mr vetter please the court david vetter from daytona beach thank you for the opportunity to present mr board zaki says case he filed a petition to naturalize to become a united states citizen in federal court the judge dismissed the complaint under rule twelve b six for failure to state a cause of action this is an appeal from that dismissal the framework for review is dead novo with the court construing all the allegations of our complaint  true and drawing differences most of all to him we request the court to look strictly at the facts allegations in the complaint not to an extraneous documents as m right where that the washington state conviction for delivery of cocaine categorically qualifies as an aggravated felony that's a legal determination right exactly ok so you know getting into you know how we have to have the evidence in the light most favorable to the plaintiff and all that that kind of stuff really to me is beside the point because one more thing about the framework and that is that the aggravated felony statute not by congress is for many many years a man could show that he had reformed and that he had five years a good moral character and naturalized just a punitive statute perpetually precluding permanent residents of the united states from becoming citizens the court is correct there's two rhymes that we have specified in our brief that are outside the definition of a controlled substance under the control federal controlled substance act and that is the standard with washington prosecutor crime that is not specifically defined in the federal controlled substances act and we didn't use any legal imagination which seems to be in short supply in our office to come up with these crimes there are outside the federal controlled substances i  just wonder whether the bottom line here is it reasonably probable that he would be prosecuted and issued in a point to any one case but he's any other evidence would even s prosecutions for these crimes that has to be taken as true ok if the government had denied the complaint denied that and filed for a motion for summary judgment and put in affidavits that perhaps could have been resolved but it wasn't this allegation is true we have to have to produce something that will make it an issue of fact indeed we will know but at summary judgment you can't just say you know take minus true and and produce nothing have you produce any any evidence at all that there is an issue of fact that there is reasonable the problem that the prosecution will go it is our intention a trial you're on to do so absolutely imagine a witness who will testify that he was prosecuted for that crown imagine certified copy of a judgment showing that a man had been prosecuted for that crime or even a lawyer who had defended a man absolutely we plan to prove this a trial this court is not really supposed to go there because it was alleged in the complaint that he would be prosecuted for these crimes and indeed the two courts in two cases have found that these were broader crimes also seems to me that the problem is the th circuit really did not look at the standard for federal accomplice liability as interpreted and in roseman we did we read roseman and cronan so many times that we became names anyone uses knowledge one uses intent but they it looks to me like they're the same standard the courts have really muddled their way through this your honor and so i would point to a couple things the legislature of washington said you're culpable if you have do that but remember i mean that's the decision that's the authoritative decision of the civil disorder united states we have to accept that right that's how do it that's how to understand the statute it these cases are very confusing but let me try to help the court as best i can these legislatures shows different terms washington chose knowledge congress shows willful and uses the term of specific intent if you drill down on this if you go through the plain meaning of words when we go through life if i says you intend something is quite different if somebody says you knew about something that's the way we understand what these words mean if you look at black's law dictionary and we went there we found a long historical body of jurisprudence treating knowledge different satisfied when a person actively participate in a criminal bench or with full knowledge of the circumstances constituting the charge of its that's the same standard as as the washington standard there's also called mission right is very matthew that's that's and that's the washington standard to but not that not in the statute it's not an iran where we can't just say well the statutes read differently and we're not going to consider the authoritative constructions of those statutes bar on the case of the federal statute by the supreme court of the united states and then in the case of the washington's that sheet by the supreme court of washington we ok i'm very mindful of that don't i have to though except what the supreme court the united states and the supreme court of washington say about each of those statues yes and we read where is the difference then when i look at their case law we need is confusing we read them as different at the end of the day the supreme court of washington said it's knowledge and the supreme court of the united states goes with this willfulness and your honor the introduce something else if you read justice alito as dissent in rosemond we can all become completely confused about this well you know try to figure out what the supreme court precedent is by reading the dissent he pointed out that the majority in rosemont introduced a temporal consideration into the men's rare requirement the defendant must have known in advance that one of his accomplice for to be an accomplice an individual must have acted with knowledge that he or she was promoting or facilitating the crime for which that individual was eventually charge that seems to me the same standard they do the language is confusing your honor we just point to val d v d a which is specifically on point well reason no court has contradicted it it's still good law at least we have circuit court judges who have looked at this specific issue it please the court michele taylor for the federal defendants as judge pryor has just sort of illustrated through his questions and his citation to rosemont and cronan there's no difference there's no daylight between the washington  abetting standard and the federal it and abetting standard rossa mund says that participation with knowledge satisfies intent and that's what we know that washington law requires we also know that