additional six level increase the base offense level that resulted from the conviction enhancement who supplied the prior arizona marijuana conviction in this case was categorically overbroad because arizona statutory the guidelines in effect it's something the purpose of the guidelines is uniformity in sentencing using different definitions of the generic crime from various different points in time would create just parity the government offers no case indicating that any other rule should apply it's cases only provided that the elements of the prior conviction are locked in on the date of the prior conviction which is  is not nearly as silent as whether it contains an exception for him it's clear there isn't and does not include the federal generic crimes exception in addition i want to highlight the facts of the anderson case shouldn't qualify as marijuana and there's a court of appeals in a change that hasn't been superceded by statute or overturned that i can see in a way so it doesn't matter the state doesn't have to test for active are many long to be in g and jim were both cases similar to this one where there were players in those years increase the guideline range which is the starting point for the whole federal sentencing hearing appropriate under any standard of review here because if the senate fails to meet his burden of showing that the arizona courts have ever applied his statute of prior conviction more broadly than the federal definition even after the exception for him was enacted in two thousand and eighteen and it and focusing on the andersen case that the defendant argued both in its brief and the warning that case does not involve the statute of the that dealt with misdemeanor possession of a marijuana plant under a completely different statute which does not obviously apply in this particular case so the defendant has still failed calculation that this must consider the facts and circumstances of each case and in this particular case the district court did not bind that sentence on the guidelines and fact the parties from the but your honor again our position would be in that in that instance because the court made a very substantial record about why it went to the defendant to the thirty months including the fact that he was on probation that he had a criminal history that was that was some significant the fact she stated i can't overlook how serious this crime is especially the threat that the defendant was circumstances where it is not appropriate because the district court makes the substantial record showing that there are reasons outside of the guidelines that that drove the sentence and i believe that this case has such a record as i and i understand that this court has has found that the drug schedules do apply to this definition however there is no expressed language that every single modification especially a  reflected in that definition to render any previous convictions and to be an invalid and i believe it was the supreme court line of cases and so calling them if i recall correctly guy that we want to give the congressional intent in amending the statute to to to keep consistency among that the state cases and that we are not to presume also say that it's it needs to give way to the intent of the sentencing commission and here the sentencing commission could have reflected the guidelines to reflect the could have i'm sorry amended the guidelines reflect that chin and chose not to do that so that here we have a defendant who was convicted not of a have a sense but convicted of trafficking in marijuana and the exclusion of have again such a small shapes the concentration to it in our position to be a merely a modest deviation because realistically this is not going to apply in in the majority of cases and in fact perhaps no cases because the defendant has not shown again under any any standard of review has not shown that th ere has been a single case where arizona has convicted and individual of a felony drug trafficking offense and offenses involving him something that is so benign that it has a barely perceptible t h c level and so because he cannot meet that burden under any standard remember it's not appropriate especially plain error that apply here because as our discussion i think demonstrates this is not a purely legal analysis this is something that does require looking to how the state treats the offenses and that has failed to raise that before the district court and failed to give the parties the opportunity to to look to those to to look to those potential cases it failed to give the court the opportunity to determine the sentence independent of that calculation which error addressed that issue so i would submit that plan or review should apply here and certainly because neither this court nor any other circuit has addressed whether the two thousand and eighteen exception invalidates all prior drug trafficking these convictions are considered in the base offense level the guideline calculations under two k two dollars it is it is something that that is significant something i believe so significant had the sentencing commission intended that exception to apply would have made the appropriate amendment and they did not do so and so the guidelines in effect when a defendant was sentenced did not reflect an exception for him and there is nothing suggesting that the defendant was convicted of a have the offense nor that arizona whatever convict anyone or prosecute anyone under the drug trafficking statute of the defendant conviction not