there were three cases on this morning the docket said for all argument will begin with cars number sixteen dash for one zero six nine united states of america versus one has b the court to the shepherd for mr espinosa boswell to the issue in this case is whether a conviction for indiana dealing in marijuana categorically qualifies as a drug trafficking oftens within the meaning of the two thousand fifteen version of the illegal re entry guideline the answer to that question is no because the statute is indefensible and overbroad i'd like to begin with a brief overview of indiana drug law and then discuss the divisibility issue and then the over breath issue the indiana dealing in marijuana statute her habits any person from knowingly or intentionally manufacturing financing the manufacture of delivering or financing the delivery of or possessing marijuana with intent to perform one of those acts and the way that indiana has set up its drug laws is that there are many statutes that prohibit the exact same conduct but then substitute different substances such as methamphetamine cocaine or a controlled substance but they all use that same structure the first question in this case is whether the indiana statute is divisible you've got to w so divisibility is whether the alternatives in the statute are elements or means and as the supreme court has said in mathis elements are the constituent parts of a crimes legal definition whereas means are mere facts or ways of committing a single often and the primary test for distinguishing between means and elements is whether jury must agree as to the alternatives indiana law makes clear in a few different ways that the alternatives of at least delivery and financing delivery are means rather than elements and i'd like to cover three of those the smarting first we have to value do just get a conceptual level it's hard to imagine financing dealing not being dealing so so can you give just your best indiana case where a conviction would not mean meet the federal drug trafficking i think the best example of that is actually the indiana statute that defines that i'm not at that we've got him and neither of you have  any twenty a j on our case because steele recently right but you're familiar with that case yes i am so if you've read the majority there it's a type majority but the majority says you can't just look at the statute you've got to come up with a case right and  best indiana conviction under forty eight for ten that would not be federal drug trafficking i think the vasher case is a good example of that it's the double jeopardy case that's cited in my brief and in that case we do have an example of a defendant although it's the methamphetamine statute it's the same structure of manufacture deliver financing that same structure and in that case the defendant was charged with two counts one count was delivery of methamphetamine another count was financing delivery of methamphetamine and the defendant had been charged in separate informations that were later consolidated slots why it was charged separately like that and the so that provides an example of the indiana prosecutor's charging that i'd suggest the math the structure is true but it doesn't tell us why it wouldn't be equivalent to the guideline enhancement phrase right i think another example is the height case where the but hike said purchasing for personally use doesn't qualify that's true but the case does discuss what financing means according to the indiana showed that the defendant had committed a purchase but not necessarily a and financing but in that case the court did discuss what financing means in indiana law so i think that does lend support to our not that i'm aware of is it consistent with the intervening supreme court case as keeper or however you pronounce a couple days ago question actually i apologize no that's all right so last question i'll let you keep going the argument the seventh circuit case that looked like it could be i have for you have against but therefore you lose lopez right no press is divisible therefore you loose your answer would be math as now proposes that absolutely is there are seven circuit case that said that is not a static but then it does say it's over it's broader and so that portion would stand in if we will otherwise we have a split because in lopez the court did conclude that the indiana statute is overbroad and without the guidance of mathis did not engage in the divisibility analysis that math is clearly requires and jumped right into the modified categor to consider whether the documents in that case and none of this was discussed by the district court because it went off on a totally different theory aiding and abetting in my right that's correct yes the district court held as in el paso district court case have held that the financing is the equivalent of aiding and abetting but our argument is that there are two problems with that argument and one is that the indiana statute separately criminalize aiding and abetting and there are examples of indiana cases where the aiding and abetting statute has been combined with the dealing in drugs statutes and so if you interpret financing to be the equivalent of aiding and abetting then you have the observer observe result or someone could be convicted of aiding and abetting the aiding and abetting of a drug trafficking often says so and the other argument for not interpreting the statute that way is that the plain language of the guidelines commentary requires that the principal often officers that are counted deal with aiding and abetting but it's the same part of the commentary that deals with aiding and abetting and conspiracy and attempt if if you're persuasive that the just court erred it's aiding and abetting analysis and if neither of you have brief what's the best what relief would you think we should do i think we've provided enough cases in our brief to support that the statute is indivisible and overbroad and so i think the case should be case i think supports to the statute being to indivisible that was a double jeopardy case and the court held that the trial court had erred by entering convictions on both dealing often says and if the dealing often says of delivery and financing or separate often says that it would not violate double jeopardy for there to be two convictions so because the court found that there was a double jeopardy error in that case the delivery and financing are clearly means and in that case the trial court itself recognized the double jeopardy problem and had merged the convictions for sentencing but then the court erred by not going the extra step of not entering conviction on both of those offices and even though the basket cases unpublished i think it is still helpful on the indivisibility question because the error in that case was so clear under indiana law that even the state of indiana had agreed that there was an error in that case we also have the pattern jury instructions with which set out the alternatives in the indiana statute in brackets and are written in the could do that yes the government has argued that the air in the case was not preserved but i would agree with you your honor that we did preserve the objection in this case we filed a written objection before sentencing and urged the objection again at sentencing so i do think the this case is preserved and the discussion of the lower guidelines range under the new guidelines was all subject to the district court having over ruled the objection to the sixteen level enhancement so i do think the the court's review in this case is didn't  and the third case i want to discuss this morning for disability is the height case which i already mentioned as well and in that case the defendant was charged in a single count with knowingly delivering or financing the delivery of a controlled