good morning ma'am please the court i'm carol behalf of the pelham mr furlow he has raised issues related to whether certain convictions are a c c and career offender predicates in particular he has challenged whether south carolina could forty four dash fifty three dash three seventy five qualifies and the key issue is whether that's a divisible statute while the supreme court has provided  guidelines for what to look at to determine whether a statute is divisible the most compelling evidence in this case is the way south carolina prosecutors have pled drug indictment furloughs indictment which is on in the joint appendix it's page seventy four lists not only all of the alternatives that are in the statute three seventy five but it adds terms from both of south carolina's trafficking statutes one of which is under another subsection of three seventy five it includes the language cell and it uses the language cultivate which is found in forty four dash fifty three dash three seventy eight which is the general drug uncommon for south carolina indictments for these particular drug offenses to be listed in that way there are numerous alternatives  dramatically different they're often charged differently in south carolina all of those terms are very often plaid in the indictment and the best evidence i have that south carolina recognizes duplicity that it would be unconstitutional to charge south carolina defendants including mr farlow in this way and result in a conviction i'm not challenging that his particular conviction or manufacturing  distribution purchasing i just find it very difficult to say that those are one in the same offense and i understand that and i to be very honest with you i don't think that the south carolina cases are very helpful in that regard but i do think seem to me those those verbs have different elements and whether you know you where you when you're submitting a charge of manufacturing or distribution that's going to be charged to the jury were different elements than a charge of simply purchase and it's not he's not just means i don't see him manufacturing in purchasing can be just different means of committing a particular offense to me they have different crimes and they have different elements and they're going to be even if they're not charged separate they're going to be would be in different counts and they would be submitted to the jury with the elements particular to each well that's the problem they are submitted in different counts they're all listed and although for three seventy five b which is general drug statute on methamphetamine and cocaine doesn't doesn't have there's no state case that i can find on that that specifically or explicitly says whether there are means or elements however over because i'm having enough trouble i apologize i thought i thought i was answer and i apologize i in this case we have an opinion by one of our colleagues it's unpublished but that doesn't mean it's unpersuasive and judge keenan has written in this marshal case as says however we conclude that the statutes do not list alternative means of committing a single krom but instead set forth alternative elements constituting separate crimes the statute so therefore do visible subject to the  modified categorical approach now that's just canaan's opinion i don't get it it's unpublished but it still can be persuasive and it would be just  odd shortly after that panel had issued that opinion for us to come down with a contradictory result and and she goes on and she says south carolina juries typically are instructed to find one of the alternative elements listed in a statute beyond reasonable doubt and so her opinion is and really very little reason to to take issue with her with her reasoning as just set forth fair well i understand that the two of you have been on panels where admittedly threadbare and all those of them are quite thorough in this belongs in that latter category i understand that i have an uphill battle and i'm going to do my best to use the supreme court guidance and the south carolina law and address some of the cases in martial but what i will say is that the trafficking statute that reference three seventy five c does refer to manufacture deliver purchase bring into the state plus the aiding and abetting language and to south j letter clearly show that both of the trafficking statutes three seventy each and three seventy five c list means that's what those cases say they specifically call them means and i believe what i wrote in my response the term that harden case uses is they specifically say that quote may be accomplished by several means including conspiracy unquote so there is no doubt in south carolina based on the supreme court law that state that the trafficking statutes that list all of those alternatives refer to them as mean as they say that trafficking can be committed by conspiracy trafficking can be committed by manufacturing so i 'm not sure what bearing that has upon the to kill of question here we have a fist circuit case that says a statute might this is divisible and  are also references to other south and in judge canaan's opinion to other south carolina cases watson being the chief wine which indicates that it would be divisible but just as a matter of common sense  it's hard for me to say that a purchasing drugs is the same offense as manufacturing them they are absolutely of different orders of manufacturing is right now why is one not a c c a and the and the sentencing guidelines is not a qualifying offense and why is the other a qualifying  and the reason they're differentiated is because they're different offenses of a vastly different order of magnitude in terms of what congress wanted it wanted to punish serious drug offenses seriously and menu factures and distributing drugs is a serious drug offense purchasing drugs is not as serious a drug offense and and when one looks at what congress would want it would want to punish the serious ones and leave the non serious ones to be not qualify predicate offenses that makes breaking it out that way makes all the difference in the world in terms of the objectives of what these provisions were set up through coppers well i understand that that would help push the goals of congress for the a c c a career offender and i understand that most states would defy them out but what i'm trying to point the the if you put all the first four or five alternatives together as mains the guts a lot of federal statutes that look something like that do and then you get into aiding and abetting the federal code as it  and at least those you've got a substantive offenses aiding and abetting may be treated differently