wasn't an objection made to the recent court but that's correct it wasn't that made before the district court and the way i read the government's brief and which i can see it in my opening brief is that because it was not there was no objection in the district court case it really turns on new york's interpretation of the elements of the statute and new york as being as defined by new york the elements of the statute which is subsection  substance that's not on the federal schedule that's part of it it's also because the new york statute the elements are defined to not require proof of any particular type or amount of a controlled substance so therefore looking to at least culpable conduct that would include the substance as per this court's decisions in a published decision both in leo versus attorney general and salmond vs attorney general one of the elements of the statute are not the same when you're comparing a part predicate and a federal generic offense but the not the same and that language of the state statute encompasses on its face conduct which is outside which america condition there is no real estate probability increased to be done in the elements not the same isn't the difference it's the t a controlled substance they both have that and then where they differ is the type of substance that is correct but the dinero of the federal controlled substances definition is now or then new york  if i'm wrong but as i understand it for this particular subsection the type of substance is not an element of the crime it's a means by which the crime is committed big that's exactly right your honor and we're talking about subsection one in particular there were there are cases cited by  in this case the subsection one simply requires possession with intent to sell a controlled substance those controlled substances looking as we know we must to at least call bill conduct in which that element and the element is the possession of a controlled substance that encompasses conduct that falls outside the federal definition which is a controlled substance incorporate each controlled substances a separate crime it depends upon whether or not the new state law requires proof of that beyond a reasonable doubt or unanimity and new drug that's not the same statute and it's laws it is that segregates out of type and i don't know if that really helps you because i don't think you can say that the narcotic controlled substances in the schedule in new york are different than they can narcotics that on a federal schedule well the point is quit them to people of a controlled substance against their listing the elements without requiring any proof of a particular type of controlled substance and i understand why a court may be very reluctant as some justices on the supreme court have voiced there is reluctance to apply the categorical approach or even the modified have a and should step back to modify categorical approach at the i think everyone agrees simply allows a court to look to see what crime was committed not the manner in which that crime would happen and it carries a did it so that there's no legal imagination involved well if someone went to an attorney licensed practice on new york and said i want to sell as i do believe that mountainous abrogates blair and i believe that in fact blair is the issue is before this court and what may be embalmed hearing in the case of mark harris  i think it was and so it i do believe that mathis has changed the landscape and now it's quite clear that looking at penzance robbery statute it doesn't matter how it was understand your position can i because i don't know if you live the answer to this question but when you compare the certificate of disposition correct against the crimes charged in the indictment that are in the record this different statutes are cited in iraq and you fill in the blank well as you know the indictment of course would be an appropriate shephard document but there's no statute listed in the indictment identifying that there's no count identifying what we know is the statue of conviction to twenty point zero six but you're not disputing that was the stature of conviction are you i'm not ok but subsection one the united states curb appeal to nd circuit has held that this particular statute is not a controlled substance of fence as defined by four b one dollar b which is the definition at issue here for the reasons that i've put forth in my brief in the reasons we've discussed here which  mathes in its analysis of alternative elements and a step by step process through multiple subsections moreover this court in as recently an unpublished opinion called united states versus kim k has indicated that the analysis and blair is still viable and also there was a other decision of this court a presidential decision united states versus peoples where the cases like henderson and abbott and applies an analysis of alternative elements we think that when you look at the elements of a few twenty point six subsection one possession with intent to sell a controlled substance as defined by statute cording to the new york case law that references to the individual schedules of the new york drug regime just like the federal controlled substances act has  level the prosecution in the case does not specifically require proof of a type of controlled substance per se some of the case notes the commentary that accompanies the particular statute talks about an amendment were the new yorks a claim court the new york court of appeals had actually found that it was necessary to prove both knowledge of the type and quantity of controlled substance and that was later changed by statute there's no need to prove the quantity of knowledge of the quantity of controlled substance it would be our position