substance  jury clearly did not have to agree among those alternatives and the high case also demonstrates in another way that delivery in financing are not the aren't are means rather than elements because the defendant had raised the sufficiency of the evidence challenge on appeal and the state argued in response to the evidence was sufficient either because the defendant had delivered the drugs or because the defendant had financed the delivery of the drugs and because the state had made those both of those arguments in support of a single jury verdict it's clear that the jury was not required to agree and that the the alternatives are means the government makes an argument about the different penalties in the statute for amount of marijuana showing that the statute contains elements instead of means but the penalty for amount actually applies equally to all of the different alternatives in the statute and so that does not end up demonstrating that there are elements in terms of the over breath issue the guidelines commentary defines a drug trafficking oftens to include eleven specific acts and none of those acts are financing so under the pla language of the guidelines the indiana statute is broader than a drug trafficking oftenest and as we already discussed the lopez village case supports that argument although that case dealt with dealing in cocaine it's another one of those indiana statutes that has the same structure as the dealing in marijuana statute and the lopez case or rose in the immigration context but the way that a drug trafficking crime is defined in immigration laws pretty similar to how the guidelines defines a drug trafficking often says and so we would urge the court to rely on the lopez case and reach the same conclusion in this case and avoid a circuit split and i would also like to point out on the over breath issue that the guidelines could have been written more broadly for example the armed career criminal act defines a serious drug offhand as convictions to include convictions involving drug distribution but the commission did not take the same approach in defining the drug trafficking oftens and level and handsome and had not been applied the guidelines range would have been eighteen to twenty four months instead of the forty six to fifty seven months of the district court used and although the district court downwardly varied to thirty seven months that still a lot higher than the eighteen to twenty four months that would be the correct range without the guidelines and hansen and the district court didn't say in this case that it would impose the same sentence even if it was an error on the guidelines so you can win the government's here in three ways you win in the district what's right with aiding and abetting they cited law that i didn't see you answer that suggests that that's a typical way to go you win if it's divisible that runs it  seven circuit said it plain math as it looks very hard to argue under indiana law double jeopardy you win if the seven circuits wrong that financing is in the broader criminalizes broader conduct or fourth you win just and my thought is with my colleague that the first three don't look very easy to we don't but we've noticed a casino decision that might make you win but you didn't break a steal your honor obviously so which of the three of you if you don't have the district court was correct to follow judge fourteen as western district of texas but financing constitutes a betting what's your best circuit case that said aiding and abetting can be equivalent to federal drug trafficking instead of the look at us advisory so that's a technical argument there well how does that work indiana says you can't cite it to the airports but that wouldn't apply to us if we think it's presidential and not cite a bill to an indiana court discussing in the l a law how c there were separate counts charged which ultimately is separate counts of drug trafficking which resulted in the single conviction much like one can charge possession of ammunition and possession of a firearm but the government has the united states has to elect that sentence and  we can get a separate conviction on each count we have to collect at sentencing which count we wish to proceed with for the purpose of sentencing the merged this goes to divisibility are there separate crimes hence one would be double jeopardy is the others out there are you saying bash shows that conduct it wouldn't all conduct would be federal driving which what's the argument you're making the argument i'm making is f bursa state it's in the it's in indiana case from twenty six team the finn it was convicted of multiple offenses arising of his from his conversion of pseudoephedrine to methamphetamine the indiana supreme court itself not an intermediate court the suggests rather strongly that the two offenses are separate crimes with separate elements in that a conviction for financing should be treated the same way ok that's a divisibility argument right so you say you're not that's not aiding and abetting equals nor that's saying it's divisible so you win because we should have moved to modify categorical approach and this gentlemen's shephard approved documents which show that's what you argue that is correct along the lines which i am only apologetic when you've got thirteen minutes wanted you to the extent you're familiar with castillo go ahead and tell us why we would affirm based on items that carry normally if the statute lists different elements that carry different punishment there elements here they all carry the same punishment however the statute does not list illustrative examples it lists a very specific set of four elements the statutory alternatives all carry the same punishment manufacturing financing the manufacture delivery and financing the delivery  are listed as meth is said an indictment and jury instructions could indicate by referencing one alternative to the exclusion of the others the statute contains a list of the elements each year goes to a every judge on this panel was convinced that that case was implicated in this case it was a decision which occurred subsequent to your briefing and it's one which frankly i viewed as the classic example of going to twenty eight a letter is the  i'm questioning how beneficial it's going to be to continue argument when there is and decision which all three of us think affects what the outcome ought to be in this case which is to say you can use the rest of your time if you choose but i think you've heard enough about what we think is important and what hasn't been briefed and so how our allow you to make that decision we're going to ask the post yes i would just like to add one thing since we are going to be doing the supplemental briefing on the castillo case and have opposing counsel brought up the illustrated examples argument that is in mathis but i'd like to point out that this court's case in lobaton discusses how the lack of illustrative examples does not render a statute divisible the way that the presence of illustrated examples would and that i wouldn't overcome the other case question no i have already yeah you get a good argument about divisibility that the difficult task for you and to steal is to somehow find in indiana case law that indiana's prosecuting crimes that would go beyond what it seems like they would allow i guess i have one question do you think that intuitively that means you've got to find a published decision could be and i'm published could it be the fact that defendants pled guilty so there was no court treatment of it that i don't think it needs to be a published case i think with the way that plea bargaining works that would be unfair to require a published case on the subject and it would provide examples of indiana prosecuting this the statute in overbroad way even if it was a