substance is an alternative element because the jury was never required to find that element since is no law in newtown why shouldn't we have the supreme court what the law is would be well we could your honor but i think alternative elements and not alternative means and so in other words only if we have evidence of the jurors had unanimously agreed to we know that they necessarily convict as a person of of the particular controlled substance versus an overbroad or some of the staff you and that's that's important because without unanimity required when we go to the next step of modified approach we're just guessing about what he would necessarily convict about and that's a categorical approach is meant to i think in my view that under the the prosecutor's covered charge prove that sense because that controls the punishment so how do you address that point well i have two responses your honor the first is that there's nothing to show that utah prosecutors are actually complying with the requirement in a pretty in the lead so the government has cited no you talk a lot of that's actually how they charge the staff you but the second point is that the punishment turns on the schedule that the controlled substance is listed in and so a prosecutor could charge distribution of a controlled substance with an schedule two and still advise the punishment and that's and get us any further because there's a number of substances in schedule two that are not listed in the c s a and i'm probably going to mispronounce these a turned if mean i think it doesn't matter that the punishment differs depending on the type of substance charged well again i think that the punishment matters the pending on the schedule that the substance was listed in it's not necessarily the substance  charged and because we don't know that the jury had to select the particular substance out of schedule two the way that the categorical approach works is that we're looking at what he would necessarily convicted of and so what the supreme court is because we're looking at what someone was necessarily convicted of we must presume that the conviction resting upon nothing more than the least of the acts criminalized and then determine whether even those acts are encompassed by the generic federal offense and so if we do that here we look at whether the least some of those substances that i mentioned that i mispronounce whether those meet the c s a and they don't and so because we don't know necessarily that the jury had to select which of those either qualifying or non non qualifying substances were at issue in his conviction and we never know whether he's necessarily been convicted of that offense and so when we're looking at when we're sort of hearing through that presumption and the notion that we're looking at what he's necessarily been convicted of and we carry that through the divisibility analysis i think that's why the courts and when that rendon only when the state requires jury unanimity do we know what he's necessarily been convicted of because otherwise we're guessing that the jury selected the substance of the jury select substance we think we know but even when we go to the modified documents it's still a guess because we don't know that the jury had to find that and so therefore we don't know the jury has to find i'm sorry we don't know that that's an internal alternative element because there's nothing to show must be submitted to a jury in proof beyond reasonable doubt in this case the utah statute as has already been observed by your honor involved will increase based on the nature of the schedule the substance we wou follow the approach of the third circuit listed of the abbot case which we did have in our brief and also it was before the district court in this matter besides the fact that the united states has shown that the statute is divisible we recognize we all looked to see if there were any jury instructions we all looked to see if we could find any case on the subject and we were unable to do so however this court in pincher a young call i believe it is seven fifty four f thirty seven forty six the california statute and to the utah statute i'd also like to point out to the court that this appeal was filed on two different bases one was the administrative removal which very much turns on whether or not this court finds that the drug stash it was divisible and therefore not related felony but also there was a two thousand and eight removal from an immigration judge and i wanted to point out to the court that in preparation for the oral argument we looked back at the various documents in that particular case there was no reference in the notice to appear about the aggravated felony and other words that the defendant had been removed entirely because he had entered without inspection that's very important here because the argument was raised in the appellant's brief that the defendant had been up was entitled to be advised of his right or preclusion voluntary departure and there's a difference in the law one of my more learned colleagues pointed this out to me that there's a difference in proving what the it is actually raised in the briefs your honor because the argument was made by the appellant that the that he was entitled to be advised of post i'm sorry pre conclusion voluntary departure proposition that an alien who was or wasn't informed on avenues of relief must be advised of relief that was available at the time my point is in two thousand and eight this was pre the camp it was pre the arguments about the visibility the statute of which the the appellant in this case was convicted your honor was a drug trafficking conviction at the time the court has before it as part of the excerpts of record the various charging documents a plea document where the defendant actually admitted his culpability in distribution of cocaine a substance that is listed in the controlled substances act and therefore the the fact that he wasn't advised of his rights group conclusion voluntary departure was not error because at that time there wasn't the argument of divisibility there wasn't this whole issue at that time in two and we would submit that by way of a twenty eight jail letter post this argument  i don't know if the court wishes me to address the admission of the four removals or as it relates i think that the key argument here is really the visibility of the utah statute it is our position your honour's that core inaudibly holder does control done a very similar analysis on a very similar statute in very similar circumstances argued several cases dealing with utah law and all the parties scoured the law and we were unable to find any particular jury instructions dealing with this particular statute were unable to find statute that under a prem the the jury would find of necessity have to find certain substances otherwise they could not impose the court in sentencing could not impose a sentence that wants to impose still looks like california state law has a term in the issue of divisibility so i don't think that looking to you pass the law here would create a conflict the second is regarding certifying this question to the utah supreme court even if the utah supreme court says we're not i'm sorry doesn't say no it says we're not going to address your your question we're not going to certify it we're still left in a situation where we have no certainty about what the jury had to find and therefore we can't find that mr lopez was divisibility is not an issue it's a legal question were it worth saying is the statute divisible or is it not we're not looking back in time to what someone would have had to prove in immigration court which is really what with those cases hoc about the