third thank you may it please the court mike rayfield on behalf of the petitioner manwell pres the government doesn't contend that mr pereira's can be removed based on his conviction under and y p l two twenty point zero three and the government agrees with us that section two twenty point zero six is categorically broader than the federal controlled substance offense because it includes a drug that isn't on the federal schedule now we don't think that the modified categorical approach applies because the statute isn't a visible but i'd like to start with what we consider to be the most straightforward reason for why mr president removeable even if this court were to apply the modified categorical approach the government hasn't met its burden of demonstrating th conviction was for possession of cocaine the only document in the record of conviction that specifies a particular subsection of section two twenty point zero six is mr prez's superior court information and this court has consistently held that a charging document on its own a mere allegation of a crime is insufficient to establish the basis of a conviction under the modified categorical approach the government had to show that mr perez confirmed that his plea that his plea was based on cocaine because it didn't do that it failed to satisfy what the supreme court has called the demand for certainty required under its precedence so just to take a step back this court recognized in the harbin decision last year the government relies entirely on the modified categorical approached to establish its case and specifically on three documents only one of which identifies any particular subsection of two twenty point zero six mr prez's superior court information says that he was that he was can that he was charged with with possession of cocaine five hundred milligrams or more but this court has held that an information or an indictment is not evidence is not evidence of a conviction it's only an allegation designed to place the defendant on notice that under this court's precedents a charging document is is insufficient that's this court's decision in rosa and james which we've cited in our brief and i also want to point point the court to this court's decision in united states versus green four a t f third six twenty seven which is not cited in our brief but which also makes clear that that an indictment is insufficient under the modified categorical approach now the only other two documents that the government submitted in support of the modified categorical approach are mr prez's waiver of indictment and his certificate of disposition neither of these documents specifies any particular subsection of section two twenty point zero six or any particular drug so if anything these that he pleaded guilty to the offense in the information and because the government has been satisfied that this demand for certainty mr president removable but there's a second reason why mr why mr pres can't be removed based on twenty point zero six which is that because the identity of the drug is not an element of a section two twenty point zero six conviction the statute is not to visible and therefore the modified categorical approach can be applied to begin with under the supreme court's decision in mathis last year it's it's not enough that a statute is simply divided in two parts if it uses what the supreme court called an itemized construction a statute is divisible only if it's separate components are elements of a crime rather than diverse means of satisfying a single element of a single crime and under that under the supreme court's decision something is an element only if the a jury has to find it beyond a reasonable doubt or if a defendant necessarily pleads it by pleading guilty and to decide whether that's the case you have to look to two things you have to look to the text and shrug sure of the statute and decisions of the governing twenty point zero six that would allow you to permit us to read it in that way which seems counterintuitive given the requirements of section one and i understand that it that because the statute is divided up it's it's a little bit different from what this court was faced with in harbin but what the court was faced with in this correct but the it's not meaningfully different for two reasons first of all of the all of the offenses it under two twenty point zero six carry the same punishment which this court held in harbin is a strong indicator that this is one offense with different means rather than separate elements of an offense and the second reason we know that we know this is because in general under new york law the new york the new york courts have treated drug different drugs listed in its schedules interchangeably it doesn't generally matter under new york law which substance  particular drug you're accused of using that the jury could find you guilty if half of the jury found that you possessed chorionic gonadotropin with intent to sell it and half the jury found that you possessed cocaine five hundred milligrams or more or at least there's nothing in new york law that would suggest otherwise and so and so in other words for the prosecution could present a present a theory that people view  so people the laurents holds that that the government has to prove a the the weight element beyond a reasonable doubt this this is actually people be lawrence was actually decided before the new york statute was it mended to make clear that the that the weight element doesn't isn't that the knowledge element doesn't modify the weight component but the point is that the that the that the the prosecution has to prove at least one of the sub section is beyond a reasonable doubt but the jury doesn't have to agree on which of the on which of two all three turned of theories it believes so for example if the government were to bring a a case that accusing the defendant of of  possessing five hundred milligrams or or more of cocaine with intent to sell which if proven would satisfy either of the subsections both one and five if half the jurors thought that the defendant  possessed five hundred milligrams of cocaine without an intent to sell and the other half thought it was four hundred milligrams with an intent to sell the jury could return could return a guilty verdict in and under mathis and hartmann the stat that kind of statute is not more which the rest of us would call a gram but your calls one thousand milligrams simple possession is a convict of all offense under subsection six but under petitioners construction what if they only proved he had seven hundred milligrams academy well if it is true as petitioner contends that the controlled substances are just interchangeable that they don't matter new york law well then that's fine we can just charge him under subsection five that says cocaine but if it if the substances are interchangeable well then well we have seven evidence of ketamine that would be enough now we know that's not the case we know that's an absurd breakdown there are no pointing to specific criminal consequences attached to specific behaviors and again these behaviors that are listed in two to six are incompatible we have an intent element in one we have various