the first is number seventeen dash twenty three eighty four he looks to be attorney general mr gangling and mr pennington vi new crimes code is not a match with either of the generic offenses put forth by the government and that's because those offenses require the involvement of a controlled substance and a conviction under seventy five twelve does not underlying felony under the pennsylvania drug act it still is overly broad and doesn't deserve application of the modify categorical approach and that's pursuant to this court's case in brown two thousand and fourteen and i think and importantly the text of seventy five twelve does not expressly list all of the underlying felony is that the government claims constitutes alternative elements in this case and that's important  future well it lists too broad a number that's true those statutes contain hundreds of different felonies here but it's important here because controlling law holds that if a statute does not expressly list the alleged alternative elements then the jury may not agree on those all alternative elements and they are not in fact alternative elements so what this plea this mystery to me punishable what is the crime is this right so the crime is criminal use of a communication facility that has three elements that is use of a communication facilities like a phone to facilitate a felony and the occurrence the statute does not expressly list further alternative elements or items and those in fact are not alternative elements and if the court will allow me out just briefly give you four cases that make this point the supreme court in the scamps in two thousand and thirteen gave the example of a statute of conviction that required the use of a quote weapon but because the statute did not express it that means the could to use a weapon right so because it so we did use the term weapon but because the statute did not expressly give all the different types of examples that would qualify as a weapon the jury was not required to agree on the specific type of weapon and there were not alternative elements in the case and then further in map this in two thousand and sixteen the court gave the example of a statute that require unlawful entry into a quote premises but because the statute did not express the list all the different premises that would qualify the jury was not required to agree on the specific type of privacy's and or not alternative elements of the case and then i think most importantly is this court's decision in brown from two thousand and fourteen where the statute of conviction involved a quote crime of violence but because the statute did not expressly list all the different types of crime of violence the jury was not required to agree on the specific crime of violence and they were not alternative elements in the case now the government stakes its clase its case on a case called seeing from two thousand and thirteen s to sixteen in this court which dealt with a statutory term controlled substance and this court held that all the different types of controlled substances were alternative elements in that case but it is very important that the statute of penalty is always the same and so at bottom we have a rule that something is an alternative element only if it is expressed legal listed in the statute i'm less we have a situation like saying in which that particular something changes the range of that were the case this would be a very different matter in fact we wouldn't even be here i think the government would be right if all of of these different specific felonies were listed in the statute we would have a divisible statute with many different alternative elements expressed language of the statute i think the record of conviction here is important and we're allowed to look at the record of conviction for the sole and limited purpose of determining what are elements that whatever means and when we look here we see that the government didn't highlight one specific underlying felony to the exclusion of all others as you would expect it to do if those were alternative elements in the case and i think the original charging document doesn't provide us any guidance because seventy five twelve wasn't in the original charging document it wasn't until the plea hearing that the state prosecution added this amended charge of seventy five twelve and then the prosecutor and i'm sorry your honor i think all of your points what do you make of the of the jury instruction here does that is that an indication that pennsylvania law treats this as the particular offense is an element i don't think it does your honor i think with those particular model jury instructions it is nothing that prohibits the government from putting forth more than one underlying felony for the jury to consider and when it does that a jury need not agree on the identity of a specific felony it just needs to agree more generally that a qualifying felony has occurred and i think that's how this court treated very analogous model jury instructions for burglary in the steiner case from i believe that's two thousand and seventeen where instead of a crime as in this situation there was the word location and brackets and the court held that there were not alternative elements with that particular crime and those particular model jury instructions and also point to the second circuit's decision and harben which is a very analogous case and involves the term controlled substance in bracket the court held that there's nothing that perhaps the prosecution for putting forth more than one controlled substance in the jury considering more than one controlled substance and that's they were not alternative elements in that case and i think when we look what are the elements of criminal use of a communication facility and this is on page thirty two and thirty three of our opening brief the prosecutor says specifically in this case the factual basis for the pally the court says no the elements prosecutor oh would be that they use criminal passivity as which under the crimes code is a communication facility and utilizing that communication facility to arrange some sort of criminal some sort of crime and the fact that a crime  felony had occurred wet jury would have to be instructed as to what a qualified felony is in i guess the greed of the evidence that's right the jury would be instructed that a qualifying felony  would be under either of these two statutes the prosecution could put for more than one underlying felony that would be possible now the jury would not have to all agree on whether it was