other than i had if i had just the statutes i might be i might be with you with your adversary but the problem for me is those is the case and also that washington has adopted the the peony standard which is sort of the the sort of what rosen called the canonical formation of the purposeful intent and we see that in the jr case in the wilson case that washington law has adopted that federal standards tied its law to the federal standard the th circuit i think went wrong and valdivia flora's for a couple reasons st of all i think it by talking about the federal standard a specific intent i think it went off track there we know from rose so so bozeman tells us that specific we don't need specific intent we can also see from when a solver as that the federal aiding and abetting standard doesn't get cut off based on actions that are specifically intended because and when it's over as the federal state and the court looked at whether the california standard by permitting recently foreseeable consequences whether that was outside the federal standard and the supreme court said no but if i could take a step back from this i think getting to the comparison between state and federal aiding and abetting liability is really the wrong question because the question is was the defendant convicted of a qualifying offense and when you're talking about  and maloney it said that the can the focus is on conviction not conduct and that we focus on the statutory definition of the offense of conviction so the didn't have to do that comparison and to do that you compare the washington drugs that with the federal controlled substances act but in the wake of l to be a flores defendants are asking courts to go and parse state aiding and abetting law even in circumstances where the state statute of conviction or the record has nothing to do with aiding and abetting now and when it's over as the supreme court had to make that comparison because the statute of conviction itself encompassed accomplice liability but in hagen's this court refused to go down that  road and gamble they both said and aiding and abetting liability that's not the crime of conviction our concern is the crime a conviction and aiding and abetting liability simply as one theory of liability it's not a crime  who might have committed at himself so it's not a a lesser cup ability or a lesser means it's just a legal theory of liability and just like pinkerton liability or aiding abetting liability or direct liability that's not the test we don't see that in the categorical approach of courts jumping to the next question as far as as far as i know right now the th circuit is an outlier that has leapfrogged the statute of conviction analysis to look at a totally different statute and aiding and abetting statu and then analyze that and given all the tension and confusion about aiding and abetting law that's going to make the categorical approach even more difficult for courts to apply and the reason that's a scary thought and  the consequent st well there's nothing that indicates that congress intended to cut out or to refer to it but talked about the statute of conviction and so i think this is running away from congress's intent i think the law is a morass because as even rosamond recognize very often you have different formulations that mean the same thing so you see in some cases language of specific intent or other times you say shared codefendants intent and very often you see sort of different phrasings and defendants will seize on these different phrasings to say their convictions don't qualify and then both hagan's and and gammel the th circuit said we don't have to go down that road our question is is the crime of conviction a qualifying offense so we don't have to step back and do this comparison  to kind of give us clarification i'm ok so i'm confused by this because it does seem to me that when we're comparing the crime of conviction with the federal offense that if the state could have satisfied its burden oh with the proof that under the theory of liability for aiding and abetting that that's relevant consideration i guess i'm struggling with by that's not the case well i think when you're statute of conviction encompasses aiding and abetting liability for instance and when a salver as where that the california that statu itself addressed so that was the crime of conviction that encompassed that but in the in ordinary case when you're just talking about whether the defendant was convicted of an offense you're equally convicted regardless of the theory of liability like there's nothing that base analysis did the defendant actually do everything or did he simply aid and abet in some sort of and that's what congress said we're getting away from we're talking about a conviction based on us i don't understand the point that so long as aiding and abetting make sure liable for the commission of the offense it's kind of all a red herring but but but it seems to me though that in terms of is an element but i think that's one of the things that the th circuit got wrong in both of your floor is because even under state law they say that no aiding and abetting is not an element it's not a means it's just a theory of liability you know the elements of the underlyin crime remain the same regardless of the theory of liability that led to that conviction a defendant who was convicted under an aiding and abetting liability theory is not less convicted he's convicted of the crime and the question is is the crime of conviction identified as like washington one of the five outliers it said no iowa just like washington here is not conceivably different than the federal standard but bowlen didn't even agree that the th circuit was right that that's the proper analysis bolen said well assuming that's the right framework we still find that aiding and abetting in iowa matches the federal standard so the court could do the same sort of thing here assuming that we have to reach the saving and abetting liability issue we see no daylight but i don't think it's correct that that's i think that that's just particular little differences information or where some of the tension in the language and say i mean that's the history of the category yes and the consequence in the th circuit is that no generic crime would ever qualify or no drug offense would ever qualify and once we get into a situation like that i think you've gone very far from congress intent where a defendant who committed these predicates in washington would not be subject to a higher sentence well a defendant who committed these same predicates in florida or or washington or you know in a