arizona's dangerous drug statute is indivisible this quarter find that it is and vacate the holding of the or remand of appropriate for the following reasons first the actions delineated within the statute are simply different methods of commission and second the drug identity is not an element of the subsection i will address the first point well my co counsel will address the second and regard to divisibility by action the only way that transportation for cell can be treated as a separate and distinct crime is if it was also further divisible by transportation via importation under arizona law as exemplified by steve versus kirshner there are two ways to commit transportation of dangerous drugs the first is by transportation for sale and the second is via importation in other words if we accept the government's premise that transportation for sell is a separate and distinct crime then we must also treat transportation for sell assets right from the very act that arizona courts have already used to prove up transportation for sale but they're already agreeing about it being overly broad rights or do we need to go into that no your honor however importation is relevant because arizona courts use or allow the government to prove transportation for sell via importation and so if we treat transportation for sale as he said grid distinct crime then essentially what will happen is that arizona courts will treat transportation for sale or the subsection as divisible when it is violated by one type of action such as transportation for sale but in divisible one is violated but i think you are you you're not you're giving short shrift to arizona law because you've got a supreme court case in arizona state versus a share me and the relevant pattern jury instruction makes clear that each component elements of transportation however the key distinction between superstrong me is that it was decided by the charging documents test and we know this because state versus bradley explained this and so what happened or what happens under the charging documents completely opposite result under the elements test of course will consider whether the lesser included offense is always a consequent part of the greater of fans and so looking at the entire subsection as a whole versus bradley found possession of a dangerous drug is not in fact always a lesser included offense of transportation purcel and so what happens is that because taylor demands this level of certainty in order to apply the modified categorical approach and suit versus by the application of state law in arizona arizona punishes four types of drugs marijuana prescription drugs dangerous drugs and are drugs and within the context of narcotic drugs state versus ground found t and therefore it could not be charged in multiple counts because arizona courts have already found in a similarly worded statute that so in transfer one single offense this court should also recognize that it is most likely that arizona would find that transportation for sale is not a separate and distinct crime from the remaining actions delineated within the statute furthermore the jury instructions also suggest that the subsection is also indivisible under arizona law there are two jury instructions one specifically for offering to transport offering to import offer to sell and the second for transportation importation transfer and sale and so what's interesting about these instructions is that both of them list in brock's in brackets the actions delineated within the statute and in fact they have this provision in the jury instructions that says that allows prosecutor sue only use the actions to the case which means that prosecutors can our have the flexibility to amend the instructions depending on the theory of the case if for example they were only accusing the defendant of sale then they could only include selling the jury instructions but they had two theories of the case that included both transportation for example or transfer then they they can include both of them in the jury instructions and so this  they're allowed to only in one specific statute or if they're allowed to action or if they're allowed to include both of the actions then the subsection must be an divisible why don't we go back and jump to the very front  and tell me why you don't think that he waived his argument first and foremost before we jump into the divisibility ok your honor if i understand correctly the government's position on that is that they were addressing the argument of divisibility by the identity of the drug and so that argument was presented in the footnote in the original right brief that submitted to the b s a and so because of that the instructions that suggest that arizona prosecutors are allowed to to amend to amend but they're also allowed to charge the entire statute as a whole or in the just start destructive and this was the particular prong must be considered indivisible and so here the jury instructions are able to be charged as a whole and that is done destructive and so this further suggests that the arizona legislature must have intended to create one single offense and not treat transportation for sale as a separate and distinct crime you also make the argument that the drug itself because there are several different drugs  deals with the same issue on a california statute are you familiar with that case yes your honor so wouldn't it make sense on that argument for us to wait to see what the ninth circuit says on that you could  honor however that piece is not likely to determine the divisibility by drugs type because there's a significant distinction between tell the fornia powder during instructions in arizona during struction it has to do more with the elements rather than just the drug typewrite correct your honor in addition california allows prosecutor or has a blank space that prosecutors can fill in the name of the drug whereas arizona  for its dangerous drugs actually do not have that option however in addition martinez lopez would clarify the divisibility analysis undermines his versus united states so in that regard this court