and rd that texas prosecutes non generic offenses thereby satisfying the realistic probability standard in the th circuit of the parties agree that penalty group to a is overbroad and not a categor the type of synthetic marijuana and possession in its dyno review the agency did not do a divisibility analysis before applying the modified kind of approach to an individual statue the agency begin with that really on its face on its face penalty group to a pariah its lists with examples of synthetic marijuana that can be prosecuted under penalty group to to commit the offense and not additional elements to the effects the legislatures and tent for penalty groups to aid to be in divisible and for the substances that are listed to merely be examples is evident in the catch all wording of penalty or i'm sorry a section subsection b which allows for the prosecution of substances that are listed by name and if they're not listed by name they can still be criminalized in your penalty group to say if they fit into the defined classes so this means that panel that substances that are have not yet but i've been identified or that may not yet exist can be criminalized and the penalty group to a this is because penalty group to a defined chemical structure all classes of substances and then uses the phrases including and such as in at least seven different instances throughout the section and each time these include phrases are used they are followed by an open ended list of examples of substances i could be prosecuted under penalty group to say and also nowhere in the statute does it indicate that each substance is a distinct effects and this is in stark contrast to the other penalty groups which use the limiting phrase of the following and then c case where the texas court of criminal appeals held that the state has to prove that the respective components of the chemicals are located or attached as they are described in the statute so this phrase i've described in the statue is in contrast to explicitly listed by name which all of the other penalty groups do and again the other the other penalty groups use that limiting phrase of of the following and then list of the substances by name where penalty group lists some substances but but it also is inclusive over inclusive be especially because of the was also not listed on the federal schedules this is the case the state of the mostly also addresses penalty group today and in that case the texas court of criminal appeals but that that fit into the definition all definition of the chemical compounds and a lot of these substances were prosecuted in the aggregate and this is in accordance with the w and it's finding that the statute is divisible and so it's finding out the penalty groups that were that and it's finding that the penalty groups are all nearly identical this was the main structure on misreading of the agency this is because penalty group to eight is unlike the other penalty groups because of its inclusive phrasing and because it can criminalize substances that are not readily both make clear that it is two only if and when state law fails to provide a clear answer that the can rely on other documents to to determine divisibility so instead of doing this analysis the agency made the legally current statement that if the statute is unclear it could look straight to the conviction the conviction record and then the means by which the defendant committed the crime and that factual scenarios remain off limits to sentencing judges but the agency here but considering the means is exactly what the agency did here and then he used the modified categorical approach to review jury instructions that were not used in the underlying conviction to help it determine divisibility so in other words the agency didn't do an element only analysis and this also constitutes a reversible error so a penalty group to a is overbroad it is also not a categorical match and it also creates only one offense based on the aggregate weight of the various in which the statue may read so we will point the court back to the case of the state where the texas court of criminal appeals upheld the conviction for a substance that was not on the federal schedules but that was also explicitly listed and penalty group to aid and also note that the statutory language of penalty group to aid in of itself creates the realistic probability of non generic application again because of the penalty group excuse me because of the subsection b s inclusive and get and also because it was it was the intent of the legislature to allow for substances that are elements alone that was sufficient to foreclose removal meeting the burden actual prosecution of non generic offenses is a high is a high standard for cases like the president went to meet penalty group it was created only in two thousand and eleven and it was meant to be meant for the sea to be able to keep up with the quickly changing the chemical compounds of synthetic marijuana that would otherwise not be criminalized what the carter keys we have yes good afternoon may i please the court an esoteric on behalf of the attorney general your honor as the only question in this matter is whether petitioner a statute of conviction possession of a penalty group to a controlled substance under texas law is divisible allowing for the application of the modified category approach under mathis the short answer to that question is yes modified categorical houses reveals that in june rd was convicted of possessing a federally controlled substance aka and that makes him removable under the i n a as an alien convicted of a controlled substance offense now the texas statute prohibits knowing possession of a controlled substance listed in penalty gr overbroad but that's not where the inquiry ends mathes dictates that the analysis proceeds to the modified categorical project because the texas statute is divisible and the reason why penalty group two way is divisible is because by looking at it on its face it's impossible to know whether the substances listed there in the alternative are means or elements and that's the whole point of mathis is getting to that question mathis