuff to worry about in court and the second was yeah that it doesn't match up perfectly mean we're talking about a different men's right so it's not that there's some detail that's missing we're talking about whether it needs to be intentional or just knowing and i do think that their letter really offer some clues as to why the other circuits went astray ok so so contrarious involved nine twenty four c to before it was it was it was amended in one nine hundred eighty eight and nine twenty four c two was only about federal drug offenses it defined the universe of cases to which a nine twenty four c could be attached to a federal drug so it was had to be a statutory match if you will not it's entirely different from what we're talking about here second in contreras it was pretty tailor so it was before we even had the sense of the generic offense and it was pretty subtle or in which the supreme court said even when you add the word in a vault it still needs to be a generic match so it's very early and third it really offers no support for the government's argument that congress would have intended in much broader range of state offenses to trigger the aca the number one offense me ask you a question about the what i would call the principle offense not the in code offense let's assume that we didn't have aiding and abetting liability either in the federal offense or the state offen e would it be a generic match under those circumstances my argument is that it would not because i believe that the federal definition of deliver is narrower that distribute is narrower than the washington however and that one and seems to me you have a good argument but we have a case that's fairly it's interesting that we're going to take the government argues is directly on point and they argue that because they say that the guidelines definition is the same as laura's hold you must consider the aiding and abetting might want to talk about the breadth of that decision it's really not that broad because it only covers washington and probably for other states ok and those states could easily amend their law to require what every other state requires in terms of aiding and abetting liability and it seems to me almost if you don't know i mean what's interesting about the home our problem although we keep telling the states that they never seem to do what they don't seem to think it's their job to to write their to please you know the federal recidivist statutes and they don't do it well i mean i know that people in washington state are pushing for a more narrow aiding and abetting liability litigation with respect to the death penalty it's quite clear that washington now understand that you have to if you have to intentionally kill someone then killing someone under an aging at that age and i know the ins and i know that you chose not to talk about the printing issue but i just i want to just clear one thing about it  by anything it was but suppose we found that you were right and that apprentice does apply to this and what would we do we would tell them you have to send this question to the jury yes and they did know they sent it theoretically to the first jury and that jury was not required  the count each count in the charging document have separate dates and it did but in and then the jury convicted on each of the three counts yes but the jury instructions said that they need to find only honor about so we had counts that stated september third fifth and seventh and under washington law the date is not an element of the offense so if all the jurors thought that all three counts occurred on the fifth so which were all on or about third fifth seventh they could have voted yes to all of them they were not instructed that they needed to find three separate dates just three separate counts i know you want to save some time for a bottle but let me just ask you one question on the apprentice what if there'd been three separate trials separate trials for the same offense i mean no through three separate trials that came up with the same three convictions that the jury came up with in this case i would have the same you'd have the same argument said so there's no under your view there's no way we would ever be able to tell whether what i'm saying is that this fact would need to be submitted to the federal jury right so we have this in thirty six cases all the time well if you're just just counting them and this is what i'm trying to clarify here just counting the part of the the the problem  even you're saying it has to be just found in the federal trial i do because i think not this is really clear that you don't look to that kind of da what you're really saying is it doesn't satisfy all members tours yet because her mother's torre's only lets us look to the fact of the state conviction and found as opposed to actually found so if the state said actually the date of the offense is an element and in fact we want the jury to find it's an element that there were three separate offenses that were committed on three separate occasions that would be fine right that would satisfy a pretty that would satisfy a comp but when what we're saying is that the jury actually found it which i disagree that the jury actually found it because it wasn't required to but it wasn't required to find it that i think we've morning your honor is may please the court michael morgan for the united states i guess i'll pick up where counsel left off on the a pretty point real fast we all know that a printer has carved out the fact of conviction exception that's been that  printing when determining whether or not an offense qualifies a serious drug offense a court has to define three think three things one whether or not the offense matches the definition of a serious drug offense to whether the statute of the stat max is at least ten years and three did the requisite convictions occur on occasions differ from another mathes taylor and de camp all go not to direct convictions or career but that they involve events that were yes yes if i