could wait however it is unlikely that it will resolve the issue of divisibility baker a technique that they use in getting there might be helpful but the statutes are distinct in regards but we do have an end bonk panel looking at it right correct your honor and i see good morning your honors please the court my name is in my oldest son and i represent the petitioner and you know i will argue that specific drug identity is not an element of can do just conviction because thirteen thirty visibility that is at issue and as well if i'm i'm a little bit perplexed in that on the argument be whether the drug itself has an element or it's an alternate means of committing the crime because that admittedly i was a prosecutor in california but say if you're charging all of it and then you get up to that it's methamphetamine all right if you don't if you did not call a witness to say that the drug in question w methamphetamine and present some sort of evidence that a qualified as whatever schedule was involved or if there was a stipulation and you rest your case at the end of it the defense would jump up and say that the prosecutor has put on no evidence of the element of the drug and therefore and what the court would say is you're right and so the defendant gets a not guilty right there as a matter of  insufficiency of the evidence so if that's how it works if you don't the process how can it not be an element well your honor you are correct that the prosecution does have to put on evidence that a dangerous drug was present because a dangerous drug is an element of the statute and a common means of accomplishing that and of satisfying the dangerous drug element is by showing that a specific drug was there and by showing that specific drug identity however that is not a necessary means and we know that by looking into the arizona pattern jury instructions as my co counsel mentioned for example the arizona pattern jury instructions for a conviction under thirty thirteen thirty four of something a seven lists all of the elements of the statute including the general term dangerous drug however ok so if you dump are any evidence then the other side could argue well it was just powder it was baby powder so i mean it's an element to show it's a dangerous drug respectfully no your honor well the prosecution a jury is allowed to be split as to the specific identity of the drug so long as the jury unanimously agrees that some dangerous drug was there for them but the problem there is with the list of dangerous drugs you have a couple that are not is that the issue there yes your honor and that is why  overbroad that that's the issues are so so even if the jury were instructed you must find that a dangerous drug and you don't need to determine the exact kind you have this issue with the list of dangerous drugs having a prescott where the court held that it is clear from the statutes that possession or sale of a dangerous drug is one crime regardless of whether the drug possessed or sold is methamphetamine and d n a or any other substance that the statute defines  dangerous drug and this alludes to the idea that the jury is able to be split as to the specific identity of the drug making it merely a means and not an element of sat satisfying statute and wall street versus prescott is unpublished we do not look to it for its binding authority or its precedential value but rather we look to it to see the common practices of arizona prosecutions whether it's reasonable and not just a hypothetical made up that it could be applied in such a way that it's actually applied in such a way your honor i'm sorry i don't here's what you're arguing that even though it's not a published decision  arizona courts do it or view it yes your honor it exam it exemplifies how it is we don't have a lot of arizona law on this and all we don't do yeah so we have to go with what we got the california pattern jury instructions for the similar or equivalent drug statute where in california they leave that blank open so that the prosecutor can write in the specific drug identity arizona does not do that meaning that in arizona the have any more time then if you have something else you want to say i'll give you a minute at the  and this i manage and this court has already held in garcia santana that arizona's is an example of the type of conspiracy statute that needs to be generic definition so then you move to  four of seven a creates quote a transportation for sale offense which contains specific elements of transporting for sale a dangerous drug or opponent would have this court believe that cherami did not know what he was saying when he used the term elements to describe the elements of that offense but surely in fact used elements in exactly the way that mathis instructs cherami said that the elements mean what the state must prove mathis said elements are the things the prosecution must prove to sustain a conviction so we had a state supreme court telling us explicitly that transportation for sale is i distinct offense under thirty four or seventy seven right instead that share me was decided in two thousand and eight and that this was decided in two thousand and sixteen and i think that the combination of  that has a jury unanimity requirement not all do then the jury has to agree and whatever then the states that don't require jury immunity still require ten or nine to greece or whatever number have to agree they have to agree on that element that's what makes elements of the two relevant offenses a set forth in the arizona criminal code so it is looking at the code to determine what are the elements of this offense so we have an arizona supreme court decision that tells us that this alternative these are two separate offenses brown told us that under the dixon analysis transportation and sale quote do not represent different ways of committing the same offense and in brawn hundred five the arizona court of appeals said the transportation for sale and the last alternative transfer are in fact two offenses because they contain different elements so we have the arizona state supreme court telling us the