conviction he did not in fact have a drug trafficking conviction instead he had been previously convicted of conspiracy to possess a listed chemical which is overbroad this chord in a mental floors  it forty one c two is very similar to aiding and abetting right but that's not the question the question is well then if you saw that says that if it's sufficient lee similar to t it really looks a lot like the residual clause type analysis that was struck down in johnson because i don't i don't understand that argument well if it's similar to what is that what's the doctrine here there isn't a test for how it would be similar no five to the guidelines is not a catch all provision and when it's similar to it's when they're talking about income a defense is it's similar to a controlled substance offense but this isn't a controlled substance offense as i said in my brief under title twenty one eight zero two totally different control illicit chemical controlled substance different things and in fact the definition the case long term printing a forty one c says that congress wanted to have live below the reach people who were going to produce a drug who couldn't produce the drug so it's not a controlled substance offense it's categorically overbroad both because it's not a controlled substance offense but also because the mens rea doesn't reach controlled substances so to that extent even the un coate argument isn't similar to and similar to once again november i think so i mean he signed up for an eight month deal so i don't think putting off the decision until now this comes out would it would make the case it wouldn't be any help to him but i don't think the court needs to and all monza arrhenius this court had said that if we're going to  this sort of peek at the shepherd documents engage in i don't think this would be a modified categorical nasa's number one the government didn't raise argument below so i think in a way but number two the only gauge in the modified categorical analysis when it's a divisible statute will do a little bit of peeking but only when we're not sure whether this is an elements or mean situation but here we're very sure for three reasons one you have the jury instructions the ninth circuit model jury instruction to you have cower and three you have i used to manufacture methamphetamine as a drug trafficking offense within the meaning of two l one point two and i think there is a convergence of facts here that lead to the answer which is ye drug trafficking and definition so it prohibits offenses that involve the manufacture import export distribution or dispensing of a controlled substance there's nothing in that definition that contains inherently anything about  but whatever you think about the intent issue all right there is a big difference between a list of chemical and a controlled substance under the regulations yes that there are different listed chemicals in controlled substances are aiding and abetting a conspiracy you have attempts and under this sort of goes and all of those have i agree that all of those have an intent element but if you look at eight forty three b for example eight forty three use of a communications facility so there you have either no knowledge that the phone is being used to promote or to facilitate a drug trafficking offensive don't necessarily have to have intent but going back to the convergence of factors that show that the sentencing commission intended to include this type of offense i think united states versus main the eighth circuit decision that that found an eight forty one c two offense to be a controlled substance offense is illustrative here they are they discuss how congress passed the sentencing commission with implementing the career offender guidelines and that task came in the form of the statute twenty eight united states code section nine ninety four h and there they provided that the commission shall assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term for individuals who have prior convictions for and this is a quote an offense described in section four a one of the implementing that congressional directive was implement the career offender guidelines for the one point in the language and for b one point two where they found that a controlled substance offense one that prohibits the manufacture import export don't think that anything expressly in the career offender definition of controlled substance offense incorporates anything about an intent or mens rea at so for example the case that mr lekman identified in his twenty eight j letter garcia jim discusses the intent in the generic offense of aggravated assault and how that cannot include extreme recklessness or disregard for human life that's different than the definition we have here unlike a common law definition of aggravated assault the sentencing commission the fine controlled substance offense and drug trafficking offense to mean offenses that prohibit the manufacture or distribution etc of controlled substances it says nothing about any intent honor to united states versus smith that's it seven seventy five f third twelve sixty two it's from the eleventh circuit in two thousand and fourteen there the defendant argued that his florida i believe it was a florida drug trafficking offense was not a controlled substance offense within the meaning of the guidelines and because it omitted the requirement for intent in the way that the federal controlled substances act and the eleventh circuit found that there is no element of mens rea and with respect to the illicit nature of the controlled substance that is expressed or implied by the definitions contained in the guidelines and i think that informs the question here there's no intent requirement that's embedded in four b one point two or two well one point two so the interpretive exercise here is what  hundred ninety seven at the time that four b one point two was amended to well one point two didn't exist in its present form so to a one point two at the time allowed for a sixteen level increase for anyone convicted of an aggravated felony or fo level increase for anyone that had a felony conviction or three prior convictions for a crime of violence or a controlled substance offense that in turn has she to forty one point two the career under guidelines it wasn't until two thousand one i believe that one point two was amended to be in its present form so there was no occasion for the sentencing commission to make the parallel amendments to one point two that it made to forty one point two and that's because it didn't have to because in one thousand nine hundred seven the sentencing commission told us what it meant when it included offenses that prohibit the manufacture and distribution of controlled substances that prohibits other offenses that are closely connected in fairly considered to be those controlled substances that was the language that the sentencing commission used in this amendment as a result we have offenses this just for example possession of a flask or equipment with the intent to manufacture a but there's two components to this offense your honor the first component is possession of a listed chemical and i agree with you on that but it's then with the knowledge that that listed chemical would be used to manufacture a controlled one point two contained an intent requirement but it doesn't again to a one point two by its terms only requires that the offense prohibit the manufacture distribution of a controlled substance and because the sentencing commission at the time that it drafted this language was required to include with end it all twenty one u s c eight forty one offenses and we know that to twenty eight u s c nine ninety four we know that that is what the sentencing over october twenty sixth teen is the scheduled date for the defendant to release your honor and so the sentencing appeal would be there we had it october ten months your honor a time well let's quickly for offenses we know that even a general intent offense require specific intent when you talk about the in coate version of that offense so i think intent would be important here with that i think i'll just submit thank