substance we know a couple of more things about this other than statutory recitation of the elements we know from jury instruction that is a uniform instruction in oklahoma as well as the ted moore case sorry you going to talk about it more go and talk about it more and then i'll ask my question well and then the remaining i think facet to just write on the board to begin with is to add more says that endeavoring does not require an over an act so i think that frames the crime that we are analyzing well one of the things that sort of puzzles me in this case is is based upon your initial statement which is all that we have from the statute is the pla word endeavor there is no definition of endeavor and what that leads me to ask is when your client doesn't object below and there is no definition of endeavor why should the district court not didn't object why would the judge want to look at the we g instructions why would that have been an issue and to add more sites that instruction and why would the judge have looked at it more if nobody's arguing over it that's my point mr barry i mean if there's a statute p s r comes out the p s r says this is a controlled substance offense it involves endeavoring to manufacture methamphetamine there is no definition in the statute so even if the court rouses through the statute to try to figure out what it is there's no definition why should the court go the additional step of looking at that we are going to do research and look at it more if nobody's fighting over i can substantive plane air reviews that that review and whether whatever might have happened in disarray court had the issue been raised or that like i think the kid an is a good exemplar from just two years ago shows its own plane the two offered to sell cases and discusses not only colorado case law case law from a couple of other states he did but but the thing about mckibben is in mckibben the court also relied heavily on the fact that we had already construed the particular guideline provision at issue not to include i guess not bone of offers to sell and the point is we have no similar  it offer to sell was off the table the point i'm making is that in this instance we don't have that definitive construction of what the scope is and i take it in light of the well let me ask this question light of the word included in the guideline provision i take it you agree it is not just the a numerated offenses in the application no one you know what i'm talking about right sure ok in light of the term include i take it you agree that application no one does not just reference the a numerated coate offenses but it could include someone's right it does not have any language that points to anything outside of similar i think that that would be definitely appropriate ok and under plainer review we don't have a th circuit case as we did in mckibben tells us absolutely it doesn't in but i still don't think that distinction obviates that the appropriate analysis of this case is to to through to trek through the basic analysis that applies and and reach a legal legal conclusion and i'm familiar with cases in the past from this court that have said that a presidential case is not necessarily have to exist or plain or review to spring from an error that this court is at liberty to conduct the appropriate legal analysis and determine what the law is and if there  is alternative circuits to this will probably jog everyone's memory cases of said if they're circuit splits and they have fussed about what the standard is that will defeat plainer but where there are other circuits that have sounded on the issue then to hang on those cases in determining that there is a plain error offer sells an example that that can pave the w for plain error there had been at least two other circuits that held offered cell was a problem similar situation here is a really two other circuits interpreted i don't have other circuits but you don't have our circuit right that's right so just to recap your argument then on plain error you could just complete the sentence i've met my burden to show plain error because i show plain error because it is to me clear and obvious that going through ease different places where a prior offense might fall see other conspiracy that fell in a forty six does not include one in as referenced here or that application no one relates to drug offenses right yes ok so that doesn't really hold true that hunger hat on the fact that everyone required an overt act not every in coate offense an application no one requires an overt act does the one conspiracy does not require an overt act as to drug conspiracy yes you are correct that i have part of my argument also is pointing out the conspiracy requires an agreement between two people that this is nothing similar to sorry that's funny i have a slightly different question now  do you have any examples of fender and oklahoma being prosecuted under state statute the too far away for every command you factures controlled substance where the defendant was prohibited materials no i don't and i don't think that it would it be possible for anybody to come up with those except for doing a lot of research into the filing of informations and disposition of informations in the various district courts because this is a very rarely prosecuted crime in the state of oklahoma i don't mean extraordinarily rare but you can measure from a lack of court of criminal hills dispositions of this case even unpublished dispositions there are very few argand between let me make sure i'm being clear on where this question is coming from and that is the poignance alvarez issue where maybe the statute at least in theory the statute of conviction is broader than the definition in the manufacture absolutely acknowledge that but i don't think that we go through that or because i think case law supports that where the answer is provided by the statutory text and of course we also discern  case we think you know that there is no requirement of anything to be possessed any effort itself i don't think we need examples in actual cases to tell us what any effort means we can judge from the statutory text in any effort any than the most minimal effort that can be well under the degree of substantial applied in a way that is that broad is the weegee and as a broad as you might going from the plaintext and so so is ted more the only relevant case that you found in your research that focuses on this particular prosecution and how and in any even then they weren't they did defend it at least as i recall was not being prosecuted for this offense and more they were just talking about it in the footnotes so are you aware of any appellate o c ca publish d speak to the scope of this provision there is a dearth of case law published or unpublished that can provide us answers and so i believe that's appropriate to look to the statutory centered in on the plane error issues the st two prongs there whether or not there was error and whether it was plain and just for purposes of argument we would make it clear that the government can say that the rd and th prongs would be met if this court were to find plane error just so we can come off the air no we do not i think the easiest way to resolve this case from purposes of the government probably this court would be to focus only on whether or not point because that is a fairly obvious issue that i do not want to