distribution of that the categorical approach doesn't apply to determining whether a conviction fits into a law or relating to a controlled substance under two thirty seventy two b one right is that still good lol i submit that it's not just that aspect of approach must be used in that circumstance and then a year later this court i should say in an n p o called to peer by judge or struck acknowledge this tension in what had happened  and its abrogation of rojas in that regard in that particular case the board of immigration appeals hadn't yet had not for to need to consider the change in the law and so it was remanded i submit to this court that the board of immigration the same as with the aggravated felony analysis we see that there is there is not a match in that regard i think to see that my time is almost up i would ask that the court to grant th yes we're fine going back taking a large part of the opening or even was focused on the lack of alternate punishments for the various felonies underline this criminal use of a communication correct but just jump to language that is not this recognized isn't required just by the statute divisible what the court is looking for is how the pennsylvania cords treat the elements of the statute of conviction and the pennsylvania courts specifically hold it up prosecutor can't just walk into a corner and present the facts and say ok jury if you find that any felony occurred through the use of the telephone or any other communication device you can find the defend guilty rather a prosecutor has to prove a specific underlying felony beyond a reasonable doubt that makes the specific underlying felony element of the crime and that makes the sense you divisible and the courts in limit on the offense because it has to be proven beyond a reasonable doubt so the only way this court can apply a categorical approach is to know what that specific under like delany it and i would agree that if the record of conviction didn't identify right we still have to compare the elements of this crime to pennsylvania courts tell us that the use of a communication device is only one element that the prosecutor has to prove beyond a reasonable doubt they also can't prove this specific i think i think you are right that it doesn't have to be a different kind of i think you're also right that it don't have to have expressed a trunk of language though it's commonly there and very helpful but what pennsylvania attorney actually establishes that the jury must brief all right but and you're not disputing here that the list of controlled substances are different but pennsylvania law allows convictions for non control of the none of that's in dispute here you have to have this data to be fully divisible in order for particular controlled substance of this not just a controlled substance and also that within the particular controlled substance offense is the particular controlled substance and i don't know that you persuade me on either the side authorities to deal with both of those pennsylvania superior court decision and i don't think it confronted this issue it said the underlying felony occurred but it didn't really turn on this issue it's just laying out that the underlying  felony is in elements and only then can you identify the specific in a line felony as one thirteen thirty sing doesn't do it doesn't do it for you because it's in saying we actually had differing punishment here we don't have different argument but what is under a separate subsection in the controlled substance schedule ok so there are two and if it's not that it was in a separate subsection of the controlled substance schedule your r that's what the pennsylvania courts seem to indicate is dead because it has to be proven because a specific underlying felony has to be proven beyond reasonable doubt i would submit that the prosecutor can't just go in and say ok here's the facts all you have to do is find that he's the fellow to do any bellamy i would say that the prosecutor according to these pennsylvania cases would have to prove beyond a reasonable doubt that mr time the case for conspiracy general conspiracy statutes you know the range of penalties is the same when you're convicted for conspiracy no matter what the conspiracy to do was  to the federal conspiracy statute the range of penalties to be the same matter whether he conspired to embezzle or conspire to commit wire fraud so i would say that even those conspiracy statutes would be divisible because you have to look to l offensive use of the communications that you're there elements of the specific underlying felony in this case so most of the pennsylvania cases deal with the use of computers  maybe we can start with where we've just left off is what was said if anything with respect to controlled substances in treating before the is that enough is enough because under this court's precedents the b i's consideration of the issue mean be a labrat for the issue to be viable quote an initial in plain statement regarding its agreement with the i g s conclusion is su comes from lynn and another case from this court ramirez from two thousand and fifteen it's a second part of the i as consideration mr heloc satisfy the liberal standard that goes for per se in the parties in immigration cases here  he explicitly requested not to be consider his brief liberal manner because he was a pro se party he asked that his removal order be vacated in its entirety which encompasses this argument and presumably that's why the b i a found the need to address this argument when it did so if i can the opposing counsel made some remarks regarding henderson i think henderson fits simply in the same category as saying here and that the statute there involved different punishments depending on the controlled substance involved and therefore it had to be alternative elements which is much different than the situation here and even if it's not the case even if we could get over that barrier we have a totally different statute here with as as it became apparent there are no pennsylvania thora he is saying that there are hundreds of different alternative elements when it comes to this particular issue also there is an alternative argument and that is even if this court were to find that mr hill wants conviction necessarily involve a controlled substance we still have a problem of the seventy five twelve not being a perfect match we have for the hypothetical the forty three right because of the c enter requirement there is for seventy five twelve need to act recklessly for eight forty three b you need to act