and that's because of the knowledge element is overbroad but i'm going to focus on the only contested element of the eight u s c section thirteen nine hundred sixty inquiry here which is section d three whether the entry of the removal order was fundamentally unfair and that inquiry has two parts a due process violation and prejudice so starting with the due process violation here section eleven three seventy nine point six has an overbroad knowledge element compared to the federal manufacturing provision in california a defendant needs to know the substances nature and character as a controlled substance under the california drugs digitals but the supreme court has said in mcfadden that for the federal manufacturing  you only need to know if the substance is listed on the federal drug schedules and the government the government argues that there is a mens rea requirement had has been established by the california supreme court i think one of the cases they  d is the from pronouncing it right there korea case so why doesn't that and the inquiry on this point because the korea case establishes that the mens rea after the california manufacturing offense is knowing the substance is listed on the broader california schedules whereas mcfadden says that for the federal manufacturing provision you have to know the substances listed on the narrower federal schedule so i think an example is helpful to illustrate the overbright here so  there are certain substances that only california criminalizes a federal law doesn't like cut and human chorionic gonadotropin or h c g so you could have a person for example who was told and they believe they were manufacturing h c g but they were in fact manufacturing methamphetamine which is prohibited under both california and federal law that person would be guilty of violating the california manufacturing statute because they actually manufactured a california drug and they believe they manufacture but isn't this the type of case where we have previously said that we can look to the underlying documents which specify here methamphetamine and that we require the defendant to to give us a real life example  of where the mens rea requirement wouldn't be part of the defendant's conviction because of the specification of methamphetamine in the documents to response to that your honor in terms of the drug type element yes the court can look to the documents but here we're arguing the overbroad comes from the knowledge element and the government has agreed with us that the knowledge element is in the visible because a jury in california doesn't need to unanimously agree on which particular controlled substance the defendant believed that he was manufacturing so the modified categorical approach is simply out of play under to camp for the knowledge element in terms of the realistic probability that the government is saying that mr lee gay hasn't shown there's actually two reasons that he has shown there's a realistic probability that california statute is overbroad the first as we've pointed to three sets of cases from the california courts of appeal holding that a defendant in california only needs to know the substance they're dealing with  some drug under california law so those cases are cited in the opening brief people versus rim arrow people versus guy and people versus geringer and those cases a stablish a realistic probability that all california requires is someone needs to know the drug is prohibited under california law they don't need to know specifically what drug they're dealing with or can so the government has also argued that there is no prejudice here because your client was not removed when he shouldn't have been because your client was also convicted of a different aggravated felony theft offense receiving stolen property which everyone agrees was not listed on the notice of removal what's your argument as to how your client can show prejudice from removed when he should not have been going on i don't think you dispute that that is a felony that could have been the basis for the removal but the reason is because this case is controlled and isn't all for is with united states versus i'll give you a flores and that case is  thirteen twenty six d appeal that involved an administrative removal just like mr lu case and in that case the question is whether the prior state conviction with an illicit trafficking aggravated felony this court held that it wasn't and then it  review so the court involved dimia didn't look to other potential bases of remove ability that weren't charged for example felt it was also an undocumented alien and could have been removed because he hadn't been admitted or paroled but this court didn't conduct that in korea just said because his prior conviction was an illicit trafficking aggravated felony and that prior conviction was the only fact alleged in the notice he was prejudiced i would also note that if this court were to accept the government's position it would run into problems with another case which is united states versus ochoa or ago and that was a case in which the parties agreed that the non citizen wasn't removable on the basis charged in the notice which was for having invalid entry the section thirteen twenty sixth emotion and by the time of the second removal order the parties had agreed that he was defacto and not longer a permanent resident but then the court also say that it was making the decision it would point to and just stepping back i think what the government is asking the court to do here for prejudiced purposes is to say you can you can consider any fact in the non citizens background regardless of whether the service has actually alleged that fact and find that the person was removable on some basis and there is no prejudice but this court has never gone down that route for that prejudice