the prosecutors in new york are going to have to prove a controlled substance is statutor with well the element of a controlled substance is statutorily defined fans out into alternative elements under the schedules that are cross referenced in the definition controlled listed in schedule twelve thousand three hundred and forty five other than marijuana and only deals with concentrated cannabis because marijuana is treated differently so but improving up this violation  and we're speaking of subsection one not the rest of us here that's correct if we are but by referring to the sale of a controlled substance it's necessarily relying on the definition in the related statute that talks about the other schedule in your argument i'm a sure that's that's that's that's right look at the words of the statute just the position of the self which seemed to be sufficient and i understand if the court has some reluctant reluctance to see that read the statute that way but if we follow the progression of mathis looking at the statute looking at the case law and if the court is not satisfied in determining whether or not this new york violation is within the generic definition of a controlled substance element of the offense in order for us to to look to take a peek i think you have to take a peek to to make sure that it isn't marijuana i mean if you're just looking at a naked reference on a certificate of conviction to treated differently in the definition of a controlled substance offense in section two hundred and twenty five of the new york penal code your position that it that we have to rule out we have to ensure that the substance is not one of the excluded substances under the new york city that is the not concentrated marijuana that's correct and the way to do that is to take the peek that map this a lab use and that this court is has apparently done in a henderson abbott in determining under the us using the realistic probability approach does it fly here should it be invoked if so is there a realistic probability that this substance would be would have been the subject of a prosecution under the subsection i don't i don't necessarily think the court has to go that route in looking at the realistic probability because if we think you've got it in the new york statute many of the same elements if not all of the same elements that you have in the controlled substance act equivalent and therefore you have a match your position is that drug type is an element i believe that you have to prove a controlled substance and it has to be a type prove i mean you can't prove it's tomato paste you have to prove it's a controlled substance on and the only way that we could tell that well let me let me try this way and that gets into the differences of certificates of disposition both certificates of disposition are the same they both talk about the sale of control of possession with intent to sell a controlled substance to the latter the later rather a certificate of disposition was cocaine why why w to find out exactly what documents show the controlled substance that this defendant was convicted of and the one document we did receive was the sentence an order commitment it would be the supplemental appendix page to which cites to twenty point zero six subsection one and then at the bottom it indicates type of drug or weapon and it's and it's clearly stated that it's cocaine and that you explain why that the indictment that's part of the record does not capture the crime of conviction in this this is my surmise such as it is the judge if it's this defendant had a lot of cases in the new york system they got consolidated for disposition i think that's clear by the fact that on the on the sentencing order of commitment there indicated that they should run concurrent with other docket numbers we think that there probably was some charge bargaining done and that the the final analysis is reflected in the sentence an order of commitment which we submit is a reliable judicial record of the kind it's been approved under the shepherd case and has been applied i think and i think that counts and case actually makes the nd circuit case actually makes reference to a certificate of conviction in this case i think we have one better than just the clerk's extract from the docket we actually have it not the same as a judgment of you know i don't there not a lot of prisoners a get committed unless they're actually sentence and a sentence usually we think reasonably involves a judgment and in this case it's the crimes indicated of the statutory preference the sentence and the type of drug and it's clearly a felony it was a minimum two years maximum four years so really we have enough we think from this reliable record which is sealed by the clerk of the court nancy t sunshine of kings county new york we think that's the kind of record that courts traditionally rely upon shepherd sanctioned this court is has found to be reliable in other cases that we cited in our brief to you would respond to your adversary's argument that in the briefs submitted in united states versus santos in new york it was a concession that the  here we have the benefit of this court's wisdom and guidance in other cases such as henderson and abbott and looking at different a similar yet different controlled substance regime we did contact our colleagues in the eastern district of new york it appeared as if there wasn't a full consideration by either the nd circuit in that in that townson case of the significance we thought of the different kinds of a drug conduct but we think that henriques if you're going to look at the nd circuit case law for guidance we think henryk is closer to the more than townson that was your position on realistic probability that probability but that would be