said for argument this morning is united states versus thompson tencent really concerned a particular interplay of statutes and we're dealing with a separate section of title twenty one here right now that this this section that the government filed in the fifty one was p and thirty one which yes but yes but i'm talking about the whole interplay of federal and state law right right and we're looking at a different federal law well in title twenty one right right then we did in and we were looking the controlled substances act right and comparing lists right between the state and the federal revoking a different kind of our fence but here we have a different statute they were trying to construe and reconcile with using precisely crime and the other side is saying that the felony drug drug offense refers to conduct that relating to narcotics drugs marijuana and a bollock steroids which is the real focal point here and and and i guess one other that that that this particular drug does relate to and abo steroids because it could be used as a it to to address a side effect of anabolic steroids which is to go to remedy a side effect and and therefore it relates to it  and your response is response you know i think that that example just is just one example just in the law itself the people loss off is just wider and that it just is not the same as the federal statute so because they're not the same the government should be able to file a interpreted to define conduct conduct relating and not to an expansion of the four categories of drugs that come after it so the federal statute should include conduct relating to these drugs whether the conduct be possession or distribution or conspiracy or whatever and it relating is not a term that should be used to expand the definition for example of steroids to include something that in some way somehow relates to steroids right exactly right heavy as that it was it we should be expanding it rather that that that particular penal law in new york does not fit the federal standard should not that conviction should not be able to use one purposes is quite broad right there right so it's very i mean if the federal or state or foreign law that prohibits restricts conduct relating to narcotic drugs marijuana and about steroids or depressant or stimulant substance substances which is is really quite just brought i suppose it is from braces a lot and it's remarkably unlike the controlled substances that it's remarkably in specific and so just looking at a kind of plain language approach felony drug offense to me would be seen anything concerning a controlled substance wherever controlled that is punishable by over a year so is it isn't that what the new york statute does it does what i think it clude a wider group of substances that the federal government does not so you  think again we just have to compare the two controlled substances list and if there's any mismatch that means we can't rely on any state conviction we don't we don't get to be related we'll get it on that and what about what about the judge an anabolic steroid which i don't know i don't you know much about chemistry i understood it to be a hormone and that is used by people who take an amount steroids but not necessarily an anabolic beach we have some fact finding about that i don't think you need to i think it is better at least that was we're going to one example that we used for to show the discrepancy between the statues there there could be other ones the fact that there is least one is enough to show that they don't match up well but if it's if it's not actually a discrepancy because it is to be treated as an anabolic steroids and compassed within that rubric why doesn't that satisfy than the categor really have an argument under age fifty one do you i mean that argument just collapses that it's just that your argument is the joint shouldn't have considered the evidence indicating that this was cocaine you know because  that would that was an improper interpretation of the of the statute or what the judge should have been doing so we really don't get to that point you have to your st point is exactly right we don't get quirt my name is stephen climber i represent the united states before beginning my yard and i like to clarify one point at no point in this litigation did mr thompson identify any substance in the new york state schedules that he claimed to be broader than the federal law other than chorionic gonadotropin h c g c g and i know of no court decision that discusses this particular statute in new york schedules mr thompson seeks would be absurd for two reasons the st is this he would have his statutory sentencing range be dictated by a fact that has nothing to do with him his offense his criminal history or is personal is  isn't that just a consequence of the categorical approach is not the consequence of towns and i believe the answer is no your honor that's what i'll get to so my argument is that the categorical approach has sufficient flexibility to  to make that fact dictate the outcome here the fact of course is new york state's decision at some point in the past to schedule this one esoteric substance that mr thompson never saw or never touched but it's precise they mean it's those it's those discrepancies that have dictated the results in other applications of the categorical approach time and time again and that's one of the strange aspects of the categorical approach is that you get so far removed from what actually occurred i believe that a q sharana but i also believe that in a decision that i discussed in a twenty eight year letter i filed with the court on monday quarles resists united states the supreme court a unanimous court i think clearly indicated that when applying the categorical prog courts should not interpret federal statutes to be self defeating and they should exercise some flexibility and ask whether the state law quote substantially corresponds to that will these drugs under under state law that makes state war broader than federal law has  never been a subject that the supreme court has we have flexibility in that the whole categorical approach