inquiry for section thirteen twenty sixty purposes it's always looked at whether the prior conviction has been alleged by the service in the charging document because otherwise there would be due process problems arising from notice and an opportunity to respond counsel you you also have an argument with regard to the geometric isomers of methamphetamine that's a factor and i'd ask you to address  why that argument isn't waived because as the government we're the government argues this is not a legal question it's a factual question it wasn't raised in the district court and it wasn't raised in your brief your opening brief so what's your position as to why given the what the government says is a factual dispute that isn't waived my response would be to point to the very similar decision that was united states versus hernandez which i submitted via twenty eight a letter and it was unpublished but it was  same procedural posture as mr lee caves miss hernandez raise the lawyer and so issue in supplemental briefing to this court on appeal she hadn't raised the lorenzo issue in just a court and the panel of this court and hernandez found there was no waiver for two reasons the first was because it was an alternative argument in support of mr hernandez is consistent claim from the beginning that her prior conviction was overbroad and the court said that under principles of claim preservation it's claims that are preserved and waves not arguments and so it found that she had preserved the argument i think the same analysis controls here and in the good reason is because the panel of commandos held that it would be a manifest injustice to uphold the conviction on the basis of a legally erroneous on a cite the court to that as well would it be a manifest injustice here if there was an alternative ground for removal the receiving stolen property conviction i mean what would be manifestly i'm just here about your client who would have been remov even if your argument is correct but for this being listed on the notice of removal what what's the manifest injustice of the manifest injustice well our position of course is that the court can consider the receipt of stolen property conviction i think proceedings it was not raised in the immigration proceedings your honor so so it wasn't this this wasn't charged in the notice of intent which was the charging document in the immigration case the only on page twenty of the excerpts of record the only prior conviction that was alleged as the basis for removal was the manufacturing conviction and then in district court when we raised a section thirteen twenty sixty motion and brought a collateral attack based on the criminal conviction the government also never raised please the court daniels if on they have the united states your honor the district court in this case correctly held that mr luke a rodriguez's conviction for the manufacture of methamphetamine met the definition of a drug trafficking crime because it punishable as a felony under the drug laws the specific over breath that's been identified here is exceedingly narrow in scope it is only if someone could be convicted of this offense while manufacturing what is actually methamphetamine believing it to be caught or believe it to be some sort of female growth hormone or one of the other narrow class of california perhaps of drugs that is broader than the  federal drug tables the problem with that argument is as we've argued is that the defense has not shown any real world cases where the california courts have applied the mens rea standard in this exceedingly narrow way that to say that someone is guilty of manufacturing methamphetamine even though they believe that it was the what they were actually making was it was one of these narrow class of other drugs so without that sort of real world case under joining us alvarez  that theoretical possibility of over breath is not enough to move this entire statute outside of the definition in addition this is not one of the cases where the sort of determine which drug was involved but as to the mens rea that's the statute is silent as to mens rea and that's only a question of how the courts actually apply the statute as opposed to anything that we can just see by comparing state versus the federal statutes on their face so much i have a question for you the parties have agreed that there's a divisible issue he in the under the drug statute right  k so why do we have to even get into the mentoring a once it's a divisible statute that's right this hasn't the ninth circuit held i mean why are we now looking at a second reason to make it a divisible statu i think the defense argument is that because the mens rea is an element of the offense and because they have sort of imagined this situation where someone could be convicted under state law with the mens rea element that doesn't match with the federal mens rea that that separate element separate and apart from that actual drug itself is what makes this overbroad but that's again a very narrow idea of here and it's one that if this court's going to move this entire statute outside of the federal definition they have to at least show a realistic probability of that mens rea event occurring and they have and what they've shown  shouldn't we do that why should we remain on this to the district court to make that determination which are a couple reasons first that when the court decided hernandez decision and lorenzo was still a published opinion this court has now d published its opinion in the did i mean someone somewhere making that factual determination i don't know in that case i presumably and as i mean this is a new argument and factually i guess it's an open question and i think your honor in this case there's some practical reasons why it wouldn't make sense for the court to sort of exercise that