our position in the st instance instance but the realistic probability analysis we think is a good backstop analysis just to say is this within the realm of a realistic probability and how would  be able to make that determination on the record we have and well us here i get to send it back to the district court to determine whether there's a realistic probability someone would be prosecuted for a violation of this subsection if the sale involved  tripping i can't give the court a formula for applying that beyond this case but on the facts of this particular case at this moment in time at the moment in time when mr sing is a mouthful but h c g possessed with intent to sell as a crime and in preparation for argument i simply put that in a word search in a new york state authorities and the only thing i came up with was about twelve medical civil medical malpractise cases apparently dealing with now practice related to this it care very fair to say that twenty to twenty six is totally indifferent to the i don't know if i would i would feel comfortable making that argument to a new york who are trying to sustain this with sufficiency of a conviction under the statute because i think it's only fair to the defendant that you have to prove that they knowingly through eight to prove up a class d felony which that is a seven year maximum felony under new york law you're going to have to meet that definition you're going to have to meet it with substantial you know be the way the statute is set up however this court you know is as it pointed out in henderson if we look to see was the substance taking the p and finding from the charging documents or reliable judicial what the substance was which we know and it's not disputed i'm not hearing any real dispute on a factual level that that mr singh was convicted of possession possessing cocaine with intent to sell it's we look to see do we have the same counterpart on the federal schedule this after all is not a case where he was convicted of of possessing with intent to sell h c g and if he was and it wasn't reflected in the reliable records and we had to book through sheppard documents and once we found that that would be a situation where we want to have a match so if there's a it's issued is it's important to look at the shepherd documents into a tally to ensure that the substance that issue was in fact federally exactly and you know in using the metaphor and player once the blinders are off we keep them october satisfied that we know we've got a match so your position would be we need to look at the four corners of that shepherd document to satisfy ourselves that the substance at issue would in fact be a federally prohibited substance we think that's a fair inquiry and we think it benefits the defendant because if it wasn't specified in a pre sentence report and it wasn't specified as to whether or not it was controlled substance you have a defendant who was convicted of possessing with intent to sell h c g it might get those points and qualify as a career offender we're as by looking at the shepherd documents the appropriate ones with with the of reliability accepted by this court and supreme court we do give some certainty to that to the sentencing process that we that this person has been convicted of a valid controlled substance offense for purposes  don't think it allows a deep dive and we're not advocating a deep dive here but we think that if you're not satisfied by matching the new york statute with the federal statute at that st stage peek that's that's pretty much what i mean that's what the supreme court said it's it sounds flippant in a way but that's exactly what i think we have to do in order to make sure that we're we're applying the categor time but what if let's pretend it was a circumstance where the crime the count of conviction was possession of a controlled substance and in new york the controlled substance is this particular drug correct right you the client then gets charged federally w the defense lawyer and the defendant want to tell the court hey that substance underlying my conviction would not be a federally controlled substance therefore it shouldn't be a matter of like wouldn't you would expect that someone would want to bring that to the court's attention i think it wouldn't pretend it wasn't cooked pretend your client had exactly the same conviction in words but the facts show it involved you see rather than cocaine you would presumably want to bring to the court's attention judge this isn't a qualifying offense because it it is predicated on a type of controlled substance that is not listed federally and therefore it cannot be a qualifying offense of course and a good defense lawyer would do that but so so it's also irrelevant if the element doesn't require or if the so then is so that a court would then be and dancing a defendant sentence based upon and because the words of the statute match even though it would never be cut nice it would never be qualified qualified that in that too bad that's the way it goes that can't be right can it be no and that's why this entire any conviction under the statute regardless of whether involved cocaine h do you see marijuana not it can never be a controlled substance offense for purposes guideline and the rd but that's only because it has an extra type of control is always does because the means by which it can be committed go beyond those that you know that are that are all offenses the means are again the type of controlled substance in this case is truly just a means by which the government may prove the element of a controlled substance and i would like to point out if i could have the courts indulgence that i was incorrect united states versus santas which is it merely an unpublished opinion but they do