bet on behalf of robert reed the issue in this case is whether missouri's drug distribution statute qualify as a controlled substance offense under the sentencing guidelines it does not because the required analysis reveals that missouri statute criminalizes more conduct than the guidelines definition under missouri law and offer even a fraudulent offer suffice this for a conviction that is not found in the federal definition counsel the salmon's case says the opposite that's correct it does your honor ok so so tell me how you discredit sam's well hendricks came before sam and counsel i was hoping you didn't mention hand ri hendrix's vacated when the case was transferred to missouri supreme court and missouri has many many cases that say transferred case is no void no the i made a list of them vacated set aside fun so you know about the court of appeals opinion hendrix and then the supreme court takes a case in hand written and the supreme court in hendricks judge coming in says at that time there is no law on that issue and that is the supreme court of missouri speaking and chief justice coming an end in referring to the missouri supreme court opinion the conviction was a firm for hendrix at the end of the day mr hendricks found guilty for offering to sell drugs for the mere words and he continued to serve a seven year sentence as a result of that conviction so i fully aware of the c m s decision i understand that it muddies the waters here quite a bit but i don't think this court can ignore the supreme court affirmed in hendri missouri statute provides for definitions of some of the conduct contained contained in the sale and distribution statute and it provides that a person can be convicted for just offering to sell drugs a the definitions which are available both in the jury instructions and in the statute to indicate that delivery can include a sale that a sale includes an offer therefore and because that language is broader than the language that is found in the guidelines and the act the least act that can be found to violate the statute is an offer there for which is greater than that found in the guidelines a conviction under that portion of the statute cannot qualified the other thing i think that's interesting to note your honor is that in the salmon's case the court of appeals added some statutory requirements that aren't found in the  statute and that aren't found in the jury instructions and as as you know judge benton the missouri supreme court controls the way the instructions are drafted and written and the missouri approved instructions did not change after the salmon's opinion was handed down and we know that the court changes instructions to comply with changes in the law when the circumstantial evidence law changed in missouri the instructions followed suit but that did not happen after the salmon opinion was filed in fact if you think about a missouri trial court judge even today presented with a case where a person is charged with distribution or sale of drugs and the evidence is that that person only used mere words to offer the drugs the court has to give the jury the instruction that's available to it the does not include any more expansive language then and offer therefore an obvious imaging capacity at all it does not indicate that at all and it's interesting to note that the federal courts that have found that the statute of the state statutes for offer therefore did fit within the guidelines when you look at those instructions in those cases typically you find something more you find specific content you find that he had access to that that there was more to the instruction of the statute than than what missouri has and missouri statute hasn't changed the instructions haven't changed and words alone are sufficient to sustain a conviction in missouri the the i want to just walk the court through a few of the cases in our brief savage for example analyzed the connecticut statute and concluded that that statute was broader than the guidelines definition of a controlled substance offense because even fraudulent offers were satisfied that court that case gave the example of an offer to sell the brooklyn bridge the person can knowingly make that offer have no intention of following through with the delivery of the brooklyn bridge is a requirement to have what you think that's the better view missouri law well i think the instructions are the better view of the missouri law i understand your point but i'm just trying to find out whether the case rises or falls on that in other words if we see it the other way on the intent requirement then does that mean the offense counts as a prior i would still argue that it does that it doesn't because i think this court needs to do an analysis of of the total state of the law in missouri in that i think you cannot ignore that han't hendricks in the missouri supreme court had a conviction sustained from your word or you're still fighting the hypothetical are still fighting  i just want to get that settled for right and you know i think that we don't know out there how many missouri prosecutors are still charging individuals with making mere offers that many people plead guilty to resolve their cases regardless of whether the case goes to trial and goes up on appeal in this court has the opportunity to look at that history that the statute still allows missouri prosecutors to charge somebody who simply makes mere words or offers to sell the drugs  and i think even the dissent in salman's talks about the policy reasons for being able to prosecute something like that that it's dangerous to offer to sell drugs and not deliver on that that the potential for violence arising from such a  offer is something that prosecutors should be able to prohibit the government also argues that the language in the guidelines which permits convictions for attempt to qualify and they argue that offer they are for and attempt are one in the same and i think that defies logic and if you look at the mat concision that court does a very nice job of distinguishing between an offer and an attempt obviously this court knows that an attempt to require some sort of substantial step to completing the offense and offer however can simply be fraudulent i can offer to sell you drugs without ever having them or having the intent to produce them but i those are not the same  the government also argues that because under their argument the attempt would qualify as under the guidelines that mr read both of his prior convictions would count but i think it's important to note that his conviction his first conviction was for attempted possession of a controlled substance a class c felony so i under their logic you would have to conclude then that mr reed's conviction was an attempt to attempt to offer to sell drugs if attempted offer of the same thing and if that argument were to fly then clearly that his conviction wouldn't fit because it exceeds the guidelines the guidelines don't allow for an attempt to attempt to do something it please the court my name is allison baron's i'm an assistant united states attorney here in st louis and i represent the united states in this appeal as the court knows the statute before the court today is the missouri state controlled substance statute a particular section of that which is section one ninety five to eleven and that's fancy provides that it is a crime and to distribute deliver manufacture or produce a controlled substance and of course the issue before the court is whether that term deliver contained in this statute criminalizes a broader swath of criminal conduct than the generic definition of controlled substance contained in the guidelines and the more specific issue for the court is revolving around the fact that the term deliver is defined elsewhere in the missouri statute to mean sale and the term sale is then in turn to find elsewhere to mean defined elsewhere to mean an offer therefore and so the question is does that inclusion of that phrase offer therefore make the missouri term deliver in the statute broader than the guidelines and it's the governor's position that it does not this court has not yet had the opportunity to consider the relationship between the term i learned from the get go