is we don't look at what the drug was and that was the substance of the underlying crime and the supreme court has never said well you have flexibility to see if the drugs are close enough or whether the result of the statute is silly because no one ever uses those drugs anyway but what the court does say in court was wrong and i believe it's a political in all context is the courts should not be using the categorical approach to read federal statutes so that there self defeating know understood but if it's in the violence area then there's always the question of can the crime be committed by less than violent conduct and and often a speculation about that right because you had a robbery situation where the guy doesn't actually forcibly take anything but may be blocked from leaving or something of that sort and then there's an answer and there's a lot of speculation about possibilities that if and it's argued to us but that doesn't that's different from a very broad categories that that but one could also read the statute as having relating to being regarding the contact not the drugs and i agree with that your honor and what i would say about that is this the conduct that is criminal restricted or prohibited by the state law here is not possession of this one drug or say office want drug the conduct because it's an individual state invisible state statute as to sale of a controlled substance and so new york state has a group of controlled substances that's the conduct that's forget it by the state statute and the federal categories arena and the statute have a general substances and there's a ninety nine point nine nine nine percent get but but that's really not for real or is it but there is the discrepancy and that can be significant i mean here the district court as i understood it correctly in applying the categorical approach said well i think h c g is kind of like an anabolic steroids and we consider it covered that seems to me a factual determination that had been in the adequate basis i mean i wouldn't know if that was true or not you know i got to get on with the p d and figure out what we're talking about here there was no factual financial think there was any evidence presented on this and it's precisely that kind of discrepancy that is caused courts to reject the you know on the end of fulfilling the categor as caused courts to reject predicate the state crimes as a good basis for a to amplify a sentence and this is this is worth five years of someone's life i understand that your honor the including steroids that are not that are listed for the felony drug offense subdivisions of controlled substances that this court dealt with in towns do that's not our position right or counsel asserted that in his brief i know of no law or fact finding that supports that search in fact if one looks at the statute for example hold on  it's so it's it's you you say it's not true that these four categories are included in federal definition of controlled substances that the court dealt with in towns and believe it's the case that to satisfy these four categories a substance must be listed on the federal schedules the definitions of these drugs are sufficiently broad that the substance can all fight under one of these categories whether or not it is listed in the federal controlled substances schedule so i'll say this your honor if one looks at that definitional sections that are title twenty one section eight hundred and two it has the definition of controlled substance congress wanted in that did eight hundred and forty one could have hinged that predicate on the words controlled substance it chose not to do so it chose instead to refer to these four are very  that it was included in the four categories of felony drug and i'm not making that remember i'm sorry i maybe i was unclear my point was different my point is and i thought i was responding to your question the  definition of controlled substances as listed on a schedule under federal law is not necessarily exactly the same as the substances within those four categories in subsection four but that  substance that included in the poor categories of the felony drug offense i'm no quarrel judge no then how are you you prevail because the statute doesn't say relating only to these four categories and our point is that if there is a state law that criminalizes a class of substances a group of substances a conduct involving the sale of substances and there's federal law that covers ninety nine  percent that's all those substances the word relating to the specially if one looks at what the courts even we could we should read relating to as including but not limited to these four categories and kind of whatever else we should not read it as relating only to that's our position you have no legislative basis for taking that position in the fact that the court that the legislature did not number one say controlled substances as someone were prosecuted for selling milk would that be in included here and that ought to be treated as a felony drug offense no it would not you're wrong and why not because the supreme court in quolls said we should you should look to see if a quote substantially corresponds to the federal definition and mel quote substantially correspond because it's a widely celled substance in contrast the substance here actually corresponds in the in the i'm going back i'm sound it sound like a broken record on the violence side of the question as opposed to the the drug side is different here the statute says and you are the united states or state or foreign country that prohibits restricts conduct relating to narcotic drugs marijuana and about steroids were depressant or stimulant substances and i thought your argument was that because this h h  those arguments are over if you're on the district court judge relied on the nd don't the one you mention namely that h c g is related to anabolic steroids that argument is not where he says well all right that i don't think we have the argument thank you very much a mystery how do you have two minutes every bottle of very good thank you thank you very much will take a batter under advi