good morning your honesty may please the court my name is colleen remain and i represent jason anderson and the appeal before the court today we are here today because mr anderson was improperly sentenced to fifteen years imprisonment as an armed career criminal following his conviction occurred back to back and i think that's part of the thing that me to look at is that when you are talking about the categorical approach the elements are really the elements of the offense   dealing in cocaine with the same informant confidential informant the argument is that we shouldn't even really get there i mean that is that is that is information that was not  part of the elements in the chip you know that were required for conviction and so when we're looking at whether or not they occurred on occasions different from one another to comply with the dictates of the categorical approach act definition of serious drug offense contant so your theory though is that money doesn't have anything to do with these offenses the serious drug offens the amount of imprisonment something involving manufacturing distributing or possessing surely the financing of it i can think of countless cases didn't solve transfers of money somebody the money person is in the business so it's hard for me to put under the somewhat more restrictive you that the ninth circuit took why that indiana statute just brings up to the front something that they are in for giving his giving someone else some money to buy drugs for him so he gave someone money you know the other person bought the drugs that the defendant and you know that that's in here and in the possession of drugs and we've and there's a fairly broad consensus among the circuits that put mere possession doesn't count the government cited to a first circuit case from twenty four twenty seventeen states versus mark herman and in that case the court looked at a statute that was titled trafficking where the individual where the you know the individual had to be convicted of possessing a heightened amount of controlled substance and you know the the read in implication was that it was for you know more than just personal use but they never had to prove intending to distribute certainly a jury could make that inference your honor but that and when we're dealing with a categorical approach in dealing with you know imposing this heightened penalty we need to look at what the statute requires and what the only answer to that is the only way that we comply with a prime didn't comply with you know this limited exception that was carved out  taurus and i understand that i guess i'm sort of still stuck on the idea that financing the delivery of the indiana statute isn't really just a subset of distribution i mean i guess you are having trouble being shocked about that you said i suppose i mean i have a i have a hard time writing the distinction between that and simple possession or just i mean buying drugs somebody could get  held to be and not under the statute and i think that when we look at the way this involving operates if we extend it past an elemental approach where in this weedy territory of looking few reasons first of all financing offenses do qualify as serious drug offenses second even if they did not the statute is divisible and under the modified categorical approach mr anderson was convicted of delivery not financing  and factor delivery and financing the delivery those are the only ways you can be convicted as far as what the definition of financing means i've covered this in my brief there is one indiana case that has  faced with this question and that case is versus indiana's i'm thirty four ne second eleven seventy six that case in fact said you can't be convicted of financing just for giving somebody money to buy drugs for personal use that might well qualified as it as a serious drug offense under the statute but you but it doesn't count anyway the defendant cites a bunch of cases in the reply brief those are all unpublished decisions and all but one of them involve what high says the statute is about which is acting either as a broker on the distribution side or giving a distributor money to keep their drug dealing going those are those plainly qualify as serious drug offenses so what would the distributor be doing with that might using it to transport the drugs in a truck or flying someplace but i think most of these things are things that get counted in federal law as brokering a drug deal somebody who doesn't actually hands on with the drugs but is  know sort of like the real estate agent right i'm helping you distributor because i know somebody who's going to buy drugs from you i'm connecting you with those things i don't know what it would involve your honor i mean the reality is that the statute is virtually never charged the defendant does cite to one case which act which i do wish to address which is keibler versus the state of anything that is an unpublished decision that predates tike that doesn't even deal with this issue it's not clear if the in that case the defendant helps his friend buy ten baggies of heroin and balloons of heroin it's not clear to me whether he says it is for his personal use that seems to me a large amount of quantity for personal use it's not clear because it's not what's at issue in the case what's at issue in th case is a double jeopardy question about whether the defendant can be convicted of both conspiracy and of the substantive offense and the indiana court in an unpublished opinion says you can't and so we're going to merge defenses and nobody raises the question of hey convicted that offense maybe he should be able go back into state court and say in light of hype i'm not guilty but that doesn't mean that the indiana courts believe that you can be convicted without offense so even though and there are i mean my points correct if you look at mulcaire in the first circuit if you elements rather things so well think again your honor i mean i think both sides i have to be frank here this is not an issue to rise under indiana law indiana doesn't take an element space approach to the double jeopardy clause indiana takes a fact based sort of supposed to really start with right we're supposed to look at the cases are supposed to look at the information or the indictment last week was to start with the text so if you look at the text which we put in the appendix in some circumstances if you deliver a finance the delivery on a school bus you're guilty of a great offense but if you manufacture or finance the manufacture of drugs on a school bus or in a park you're not guilty of a greater offense if you look at the statute it curiously greater it carries a greater penalty for for this is there some sloppiness in indiana want absolutely there is a sloppiness in indiana law why this doesn't matter in any indiana case that matters in federal cases and i don't think when indiana courts are making these decisions they're under what's going to binding indiana law this time from the supreme court duncan first state since one nine hundred eighty i q there's no way i can possibly like hand you two drugs at one time and be convicted of two offenses the any ice cream court has said you can't do that even if it's two different drugs so i can't hand you in my left hand cocaine and my right hand cocaine at the same time and be simultaneously convicted of two crimes this has to be one and another and i know there are members of this panel who disagree with  but it's the law and under hudspeth even if it's moments later before midnight and after midnight which i don't think there's any evidence that that's what happened here but even if that is what has and you're under hudspeth offense guilty and we'll just need the time to refrain from the second transact right right you need some time to refrain from the second transaction and and under the under taylor shepherd we can't look at the facts that would probably show something very different from that we can just look at the indictment we can just look at the change of plea transcript and all of those show these occurred on separate days september twenty first and september twenty second and even if they didn't the defendant has conceded that argument away in his response that yes aren't hasn't sought to retract that concession here nothing in contrast with our ears and like andy and so as difficult as that is i think that's probably cases like this demonstrate that the best answer is that if you know if you're if you want to show that they