morning honors may please the court jake rush from the federal public defender's office on behalf of the pellet francisco cantu is undisputed that mr cantu statute of conviction is categorically not categorically a serious drug offense under the c a because it applies to substances that are not federally controlled namely salvia and t f m p p the only issues before this court are divisibility and the reasonable with a realistic probability test st the statute  divisible only down to the three categories of drugs that carry different punishments and nd the realistic probability test does not apply because the state statute expressly includes the means that are overbro of two counts of possession with intent to distribute two different controlled substances in the same package that's because possession with intent to distribute is a single offense under section two dash for a one  elements of each count were the same the court said so if the elements of possession with intent to distribute cocaine and possession with intent to distribute a different controlled substance they are p c p are the same that clearly indicates that cocaine and p c p constitute one element that is they are means of satisfying single elements not that every controlled substance is itself a separate element as the government conten as a matter state law you're saying that they're means not elements right and so right as a matter of state law oklahoma considers the drug to be a means of satisfying element you agree that under federal law it would think the federal court would not confirm a conviction without you it being clear that the jury range is an element so is that that's a bit confusing here because the president relying on it is wrong under federal it's well it's wrong only to the extent that that the two drugs that two separate drugs possessed are punished differently so there's so watkins holding that two drugs that are punished the same would constitute a single element that that still holds true so a  later oklahoma state cases how they apply a printer so in chadwell the court which was supposed to printing the o c a said that lewd acts with a child constitutes a single offense notwithstanding that there are two different punishments that is where there's one punishment where there's a minor under sixteen dollars and one dollar pun and an enhancement where there are the minor victims it is under twelve so way that oklahoma courts reconcile their state case law with a trendy is to say that ok it still constitutes a single offense but we recognize that under pressure there are now multiple sentencing element so apprentice as opposed to walk ins can be modified to say that ok section two dash for one is still a single offense however where the drugs do carry different offensive conviction is that middle tier other schedule one through four drugs that's what he was convicted of and that is the section that is categorically overbroad because it includes non federally controlled substances of  support the visibility d down to the type of rog given that the instructions contemplate the specific big drug being part of the instruction drug not very much that and any support for that would be pretty minimal as this court found united states versus to erase their language seemed to even more strongly support the idea  that there were multiple elements here the model jury instruction just says that the rd element is the control dangerous substance of and then brackets insert you know the name of the substance into gear a instruction said select the th element that is supported by the evidence and into gear a this court said that you know that's not enough to provide the requisite certainty that it has to be shown in order to  supported by the evidence and they also just said that there was no indication that elements necessarily meant elements that like these were alternative elements stace could certainly with what i understand your your your argument what would the same point extend to if we were if we were to look at the charging document under your under your view of the visibility wouldn't when the charging document have to say something like the that's as far as the visibility goes why wouldn't the charging document just say that i mean it certainly could say that and that would be sufficient but the fact that it is spread here but it but here it says methamphetamine there doesn't that suggest that just the broader element so particularly here where you could specify the means and then just look up which category punishment it falls into look up that it is that you know it specifies methamphetamine we know that schedule two non narcotic controlled substance we can just look that up in the statute so for example if you know if a you know if an indictment said possession of you know rather than saying like possession of an unlawful weapon it could specify even if it's just means possession of an unlawful has still and isn't necessarily assume from that that pistol is an element as opposed to just a means were the where the charging documents are more helpful is the situation where they list multiple multiple alternatives because that indicates there's multiple alternatives listed and it would be a duplicitous indictment if you include multiple elements in a single count so we tend to know by looking the charging documents that if there's multiple alternatives listed then that suggests there's means but that's not to say if there's only one that it suggests it's an element that could just be the known means by which  defendant satisfied that so i think in this case we're just peeking at the shepherd documents and then also looking at the model jury instructions those might you know imply  an element but it certainly doesn't overcome a state law case saying that that the creates that statute is a single offense with the same set of elements and the structure of the statute which a pretty suggest creates that and in other cases courts consistently held the defendant need not cite