to go past the defendant's waiver and allow them a second bite at the apple this is  defendant who has already been released so why wouldn't he if it were remanded back and there's some argument that there is no difference that that it would resolve your problem because then there would be a conviction for methamphetamine right well i mean so why not remember back and let their factual determination be made for a first for a practical reason this defendant in this case is very old he was arrested over four years ago he's been released and deported to mexico almost three years ago and just from a prevention standpoint this the defendant had three separate thirteen twenty sixty hearings in front of the district court when he could have raised this over breath as to  new claim yes it is a theory of overbred but it's certainly one that the defendant could have made at the district court three years ago in thirteen twenty six d hearings and for that matter it's a claim that the defendant could have made when he was first deported based on this offense back in and two thousand and one so to not appeal your deportation to never raise it in the district court to not raise it in your opening brief and then you know years down the road to suddenly have you telling us the effect of that the publication means that if we're looking at plain error review it can't be plain error for the district court not to sue a sponte have dismissed the defendant's indictment in this case based on the holding of the  lorenzo when that's not even published law and the rule is clear that when there is no authority on the issue it can't be plain error for the district court not to have dismissed the indictment on these grounds when it was never raised below so even if it's not waived we would argue that on plane air review the district court did not air by not sort of catching this issue there's nothing that stopped the defendant from raising a bolo other than nobody having thought of it at that time that's right  i'm happy to answer any other questions the court might well i'm interested in your your response to counsel's argument that ninth circuit law prohibits us from looking at your alternative argument as to the receiving stolen property conviction that was not listed on the removal notice your honor i think the recent case that is squarely on point here was the martinez hernandez case and that was one where the notice to appear charged a crime of violence this court's case law changed so that it was no longer a crime of violence and then on appeal the court held that that er actually charged that's correct you know and like this case where for nine six a was not charged right but what the court made clear was that this is different from the sort of b i a context when we're on on direct a was charged and then today and perfect you could rely on it no matter how you characterize it which we all know some of these crimes can be characterized as a baited felonies crimes of violence and you know  you can characterize these crimes a theft offense in various ways and so as but as long as it's charged and everyone's on notice of what we're going to be litigating and what's the basis for the deportation i understand your honor and that  distinction from this case it was the notice to appear in that case did list the specific crime of violence statute but ultimately that the the question here is different from the sort of direct petition from a b i the question here in this narrow collateral attack realm that congress has created are thirteen twenty six d is was the defendant prejudiced would he have been deported did he have any possibility of avoiding deportation and the answer to that is no  bound from almost anything that had been previously litigated before and you can see what i'm thinking that the government would be able to bring in all sorts of and charged crimes other things that could have been that you lose necessarily i'm just saying that that's our law as of this point i understood your honor i think our only position is here when there's an actual sort of undisputed aggravated felony conviction that would eliminate any form of relief from from deportation and that that's enough in the final step of thirteen twenty sixty to say that there was no prejudice and even if you had gone in front of an immigration judge you would not have been able to avoid removal isn't it a plausibility issue i've got in other words is it plausible that he would have if this had happened not to have been deported and because of the prior connection was not plausible that he could have raised it and and not been deported right normally the possibility would be sort of evaluating his his ties to the united states is going to history that's one thing but the case law says that once you have an aggravated felony then it's a foregone conclusion so then essentially the you judge her down in response to your question about why are we even talking about the knowledge element it's because this court is how the just because one element of a statute may be overbroad but divisible so that you can go to categorical approach if another element is overbroad an indivisible then the statute as a whole is categorically overbroad and i would point the court to united states versus worley which stands for that proposition eight fifteen a third six  the government's position that we haven't pointed to any real world real world cases to establish over a breath there are three cases in our opening brief from california guy derringer and romero that all show this over breath that in california you only need to know that you're manufacturing some california controlled substance and lastly with with the prejudice i would just say to the court that if this court were to consider the receipt of stolen property conviction even though it wasn't included