questions about that with regard to the initial challenge this is a highly technical argument i'd like to start out by just addressing what i do not believe is in dispute in this case because i think by examining what's really not disputed by the parties will will help explain why the enhancement should not have been applied in this case st of all the virginia controlled substances act controlled substance act regulated so that's the st thing i believe that's really not disputed in this case nd of all both both parties cite to sierra we believe here is important for different reasons however however virginia does not require and this is sierre does not require a defendant to have knowledge of the identity of the controlled substance that he or she possesses all it requires is that the defendant know or have some knowledge that that is a controlled substance under the virginia controlled substance that i did indeed of a specific type of drug is not required the government relies on to appeal to cases from this from this court they  were a lot more teen as versus sessions and forward united states versus fort both of those cases are totally distinguishable martinez involves the missouri controlled substance act which requires a defendant to have knowledge of the identity of the controlled substance they're charged with selling or intending to do so likewise court if you read that case it cites iowa cases and it cites jury instructions were there is a requirement that the defendant no i believe know exactly what the identity is i think it was methamphetamine is the identity an element though that the government has to prove in virginia we we don't believe that it is an element i believe that it is  debatable question based on the authorities before before the court i believe it's somewhat of a confusion question we contend it's not we believe what the element is is a controlled schedule one or schedule two control substance so if you're wrong on that if we define we decide that the government does have to prove in virginia that the identity or charge and prove beyond a reasonable doubt a specific drug do you still have an argument related to the fact that the defendant need not know what drug it is yes because that that and i believe that is the stronger argument because i don't believe there's really any dispute regarding the mens rea required to convict someone of the virginia offense the government they focus quite a bit on sierra and how ciera refers to the actress right yes that the government must prove the identity as the actus reus st of all i'd simply point out that has only to do with the penalty section and that same opinion states that the legislature intended to criminalize knowing an intentional possession of a controlled substance whatever that controlled substance may turn out to be now the government also seizes on this some federally controlled substance but we believe the authorities indicate otherwise mcfadden is a supreme court case obviously binding it indicates there is required knowledge that the drug must be a federally controlled  physical mens rea is the mental both of those are required to satisfy for those priors to constitute a predicate offense a couple of things i know i am in my rebuttal time now but just by to illustrate this point in virginia you could possess a controlled substance that would be a schedule six or schedule a schedule six class four misdemeanor you could possess that substance and have some knowledge that is a controlled substance it could turn out to be a schedule one or schedule two substance you could be punished by a felony and according to the government's logic that same advance could then be used as a predicate to enhance your your minimum sentence to fifteen years under the arm career criminal act so i believe that kind of illustrates why these why the virginia offense the requirement of mens rea a is essential it has to be proven mcfadden indicates that and for those reasons we think the the events are all over broad and should not count as predicate offenses i would like to revisit reserve whatever time i have left for my  may please the court then her spooner and states the finance ministry argument runs headlong into this court's decision in fine which explains how this court applies here involving language to or connected with drug activities and it's not the case that this means it's a strict liability offense in fact what bind him specifically says is that as long as the state law things requires the defendant to manifest an intent to enter into the dangerous drug world enter into the dangerous world of drug dealing that's what's required for from perspective of the mens rea so the the what we have here is not what we have in the enumerated offenses cause we're going to compare the generic offense burglary or arson or extortion to some state law fence in fact what we have here is a comparison only of the one with the only one to one ratio that's required is between the that is listed on the federal schedule and what federal what drugs are covered by the schedule for the state for the rest of the crime the rest of what's considered we look at involving and one involving what involving means is related to or connected with all that's required is that the defendant enter into the dangerous world drug dealing it's not required to be a closer fit than that so i want to make sure i'm looking at the same case you are said to be o u i you know who's got the case you know your  furthermore on the men's reappoint i think there's one sort of practical consideration or consideration it's based on the text of the statute that needs to be made there which is if this if the defend his position is right require that the court not consider many states drug convictions as counting in serious drug offenses because in many states there's not going to be a one to one match up between the mens rea that's required and the federal drug schedule it's not the case that many states have the drug the defendant must have the mens rea of a federal drug right whatever's listed on the federal drug schedules and then the act is whatever's what's in our schedules the only states that are going to count in that case analysis but that it was harmless there because the court had proof or the government had proved the nature and quantity of the of the drug which was an element of a crime by other evidence that was harmless airshows in nature in quantity of correct the category is schedule one schedule two drugs both of those drugs would fall into that category and for that we would point the court to howard which is an unpublished case but it's a case similar to a case this court relied on from his lastly with respect to the if the court were to find that that is all not convincing it's permitted by mathis to take a peek at the document a conviction and here i think it's relevant to look at those documents and they don't say as a defense position would once specific point that i wanted to mention about howard which is our case about the two different drugs that were in one pill this court relied on a similar case in martinez when it found that element schedule substance where lists of different kinds of different substances and different on and but the part that's consistent with what the virginia statute does here is that at the end further down in the statute and forward it's said in all other stats all other drugs i believe that was a case where they were selling something or it was like a fast it was a simulated drug transaction there's no question about identity it was a question of well we were trying to steal drugs we're trying to steal a simulated drug purchase without actually producing the drug so that's clearly you can see how that would be dangerous and how that my you might want to consider that to be a predicate in contrast here what we have  criminalizes a substance that is not even federally controlled so it is conceivable and i know these are all technicalities but this is the process we engage and it is conceivable that mr benoit could have intended to possess something or sell something that's not that really controlled and that would be used as a predicate and we don't believe we don't believe that's permissible as to howard that's an unpublished opinion to the extent this court can rely on it as precedent i don't believe it estab lishes that that the nature of the substance is an element that's really an issue about the unit or prosecution not not as to whether it is required element and language in howard with reference to that says they must only prove this goes but the person is aware of its illicit nature and character not that they have to know the precise identity of the substance finally in closing i would like to draw the court's attention to  respond to the point made by the government about the the a c c u using the term involved or involving yes i i don't they bino i believe is one of the key cases on involving so i don't know that howard relates to that but i think by him does relate to involving and what i would say if you look at the actual statute it says involving and you go on and then it says a federally or all that needed to be alleged for the penalty was a schedule one or schedule to schedule two controlled substance so that's that's another reason we believe or another consideration the court should look at is just the timing of the convictions were did not occur at