weights in others that the new under new york defendant of subsection one a controlled substance with intent to sell it and have to jury could convict under two twenty point zero six section five but no your honor because intent in that circumstance must be proved beyond a reasonable doubt there must be an intent to sale or why why does subsection one have a controlled substance with intent to sell it and then it says work i don't know why it's new york law defines it that way and an important one is not an important point the whole point is that one of the subsections the subsection under which the appellant here was apparently convicted does not have an intent element it just says possesses cocaine and said cocaine weighs five hundred milligrams were more right it's my understanding that when new york reorganized the controlled substance offenses if you are such a truly they were reorganized not just for people logical purposes but also for punitive purposes in other words they're not categorized and that's why the court has charge and a jury can convict someone of violating penal law section two twenty point zero six five only if it shows that the defendant intended to sell cocaine no your honor the conviction under that subsection requires simple possession of five hundred or more milligrams and that's why that's why they are divisible which brings me to my next step of course if that is a visible statute which we contend it is then have we demonstrated that petitioner was convicted of the cocaine element which of course especially controlled not all disposition dash superior court information so that's our first clue that we are going back to the superior court information it's a reliable link between the certificate of disposition i am looking at page five forty two of the is certified special assistant hughes is just an accusatory instrument it is it is but it is linked by the language of the certificate of deposition to the to the outcome where we know that's what he pleaded to that's one way we do we know it because ok that would be the sort of disposition superior court information that's how we know we can go back to that superior court information see what was this case about and i noted it as in my brief of course they have the same case number the same deep detail identifying information that tells us we can go back problem a problem potentially is it doesn't reference in references to twenty point zero six it doesn't reference to twenty point zero six five correct your honor to get to two to get t subsection five one but we have to know that he must be inflated to one of the subsections to get to five that we can look to the next page in the record your honor which is the waiver of indictment this is where he agrees to civically that the superior court information will charge the offense name and will have the same force in effect as a grand jury indictment again that's another in addition reliability of the reason we can go to the superior court information is because he literally waived getting a grand jury indictment instead of that specific superior court information that's how we know it was questions on that issue which is the other portion of immigration is was the relief side of things here we urge the court to defer to the reasonable construction in matter of virus describing the various elements of the failure to appear and also finds that petitioners particular crime is an aggravated felony failure to appear as the board did to that end we have all of the elements that the board described a failure to appear before a court fifteen years to life which is which would satisfy that final element a felony for which the two years or more may be impos the certificate of disposition the waiver of indictment in the superior court information are the three documents that establish that he did in fact was in fact convicted under subsection five i forty one five forty two five forty three y an indictment alone can establish it but standing in conjunction with other reliable documents in this case the disposition itself which lists the certificate which lists the information and also the waiver indictment which also lists the secure good information those two things point us actually superior court information and that is enough to say that that's what he was convicted of the certificate of disposition doesn't more specifically reference subsection five i don't know your honor because i wasn't there usually the case based on your experience of it law texas cases and it really depends on the clerk of the court if you notice that signed off on by the clerk of the of the court it's not signed off on by the judge and what happens in these cases is it all takes place in court and the clerk is taking copious notes after court's over the clerk goes and create that either minute order in some places or here it's to be disposition which then gets forwarded to the judge for final approval saying this is what happened in court here was the charge and here was this i don't know why the clerk didn't include all of the all of it there but i don't think it needed get a look at just one document it tells us that we can search these separate documents and and come to a determination based on common sense i don't think that's right your honor i think when we left with you're left with a a superior court information an allegation of a crime which doesn't necessarily establish the basis for the conviction which certainty of we are all i think all ault no no be a totally different case that the modified had but but this court precedents make clear that the that the that in a charge of document isn't enough and i'd like again to point to the the the green case  which where this court said in that in this case the government submitted an indictment specifying a particular subsection of and y p l two twenty point one six and a and a certificate of disposition that that was ambiguous on the point and the court said although we reject green's contention that shepard barred consideration of the search at the gate of disposition we agree that the new york indictment did not provide a sufficient basis for the district court's finding and we conclude that the import of the certificate of disposition requires further exploration in that case the certificate of disposition contained a notation that actually that actually arguably identified the subsection that the plea was based on and if you look at if you look closely at and i'm sorry i'm out of time if i can just finish the thought if you look at a r five forty one the certificate of disposition it says about halfway down criminal possession of a controlled substance fifty agree to twenty point zero six zero zero that zero zero is a place where in green in green that that that the clerk was was unable to identify any particular subsection that he pleaded guilty to which suggests that he pleaded guilty to the statute as a whole and not to any particular particular subsection let me read you are not modified categorical approach requires require certainty on this point i mean your point is it could have been one just some controlled substance with intent so it is don't know exactly and we know that subsection one