concede that endeavoring to manufacture in oklahoma should not be allowed as a drug offense here because it has been used in oklahoma and there are examples in our brief page eight hundred and thirty nine that these are not appellate court cases from oklahoma they are district court cases from the federal bench discussing cases where this statute has been applied reagan's case and the levin case which are examples of people gathering the materials that they need to go further and then manufacture meth and well that was part of your argument of saying this is how when one is charged with this if sense this is usually what they're doing right now the reply brief makes it seems to me a pretty valid point which is we're not talking about what people are doing we're talking about the elements of the offense right that is correct john in case so why is this why is it relevant at all what people were doing when they're charged with  offense i believe it's relevant for the reasons posed by judge matheson earlier and to give the court sort of a context of what in the world does oklahoma use this for because as as mentioned during opposing counsel's argument this is not a case where we have circuit law this is not a case where we have laws of other circuits interpret a similar crime as you just say with offer to sale or perhaps conspiracy so we're just trying to give the court some of what this crime has covered that my understanding is that you're arguing that this that the endeavoring statute is typically used in a situation where the defendant has gathered or has possession of materials but that takes us takes us down the road a ways but don't we need to get to the point of whether there's a realistic probability that it would be used in the absence of the defendant having drug related tiriel isn't that a different question or a question that extends beyond your point your  kind of gets us a little ways in that direction but not all the way yes your honor i agree that is why it would have been so helpful if this issue had been rice with notice and briefing and time perhaps even to call and some expert who could look at the field about on this matter and give us an idea of statistically how many times has it been used this way has it ever just been used when there was no possession of dangerous chemicals all of that could have been developed for this court the question i have or you're saying it would have been nice if the record had been more fully developed out how the statute is used my question is is that argument  whether there was error or there is error in considering statute to be a controlled substance offense under the guidelines or does it go more to the fact that we don't know whether the error was lying so mean that and i guess it would certainly have been nice in terms of history or to be put on notice in terms of plain error but now it's up to us to decide whether in fact it was an error and on that point shouldn't we look the st comment of the guidelines right that's my understanding and so it could be similar to attempted also similar to conspiracy which it could be similar to several of those and i think that that we could go through and explain why it is not maybe attempt is not conspiracy but it doesn't have to be and that's where it's helpful to look at the different definitions that have been used in the scam authorities that we have we have the that is talked about a systemic effort there must be some physical subsists dined effort toward accomplishing something if we look at the uniform jury instruction you know i'd really like for you to find out what your husband is up to because we only want to give money to the people we think are going to be in our corner down the road and the supreme court said that that is not the same as influencing a juror that the defense attorney or the attorney involved tried to cut corners and be clever but the supreme court said endeavoring is exactly what that is going toward it's not the issue is not the actual crime here which would here be manufacturing moving towards but moving towards doesn't get you attempt right now ok and so and i'm looking at millburn case which of course is unpublished even there when you're talking about exercise physical and intellectual strength systemic or systemic i mean or systematic when one really meant i mean in that situation that could still be preparatory acts which would not be content would not be attempted either right you know when you could you know the statute says mere preparation doesn't equal a ten so system as a systematic or systemic effort could be mere preparation right it could be mere preparation however here preparing to manufacture a meth amphetamine you could can collect all of the dangerous chemicals so you can think about it and write a list of what you're going to what i'm going to cook up some good math and you write a list well i don't know whether use a different definition isn't that the one we should be focused on  the any effort is certainly the jury instruction now it's broad isn't it it's broad the lax law dictionary alternative definitions for the word endeavor that have been used over time including the case cites that he cited in the in the uniform jury instruction emphasize something more it's not the same thing as an attempt it is a systematic and we would argue that that is even exercising more than in an attempt the jury instruction does it requires  erratic lay that may be true and i think that perhaps part of the reason that we see such a dearth of opinions is that i had i and i  not profess to be an expert on the development of the methamphetamine on oklahoma but given that the date of this instruction the date of the tip more decision it is likely and this is something that would should be explored if this topic  back and is looked at as to whether or not in the future it's error it may be that oklahoma after determining all of the dangers attendant to the chemicals involved in methamphetamine developed additional statutes that more here is not plain and the ruiz case which is cited at page thirteen of the defendant's brief makes the point that generally there is not plain error if there is not a supreme court decision or a decision of this court directly on point  unless it is clearly erroneous and there's maybe only one interpretation of a potential statute here there was no th circuit i saw on point recent unpublished cases showed that you can adopt other words like transportation that aren't in the laundry list and i nilly and like mad and mckibben there were not cases from other circuits indeed from from the research that i did i could not find another case under the danger involved in these i'm just i'm just curious if you went out of circuit in search of cases do many of the states have a similar endeavor provision or  endeavor i can tell the court that i did look for other decisions citing the word endeavor in these contexts and found that therefore we would argue the error was not plain the matter should not be reversed and we are the court to a far thousand and one so milburn followed the definition of every state in the jury instructions which did not have the later developments in oklahoma law so i would point that out along with the fact that  yes just a quick question to you're not questioning that this statute is divisible right yet i don't think the visibility comes into it ok you have to have over pre