naturalization or the last eight years the supreme court has are three occasions steadily limited how far a state statute can go in order to be the basis for possession can't be a basis for aggravated felony terminations and most recently in crieff the supreme court found that possession with intent to distribute also cannot be the basis for an aggravated felony terminations the supreme court found that these are all low level marijuana offenses that the what about the sale didn't moncrief explicitly carve out sale conviction is necessarily for conduct punishable as a felony under the c s a so if it's sale at least under moncrief it's a felony under the c s a and would seem to be a categorical mash we are not asking the court to use that subdivision for as the basis for finding a mismatch between state and federal law what we're asking the court to do in this case is take a short step from our crees to find that possession for sale also renumeration as the dividing line what's the support for us picking a different dividing line and deciding that renumeration isn't a disqualifier the aggravated felony germination has two different problems the first is  trafficking and the second is a drug trafficking crime under the illicit trafficking from moncrief does apply it finds that there's a low level drug offense do s the entire scheme of the controlled substances act and under something under a forty one a for simple possession that is for remuneration cannot qualify as less than a felony it would be found the distinction that we're drawing for the drug trafficking crime front is different it relates to third party sales we have an argument that the california scheme covers more third party involvement in sale of marijuana than does the federal scheme the federal scheme covers attempt and conspiracy the california scheme covers aiding promoting encouraging possession to sell marijuana that is to say both statutes reach into third parties well i mean in one is over as the supreme court dealt with aiding and abetting and seem to me to say that that's just the same as a principle these days it is that the line you're trying to draw aiding abetting is what takes the california statute out of being a categorical match yes yes why isn't when does alvarez fail to that argument time perhaps when aiding and abetting was treated differently but that time is no longer now and so that that somebody may be reachable for aiding and abetting does not seem to me to take take that person out from being categorical match with that the principle crime argument is that it does the california statute doesn't just cover aiding and abetting jury instruction three point zero one also extends to promoting and encouraging conduct that isn't aiding and abetting under federal law the difference can be appreciated from comparing two cases which we point to in o backyard without further evidence of knowledge without further evidence of intent the inference was drawn just from the presence of the substance by contrast  moncrief doesn't serve to create a blanket exemption for possession for sale possession for sale also however does cover the types of low level crimes that the supreme court was concerned with were drawing different distinction here however it's also one that points to a mismatch between federal and state law a mismatch as to the reach to third party third party involvement when it comes to the eleven three five one conviction the eleven three five one conviction was under the modified categorical approach that case brings to the court's attention us against if you including your honor where i suspect she's well aware that back and it presented no reasoning for why the doll didn't expressly apply so there weren't twelve jurors to take judges on the court now that those numbers can't be taken to the bank but the court had an opportunity to rehear cannot biking and bonk and it didn't is there any reason that we're allowed to ignore it because we decide we don't like it and lot of judges didn't like it it's not presidential whether it goes in bank or whether there's a dissent from denial my assumption was that twenty one judges weren't paying as close attention to the issue it does seems that  the modified categorical approach was further reaffirmed in the scamps and the approach of the dissent from the rehearing in the ban t was for the reaffirmed in descanso where justice kennedy's concurrence said that certain facts in the documents approved for judicial examination under the modified categorical approach may go uncontested much please the court i'm susan green for the attorney general and first i want to point out that the argument in this case seems strange shifted significantly after my twenty eight j letter that pointed out this court's decision  crieff that convictions under california health and safety code eleven three five nine were still categorical aggravated felonies so i still think that that case is very strong that nails  well it was it was preexisting it was also and i'm i publish cases but the more it didn't more general principle that possession of marijuana for intent to sell and it is an aggravated felony is a stablished in suggesting that this statute might be applied to somebody who's involvement was perhaps more peripheral yeah well i mean first of all i said when it's out arrests particularly interchange the argument that california aiding and apples and oranges the normal case was the case for there was a landowner who there were marijuana gardens on her property there was a hose running from her mobile home to the garden there's all kinds of her new equipment and the argument was bat wall and to have was there ad showing that she had committed the act of aiding and abetting as well as having knowledge of the jury found she had knowledge that somebody was growing marijuana on her property because there were you know of six month old marijuana plants and the court said the special fact that she's a landowner and she's permitting somebody to use her land is an act in aiding and abetting so that's more was about that action that's required for aiding and abetting were just sleep it was about the other part of aiding and abetting which is about what you have to prove to prove gnowledge of the underlying crime so that's not a useful  cases batt i would say that there's nothing remarkable in all that would suggest that california has some kind of unusual and abetting doctrine so it's simply says that letting somebody to commit a crime can be aiding and abetting and and and so that i would think would nail down the that the conviction for possession of marijuana for complaint refers to the drug in issue and the minutes or the abstract of judgment referred to that count of the complaints that connects the dots and shows that  between the complaint and their guilty plea the complaint referred to taking and driving the vehicle towards the guilty plea only referred to driving so that looks like there was a mismatch and  either to the modified categorical approach or as an admission it's not relevant to the modified categorical approach because it's not one of the conviction documents those are not it's not a conviction document the admission is not relevant for the immigration authorities  rules themselves because they didn't have a valid notice to appear the notice to appear didn't identify alive and three five one which is specifically required by the stat that by the the code congress requires the notice to appear for due process reasons to specify the code provision under which a petition or service time is being deported this notice to appear did not so there's no pleading admission that fails and it's not part of