missed a lot i apologize but that is critical what taylor mathis and decamps all focused on the first inquiry the elements determining what the elements of the crime are so you can decide whether or not it matches the generic definition in a violent felony or a serious drug offense that's a separate inquiry from whether or not the conviction the events occurred on occasions different from another and this co fact of course and the problem is that it's a fact that isn't the fact of conviction in this instance because it's about if the question was when the conviction occurred that would be one thing but that's not the question the question is when the crime was committed i understand your honor the how can that not be a fact i'm the crime as opposed to a fact about the conviction nobody is disputing that the date on which the crime occurred is a non elemental jury just needs to look at look at the record from the state case and say yes these words are pretty cations as a practical matter not much but as a doctrinal matter it's just required out let's let's put aside the fact that it was that it was arguably found in this case but suppose there was nothing and didn't go to the jury suppose it had been on three different and have been three different trials has judged her it's positive and therefore no particular reason for the jury to distinguish that different counts and therefore i never went to the jury date itself never went to the jury why would that be a fact of can and conviction as opposed to into the fact of the crime facts of the crime are irrelevant for all purposes what's happening here is we're confusing the elements of the crime that's the print that and you answer my question suppose you had a jury verdict yes that said nothing about the date on which the crime occurred yes why would it then not be why would it be a fact of conviction of the day in which the crime occurred well if the judgment didn't specify the date it wouldn't so then you'd have to in that federal trial if you wanted to use those three convictions ask a jury to find that the occurred on separate occasions would you not i think i mean i hate arguing it's myself but i think it's a doctrinal matter at least if ok so now we have a case in which it's not an element of the state offense but we happen to know from looking at the judgment of conviction that that these did occur on separate dates what are we supposed to do in that case you say purcell controls that fact that was that was in fact the case in that ok and so i'm interested in and i'm not sure you answered judge versions question does r and bank decision survive the later decisions by the supreme court yes it does because we're not talking about what are the elements of the offense that's what taylor and recall that chris l post dates taylor and taylor is the seminal casey or not mathis not the camps if you take the supreme court at its word matheson the camps were just simply straightforward applications of what they were correcting what we were doing with those cases with that with taylor  into finding facts without quite realizing it they sort of slapped us across the face in the second ones and said don't you understand taylor you're not allowed to find i understand and i'm simply saying is that a friend the is  therefore the state crime had to match the equivalent crime in the control something you think judges scanlan's concurrence to his own opinion is wrong well i'm well because he said concur he said i don't like this result i think it's compelled by matheson taylor and it means that no washington crime will ever met will never be a generic match for the federal well it will never be a  which is defined by looking at you know state laws generally and so on so if there if if it doesn't have to match a federal crime doesn't have to match if you're a crime well the government's position is that the language of the statute by defining it as an offense under state law under state law that's the benchmark it's a state it's state law is the definition full stop so your position is that we need not engage in in the categorical analysis is as long as the state law involves manufacturing said it says state law it's a state law conviction involving the just the possession with intent the fact that it has no mens rea it is irrelevant because congress specifically tied it to state law and i would argue that even if you the court is not prepared to accept that position this particular statute has two subsections instead of saying offense involving manufacture distribute you're possessing a federal particular federal statute or one under state law involving manufacturing therefore it's different and it's outside the hotel structure as out the window and we're not looking for a generic offense either that's what you're arguing is that what you're i got yes i do believe that was the position we took in our supplemental brief i mean we also are we have two yes and involving is a broad term it's so this opposition is that involving means it doesn't have to match perfectly and that makes sense because if they wanted to if you want something can also mean it has to be a manufacturing distributing or possessing not about something else now that it has to have the the elop that the elements of manufacturing distributing of possessing i would argue that under the president's would have to have is the conduct at issue would have to involve manufacturing possession or possession with intent even if the elements of the offense don't match up perfectly with the generic or federal offenses of but what does that tell you about  window essentially yes because what the government's position is is that by using the term involving and again i don't we're not this isn't something we just invented this is the approach that every other circuit that's considered the issue has adopted this construction the statute so as applied to our case yes we understand that and assuming for sake of argument that federal law is the benchmark we understand that washington is aiding and