conspiracies dept only is a different offense in the way we have a divisible statute you have a much better chance of taking the blindness out of a categorical approach and finding out what somebody actually did back and solving the sharper documents such as the mine and then i'm so rather than lumping all these offenses together we can cite is this and the vidual are guilty of a serious offense or as a more knock us one and you look at the colloquy in this case and he you know the justice of it all is that the predicate offense did not simply relate to purchasing it related to the offenses that are covered and that that leads us divisibility in this case like i said the most compelling thing is the fact that indictment after indictment after indictment in even in some of the unpublished cases that have come out of this court list all of these alternatives are at least doesn't and that's why i refer to the trafficking jury instructions and the trafficking cases because they refer to them as means and they say they call it trafficking by conspiracy or trafficking by just remission i do understand thank you that's a little thank you thank you i don't disagree that it's hard to get to wrap your head around what south carolina has said or how it how it works correct how it could possibly work thank  the statute at hand here three seventy five b is identical to three seventy a except for the fact three seventy five b deals with nothing fan methamphetamine and crack cocaine so for all intensive purposes those two statutes are are the same and if you look at two particular cases the brown case and the watson case it is clear that these are separate offenses and could there be some i don't want to use the word supreme court has said so it watson is probably the clearest example of what watson is a  so here's the thing once you start down the list in the end they say distribution is peewit is i mean the whole problem here is that they stuck purchasing in right otherwise we're not here and so they say purchasing is separate and  would a separate and then of course they talk about that manufacturing is separate there is no doubt that if you want to you can cherry pick out some assistant solicitor in some of the forty six counties in south carolina that charge in a way that isn't isn't precise as we'd like in federal court but you think you know you're you have a previous well thought out opinion of the circuit in the marshall case you do which goes into great length saying that this is we have the south carolina court in watson saying it's divisible we have the fifth circuit saying in a very similar context that is divisible oh we have the fact that congress wanted to punish serious drug offenses and make them qualifying and not punish more marginal and more less serious they didn't want those to qualify and effectuate that congressional purpose plus the fact it's easier to implement because the way in which these cases are going to be charged are you not going to if you're going to charge manufacturing a manufacturing cow different from a purchase and cow you often are in fact it's funny you bring that up yesterday as i was leavin you know i get we're getting a lot of these because there's a number of cases being held until this issue gets resolved in this court and it was a manufacturing and it just was a straight manufacture and that's all that was alleged now in this case i just can't imagine it creating a manufacturer of a purchase of to me a manufacturer again times is evil well and as a matter of fact in the four forty five statute which is the proximity to a school they actually break out the fact that purchasing is a misdemeanor and has a different punishment in the more forty five statute so the the bottom line is if you look at watson and you look at brown brown actually involved three seventy five b it is clear that these are separate offenses and the way the statute is constructed there's no reason that if you've named four out of the five in the last as separate offenses that somehow that means that there is and it has to be  we divided up how many are there you haven't answered a urt teen eighteen or twenty three i think you wait yeah now do it do they all get charged in court i don't think so in fact you know it doesn't appear that people a get get charged with mere purchase under the statute i've never seen that ever street or eighteen or twenty three just in three seventy five that those are options that could be yeah right and what i would say that is that is that you is if you look at brown and you look at watson what you see is this gets and this goes to her to push the argument it gets cleaned up either at the police colloquy in this case the judge says charged with distribution you're pleading guilty to distribution indictment can mess it up and in a lot of that you put that instruction but you that you should be changing the order and i am and i will tell you that if you were to look at some of the in the state prosecutors have a much higher volume of work and they the precision with which they may charge is not always quite the same as the federal courts and that's just a reality duplicity and i looked at the case she pointed us to state versus samuels and i think it is an instance where you don't want to get charged with if you have more than one crime that you're charged with and you don't at some point know either the jury doesn't get instructed or they don't figure out what you mean you can duplications and i think deep duplication i think of it only as a problem under state law best i can tell if you get cases sometimes they kind of start toggling back and forth and so it's it's not precise by any means it's also not correct but that's ok well and if she and if  she you know if mr furlow we wanted to attack his claim as being duplicitous it's not to come up here but it's to go back and say hey you're not following what the state supreme court says you've got to do under watson or under brown so because i wanted to point out that this is what happens in south carolina i attached as an addendum to my brief mr watson the case that the marshall case relies on his indictment and his indictment includes all that language in kook looting the attempt to conspire manufacture distribute and included the purchase language so as mr daley said he hasn't seen just a pure purchasing indictment but that the reason is because the purchase language is always included with everything else and whether we can all see that manufacture would be different than purchase the distribution the fact of the matter is if this is are not all in all ready for want of i think what they do correct and then if they're convicted of