a case a state case where the statute was applied in overbroad means where or in an override manner where the statute expressly includes those over implies to that conduct and this approach is consistent with at least four other circuits including the st circuit who in swaby versus yates which is court relied on united states versus teddies found that case to be persuasive  applied this in the same context or did not said the result list of probability does not apply to there was rhode island struck schedule which was expressly overbroad because it included drugs that were not federally control i understand the point you just made but do you have any evidence that any prosecutions ever have been brought in oklahoma relative to three nonfederal controlled substances i didn't find any cases that do i believe i cited in the reply but newspaper articles saying how this was that salvia in particular was a public health concern because apparently it became a viral sensation for teenagers to smoke salvia and post that on youtube and oklahoma i think i want to say as maybe ten years ago became one of the st states to control south so to the extent that it's you know totally unrealistic that that oklahoma would ever prosecute something like salvia is just absurd we know that that it that it's a law that was recently put on the books and it's certainly something that the that the state is concerned with pro eligibility is not materially different from the novo review because you look at the st step of plane air review which is error and if there is an error that means that there's an illegal sentence because in this case m serving the legal sentence which triggers per se reversible which is per se reversible they're undergoing plainness review of that opinion was in addressing whether it was clear the as it is here the question is whether it's whether it's clear that this was not criminalized and that the sentencing enhanced men so that the acts criminalize it says you know should be unlawful too and i'm paraphrasing here distribute a controlled substance or solicit a minor in the distribution of a controlled substance and that it provides penalties for those for those acts then there is a separate penalty enhancement where an adult solicits the use of a minor so in order just for that penalty enhancement to apply argu said the section two for two days for a one defines one offense what watkins also said is that different punishment levels are provided for different drugs it went on just a few sentences later to explain the punishment it's based rather strange way to record to write that you are well you are as far as lewis that's exactly what the court said when it defined the element for trafficking it said a substance listed in subsection a and a quantity  subsection see that is how it defined the element for trafficking purposes but in what lewis was referring to walk ins it said cocaine and this is further amplified is the court pointed out by the uniform jury instructions which specifically say for distribution the state has to prove the rd element quote the controlled dangerous substance of name of substance it doesn't say then had slashes with print the seeds like the court hadn't tidied it doesn't trailer residences as well as building residences made it unclear sufficiently unclear for mathis purposes but it ended up reaching even with the slashes the documents air about where the uniform jury instructions that i would submit they probably think that in the context of decisions by state courts because while they were drafted by a committee there approved in a published i personally i've been a proponent of slashes do not necessarily mean that something or means but this court has concluded that they do counsel in favor of saying that they're mean my point here is that based on that precedent the court of criminal appeals in the uniformed instruction committee has shown that they can use lashes even with long phrases if they want to but here instead of using slashes with long  because it's because she was a pretty good district court well your honor i can tell you if for no other reason than personal experience that tidies the government conceded that there wasn't a visibility and this court looked i believe it could well st of all of the court can and i would submit should address whether or not there was there but beyond that to the plainness aspect this court has repeatedly both pre and post mathis said that section two dash for one offenses can qualify in cases like timothy johnson the way than the man this court addressed section two ducks for one i think perhaps the most important case was decided december th twenty is an unpublished decision addressing if it was not awarded to that fact but i would say in this case a difference and maybe it was the level of briefing that caused the panel not to publish the opinion well you are but the question of the reason for playing air is to give the district court the opportunity to correct an error had the district court presented this or have the district court in print presented this issue perhaps it would have given it at least would have given analysis and its views on th irrelevant that the issue that was presented in your ire was and i would submit if there was a change in the law and this would probably post places are more squarely and where rhapsodies was because because we had cocaine we had p c p those two clearly could not be one offense at least for purposes of federal double jeopardy and so  instructions there's also something that was not touched on today the oklahoma methamphetamine registry act which includes criminal provisions and which singles out a specific type of drug that's unfed and or an element of a future  is not determined by it's not determined by the jury it's not determined by the court it's determined essentially as a ministerial matter by the clerk of court and the only way the sort of court would be aware of that is by the elements of the expired i have a question for you