abetting statute is more broad but nobody can seriously dispute that the crime of aiding and abetting the manufacture of a controlled substance are or distribution of possession with intent involves that very conduct regardless of the fact that there might be a quirk in the state aiding and abetting statute i want to go back to your it doesn't matter argument how do we tell how does a judge tell whether a conviction volves i would say that is the elements of the offense whatever that the of the state offense must involve conduct that amounts to that involves possession with which is a very similar definition to the when the supreme court has  construed a similar statute where it is involving fraud or deceit it's like the statute that she doesn't have to have the elements of fraud and deceit as long as the elements of the statute i'm trying to figure out consistent with the present day had as a judge determined that fact well the judge looks at the statue i mean apply there now you're doing a no you're statutory well no i'm saying apply to this case the judge looks at the statute he says ok washington punishes the manufacturer destruction or possession with intent and ok washington also incorporates any betting law i understand that but there's no doubt that these two statutes involved the manufacture possession or possession manufacture distribution or possession with intent whether or not the aiding and abetting statute is a perfect match for the generic aiding and abetting a federal agent but you're argument is one would not look at the at matches at all she did i'm trying to get to that or i'm just looking at the statute instead that's right so your argument is one need not worry about any generic offense or one needs to do and do your argument is to say does the state conviction involved in this case methamphetamine correct and if it does i don't need to worry about a match with any federal generic offense correct and that is the approach t eleventh circuit adopted in the smith case that we cited and we would suggest that that's not you know i want and that's why i want to ask you smith involves a different statute correct yes it involves a florida statute that lacked the mens rea a that's required under federal law and  analysis didn't say there is a generic state offense we're just not going to worry about eating it and i don't think that's correct what that the case i'm talking about which is smith what the court did is that they had that the florida statute lacked the mens rea they said the  rea are required we do have a match right so here you're saying we don't need to do that because your argument is that the word involving takes that out of that analysis and all well i think i've made two arguments maybe i've stressed too much on the one i mean i do believe the matters that construction you don't have to do it i do but if you want to look at a generic offense or the federal offense i believe that we would still prevail and so you don't need to really read it first that's not what smith did so this didn't do the broader think it did the more narrow what it's actually interesting because the argument as characterized by the defense was that the defense argues this which is that it's overbroad and we say we don't care this is that the state this statute says an offense under and there are a number of other circuits that dealt with issues of attempting conspiracy that they all sort of said whether or not these match they all involve conduct the i mean not oh i'm not i'm not going to say that every one of them dealt with the precise issue that at the precise are you know we're raising the three that i just sounded like to me that's what you were saying and i wondered the same thing every search to confront the issue has said that involving broadens the statute not every circuit has ha confronted the issue directly about what is the benchmark and i think that's the problem is a lot of these cases the way it's litigated and in fairness the way it was litigated in this case in until the day before as is everyone just assumes in these drug cases that federal law the benchmark and in some stay in some statutes that's definitely true because it's definitely tied directly have that i mean no one's arguing now that i understand that part that that that doesn't mean well  of quote generic definitions of serious drug offense and controlled substances parents because these terms are defined by federal law and federal law defines a serious drug offenses an offense under state law and involving ten years  an issue on that involving manufacturing distributing or why can't we just tell as the government says from looking at the state conviction that it involves one of those things i have to answer is first of all is that the supreme court doesn't the congress in writing nine twenty four two two eighty whatever we're talking about specifically said in that section by section analysis that it was mimicking one nine hundred sixty one one so we have a statute that the supreme court has interpreted that uses the word involving a generic and then under state law and the supreme court has said that that must mean conduct capable of being described as generic extortion so it's in my view it's directly legislative history that i've given to you and i in a twenty eight day letter citing sites where it goes through and explains why it says under state law so it says we're going to give you the federal the definition which basically member one twenty four c two and then we're going to say under state law in a way similar to we've defined predicate x for rico and that's one nine hundred sixty one and when the supreme court analyzed rico they said involving means generic and under state law doesn't matter  position is that it's state law extortion and we find it's not state law either that's a two thousand and three case the supreme court reiterated that in two thousand and seven this court repeated it in two thousand and fourteen in united brothers of carp carpenter i think that case is directly on point