explains that the elements versus means test is easy in two instances number eleven on the statue on its face provides an answer which it doesn't here and secondly when a state court decision definitively definitively answers the question and we have that here the texas courts have especially particularly in watts and the state case from the texas highest criminal court of appeals held specifically quote we hold that a test texas legislature intended to make possession of each individual substance within the same penalty group a separate and distinct offense unquote and that that time it was referencing all of the statutes criminalizing possession manufacture or delivery of a controlled  doesn't avoid the fact that the watson court was being very specific in saying that it was analyzing the texas legislature intent when drafting the controlled substances offenses under texas law and i don't think that we can overlook that language now that language was used in applied and subsequent to texas state court decisions i don't think that was in the double jeopardy contacts in nichols the state which was cited by the board here are two thousand and one decision the court held that the trial court in permissibly amended the indictment from possession to cocaine possession of methamphetamine so even though both substances were in the same penalty for possession of each individual substance within the same group is a different statutory offense so the texas courts of appeals are are the ones that have to side of the issue or unanimous in your favor on that point are they not honor they are it's very clear under texas law that the legislature and texas courts have agreed that possessing the possession of a controlled substance makes it a different offense no matter what  statute or other drug offense statute you're applying under texas law those opinions pacifically reference watson yes nichols relied on watson and not the state which is the most recent that i could a set of state court cases don't answer the question you can look directly to the record of conviction if state court doesn't and state court decisions don't answer the question and additionally the board and the immigration judge also looked at jury instructions although none were used here to decide the elements versus mean issues and i think the pattern jury instructions provide a very clear answer the th circuit i'd like to point out  was addressing a very similar drug possession satchel under florida law also looked at its say florida you know florida state law to find that the the possession of a one to possess the controlled substance is an element of the and also looked at pattern jury instructions and noted that that was just an authoritative source of state law and that and then went and looked and to the record of conviction and we also cite in our brief other decisions from other circuits which have held that the controlled substance is an element of the offense in similarly structured drug possession statutes in other states so even if we put aside texas state law that i've cited here we can look at the pattern jury instructions and mathis also allows us to take a peek at the record of conviction and there is information out mathis dictates that of state law doesn't provide a an answer then the court can look at the record record of conviction itself it says that such a peek at the record documents is for the sole and limited purposes of determining whether the listed items eight are elements and  instructions could indicate by referencing one alternative term to the exclusion of all others that the statute contains a list of elements each of which goes toward a separate crime and here the indictment lists one element or one substance to the exclusion of all others and if we're applying mathis then that means that it's an element of the offense that a jury would have had to agreed upon or the prosecution would have had to proved legislature define whether a statute involves one or more offenses and it speaks to and i'll quote the legislature defines whether offenses are the same by prescribing be allowable unit of prosecution which is a distinguishable discrete act that is a separate violation of the statute and it specifically stated that possession oriented sassed statutes such as the one here the ins possession oriented statutes the prohibited item is the allowable unit prosecution and in that case it cited watson and nichols for that purpose and also gave apparent that a whole talking about that the the language that i mentioned earlier that the controlled substance is an element of the offense rather he was convicted of theft and then attempt to take a weapon from a peace officer but like i said the board specifically declined to address that because it found that he was removable as a as having been convicted of a controlled so i don't think it's necessary to go down that road because modified categorical analysis doesn't allow for the realistic probability  which again merely list examples of things that could be criminalized under penalty group two and then as the court has pointed out that was a double jeopardy haste  i'm sorry legislative intent and how it was meant to be super at the very inclusive so that it could criminalize substances that were not explicitly listed in terms of the jury instructions those were not used in this case and in the blank in the jury instruction is not determinative of of divisibility  the reason the jury instructions are not determinative in this in this case is again because the carter stage carter keys stated that what the state has to prove is that the respective components are chemicals are located efficient to identify the substance so having to fill in the blank in the jury instructions isn't really instructive of a whether that the statute is divisible  and then one final thing is that the final jury instructions are not controlling line texas look this jury instructions do change between cases did there's no basis on which we would just terminate the proceedings although i'm sure your client would like them that's correct yes there are still issues other other grounds that the b a would have to