state where the standards match would so i just think going down that road is itself problematic and if this court could light gemmell unlike hagan's in a published decision say we don't even have to go down that road that might give some clarity to the law but again if we do go down that road there's certainly no daylight between the washington see entered in the federal standard the th circuit i think overstated what was required by federal law in rosemont and under stated what washington required but i guess if i could also take another step back this only came up in a motion for reconsideration so the only question is did the district court abuse its discretion and not setting aside its order based on this th circuit non binding binding decision so in the context of reconsideration this is much easier case but the district court was wrong as a matter of law would be an abuse of discretion well when it talks about the law the matters of law it's not a change in in controlling authority it's just a non binding th circuit decision so it talks about its way here already but i mean it at the end of the day if if the district court heard as a matter of law then it would be it would automatically be an abuse of discretion write well rule sixty one dollars it talks about it talks about clear obviously not it's like so if you had a change in controlling law if there be a florist came from the th circuit i would agree but when you have issues that's created a circuit split and where the th circuit is wrong even in its analysis i don't think that's the clear obvious error that would be correctable on a motion for reconsideration so i think this is actually a fairly easy case there wasn't an abuse of discretion and denying reconsideration based on this new legal theory that had been presented that relied on a nine by non binding and persuasive th circuit case but it's actually a fascinating issue whether aiding and abetting liability should come into play i think the answer to that is no but even if it does come into play washington standard and the federal standard are a categorical match and we have this that this same problem arises in a little different way her lawyer this week right makes the act of the accomplice throws of the principle as a matter of law which so i think that's the basis by which sort of aiding and abetting falls out of the equation because because of that theory of liability there not a lesser culpability they're both convicted of that crime so i think for instance the easiest way to solve the boston case that's true in as a matter of florida law and colin controls i think that's right i think i think that and w the supreme court said that's basically true across the board they identified you know almost all steves i'm not aware of any states that haven't obliterated those common law distinctions between accessories before the fact and you know the person who's presenter the person who aids you know without being present and to simply create these these all these accomplices are liable as principles and so i think really at that point unless the statute of conviction expressly is talking about something special about it and abetting liability as we hadn't i think normally you just say he's convicted of this offense this offense counts therefore under the statute a conviction if it's a categorical match the analysis  done thank you washington proscribes accomplice liability in the mens rea a is knowledge that's clear in the statute the federal statute says willful common law common sense three hundred years these culpability these mens rea requirements as very distinct and very different even closely reading crone and rosamond and your honor on review of this particular issue i think is disappointing the government suggest somehow that you can't fully review this issue just so you know the notice of appeal we feel was put on this issue this issue was fully developed before the district court judge in fact the parties brief this issue the judge made substantive rulings on this issue we brief this issue this issue in this case hasn't anyone tell you my own perspective i can only speak for myself about this but it seems to me so long is your client argued in the district court that this is not an aggravated felony then you have preserved that issue and you can make any argument thank you to a port of that issue on appeal and that individual arguments are not forfeited regardless of whether they were made and here on that issue is what matters and the issue to me it seems and it can only speak for myself and is clear reviews de novo you want to move in on the there  another crime the washington can prosecute that we haven't discussed and that is administering again our legal imagination and all off i mean that the federal standard includes that not according to honor we did not read it that way it is a complicated staci but our read of it is that it minister ring is prosecutable by washington but not by the us when you read the statute about the federal definition of dispense i read that it uses the word administering could be prosecuted in the state there's two reasons not only the ramos case the statutory language here we say on code ability for an accomplice is clear and establishes itself the possibility probability prosecution but this case is a little different because we allege in the complaint that we would provide proofs and is an issue for trial at this point so your honor in  summary mr bork sakis wishes to have a trial in front of the district court in order to show that he has five years of good more power if this court finds that he was convicted of an aggravated felony which is a penalty statute and should be strictly construed he will not have such an opportunity it's not just that he cannot become a citizen of the united states aliens permanent resident aliens or deportable from the united states so the consequences are about as the stakes are about as high as eight as they get under under our our immigration laws and we would ask the court to police because that are our arguments the compas liability has a very different mens rea a because the statute itself says knowledge the federal statute says willfulness we all know the difference between knowledge and wilfulness and why these cases do are muddled and it confused me perhaps your honor was not confused by the read of redmond when i read justice alito dissent and read and rewrote and drill down to bailey and drill down in the black's law dictionary we find there is a very distinct body of law that says knowledge and w specific intent are not the same and therefore this is cannot be found to be an