absolutely and so the circuits that have decided the issue the clear line of demarcation is if offer exists by itself that's not going to be sufficient and i think everybody agrees with that that is simply not sufficient it will criminalize a broader swath of criminal case contact so the question for the court is then do we have something more here in missouri and the supreme court as the court knows always directs the court in making that determination to look at how the statute and here the state court interprets its statute in state against say ammons to require more nowhere in the government's brief contrary to what his fine dick said does the government say an offer is sufficient what we are arguing that missouri requires offer plus more it requires an offer plus an intent to follow through with that offer and ask then i think the term capacity you've read salman's i have do you think capacity is the key and dissent writing more clearly than the majority he uses the term capacity do you think that's the way to think about it or not he does use the term capacity your honor but i would direct the court  anything to haley and that's in the final paragraph of the majority opinion i believe its intention now if you have the capacity to follow through that is subsumed within intention i believe so there are probably different ways that you can show your intention to follow through but regardless the law is clear under salman's that something more than just mere words is required and i would greatly disagree with the argument that simply because the jury instructions may not have been modified that somehow alters the because you are you are the jury instructions are mandatory in missouri and they're done by the supreme court by a vote or you were no i am aware of that but my point your honor is and obviously i will always defer to you on those no no no it was an honest question you know but but yes but that's not i don't think the precise issue that i'm making and i may not find it even at all believable that prosecutors will be out there prosecuting defendants on m words and that that has never been appealed since salman's was decided that there hasn't been a subsequent sufficiency of the evidence are the jury instruction you think is favorable to you or have you looked at the jury instruction i have not looked at the jury instruction your honor but i will say i don't think the jury instruction matters in this particular case because the law is so clear based upon what the supreme court requires this court not this court but in general the analysis is to look at how state courts are interpreting how our state courts interpret in their own statu state against salmons is the preeminent case in fact the only case on the issue it couldn't be more clear that more is required been a mere offer and because more is required that means that  consistent with that line of demarcation which is that if you have an offer plus more then according to the first second six tenth circuits all the courts to consider that line if you have more than that is comparable and consistent with and an attempt under the guidelines to commit a controlled substance offense and ask such because both of the defendants convictions fall under that his both of his convictions count for purposes of elevating his offense to becoming a career offender in this particular case supreme court stands at that there was a procedural issue of course that stands but spin it also says there is no law on the subject at that time that is correct and in fact i think the dissenting opinion and salmons judge me also says that there is no guiding guidance from the court on this issue but the fact of the matter is that the hendricks appellate decision thank you for the quick learner stand the fifth circuit's position to be that there must be possession there there is an offer opinion stands alone for a reason and that's because i don't think the analysis if you follow that procedure which we've set out atlanta in our brief i don't think the procedural posture of that ultimate ruling stand under scrutiny as i indicated in our and i'm happy to go through it with the court if i'm struggling to think out to say to you guys we're talking past each other ok wait no no how do you think the fifth circuit is case i should ask a question how do you think that this circuits case is different than everybody else everybody says there are different how are they different here's how i feel they're different the missouri texas statute includes the language offer just like missouri stuff ok so the t statute includes that language it is the government's opinion that texas law requires an offer plus intent in order to be convicted the fifth circuit in its rulings has said the reason the fifth circuit reached that conclusion i believe is based on a faulty line of cases that have developed over many many years and that starts with a case where the fifth circuit was analyzing the term offer of a california statute and they found that the california statute was too broad then when the issue was presented in texas i mean i'm still before the fifth circuit but regarding the texas law instead of analyzing texas law the fifth circuit said we've already ruled on this issue we've already said offer is too broad but they never considered texas law on how texas interprets it they just felt they were bound by another panel decision and in fact by law they i thought but what they said in price they said in texas possession is not required it can be a mere offer to sell if possession were required it be ok but i don't think that's accurate maybe i'm not maybe i'm not understanding your question here that's it that's it i thought that they were hung up on whether there was possession but you think they're not i think they just need i think texas requires more than just a mere office maybe possession if you have the drugs in addition in possession and in addition to offer that that would be sufficient i don't may proceed with rather thank you i want to start by talking about maldonado judge benton you asked about that case that is an eighth circuit opinion that determined that in the states that they looked at that that  statute required more than a mere mere words in fact the court found in maldon out of that the statutes didn't even include the words offered therefore and that was how that's how  distinguished in this case i did look at the jury instructions and i think they are helpful in determining what is required for a jury to  find the jury instructions in missouri disc describe that the jury has to decide whether the defendant defendant distributed delivered or sold the drug a drug and then if requested the definition of sold or sell has to be given and then you get down to the definition which includes offer therefore so the instructions i think as i said support the argument the first one requires intent though in the very first it does require s it requires knowing conduct but i can knowingly offer you drugs i can know that i'm telling you that i'm offering you heroin without ever having the intention of the ability to deliver those drugs to you i can make that fraudulent offer but it can also be a knowing fraudulent offer i want to also mention that in hendricks as i as i indicated he did that conviction remained intact the missouri supreme court and the judg and it doesn't mean though that they decided every issue that could possibly have been raised that's true but they also did not ask for additional briefing and they didn't dismiss the case for inadequate briefing which case law allows the supreme court to do so alternately only did dismiss it you know the case was dismissed for an adequate briefing right that's had no two three and four of the opinion although at the end of the the opinion it says affirm doesn't say just met yeah  had no it's part of law and i think you have to go by what the court did and they say i don't view it as a dismissed case because the court affirmed the conviction at that time and i meant the parts of the opinion where those numbers thing consistent with accurate quote calculation of his guidelines very well thank you for your argument thank you both so the case is submitted and the court will file an opinion in due course