transportation for sale is a distinct offense and we have the court published were repealed decisions showing that transportation for sales been treated as a separate crime from each of the other alternatives in addition as just kind of question suggested the model jury instruction strongly support  the same conclusion ok so but then we stop to go to the drug itself right all right i mean there would be no person that would be happier in the entire world if they got rid of the categorical of the modified categor do you what's your best argument that it's a not an alternative means of committing the same crime we have a number of published cases that we've cited it is thirty three and thirty four very brief that holds specifically that in order to prove the claim the government must identify the substance and prove that it falls within the definition of dangerous drug we have cases that describe the specific drug as a based on the same transaction again they're not as the cases that you cite i think on this one aren't as definitive as this arguably cherami or however we pronounce that so and we have this pending on pot case on the california statute which is fairly similar should we wait to see what that says or do you think it has any bearing on this i think it  what effect even though it's a different statute what effect would it have on our analysis here it would just be more support for the position that i think is clear from all of the information from this court because all of these drug statutes type of drug or as the instruction seems to indicate that the one we have in the record seems to indicate that it just requires you know and imaging that it was a dangerous drug which is in turn a reference to the schedule which lists some drugs that are not a controlled substance under the federal list and some drugs which are we believe that the cases that we require the identity of the drug the specific going to be proven for the reason that judge handles questions yesterday which is that in order to prove the crime you have to have this is  callaghan's questions are just right you know water to prove the crime the government has to put on evidence that expert evidence that the particular drug qualifies under the schedule and this is exactly the reason that the henderson case in the third circuit found reached the same conclusion it said that in order to prove there should have heroin the jury would have to conclude that henderson in possessed that specific drug which has been classified as a controlled substance in schedule one were to that particular controlled substance then is a distinct element of the crime you couldn't have a jury be again is the jury instruction that we have says that you instruct the jury to find a dangerous drug it doesn't like california it doesn't have a blank where we put in that drug what was a jerk with the jury instruction says is that the jury must find that the substance was in fact a dangerous drug if i could cite to cast arena which is one of the cases that are  there you had six drugs found in a single pill bottle three of them your product drugs three of them were dangerous drugs the indictment charged six separate counts identified by specific drug and the court upheld six separate convictions based on each of the separate drugs is a very strong indication that each drug is considered an element of a separate crime in this case  we need not rely soley however on the arizona case law we also have the face of the statute mathis tells us that the fate of this in the statute can be a very good indication of whether you have means or elements and here the drug schedule like all the other drugs most of the other pictures across the country provides an exhaustive list each and every drug and both this way b and henderson following mathis found that that was a very good indication that each drug was the element of a separate crime they weren't listed as illustrative examples they were listed in an exhaustive list in addition in this case the specific drug issue particular case this particular immigration case it matters that we get the arizona law correct on this i completely agree your honor so i don't i know i realize that i know under the out of federal you know the federal  guidelines that you would absolutely have to in that indictment plea the type of drug as a matter of a print absolutely have to do that i don't know for sure if that's the case in arizona require the inclusion of pretty elements in the indictment but it is sufficient notice if they're included in the indictment and here it was included in the indictment methamphetamine was was specified and the other should in fact look you see my time is up if i could go ahead and should in fact look at the record because that can be as good an indication as as state law as to what the elements of the crime work and here the record is conclusive in that from the indictment to the plea agreement to the actual judgment each one each step along the way those documents specified one alternative to the exclusion of the others each one of those specified transportation for sale to the exclusion of any other possibilities in each one of those specified methamphetamine to this question of any other cause you put all of that information together we have the certainty that taylor demands that this crime was in fact a generic illicit trafficking drug and for all those reasons and with my apologies for my facial expressions you know we would ask  your honour's thank you for the additional one minute and i have two points on rebuttal the first is when sure amy was used the phrase elements of transportation and used in the context of a lesser included offense under the charging documents just because it would because it only considered one way of violating the statute was which was transportation for sale but even if sure amy used elements of transportation in the same way that suit vs brought they did then we still have one arizona supreme court one arizona case who is also bound by arizona supreme court and who nonetheless was able to find a contradictory result and so what happens is that