offense for the purpose of the guidelines this is incorrect because the time that the defendant was convicted in massachusetts the method to use it drug statute punished among other things the possession with intent to distribute lo defendant massachusetts conviction was not a categorical match for the federal offense in the us was overbroad and should not have been counted as a controlled substance the result was a four point increase in the defendant guidelines conviction and compare that to the federal drug schedules at the time of federal sentencing of those youths how do you get if you turn to the text of the rule that the use of the word subsequent to sustaining seems to set up a chronology here when we look at whether at the commission of the instant offense was subsequent to sustaining to fanny convictions it tells us anything about the chronology your honor i think that federal sentencing we look at the state of the law and this is consistent throughout federal sentencing in various aspects we look at the state of the law at the time of the sentencing we look at the state of play at the time of sentencing what are what is the defendant's record at the time of sentencing not in time of what is the relevant conduct that occurred at the time of sentencing this could include post indictment conduct so the question is when do we think about what are controlled substances for the purpose of the federal generic in the answer to that is we look at the time of sentencing it will not make sense to create one rule that says look at the federal judge in or defense substances in the guidelines but then it doesn't tell us what content that has the guideline itself and then we have the federal drug schedule which exists not to flesh out the guideline necessarily but for purposes of defining federal crimes so presumably if your client committed the same conduct and was charged  federally the junk schedule federal drug schedule that we would apply in determining that conviction would be the old drugs right i haven't thought about that but i suppose the change in the truck schedule figures differently even if you're convicted of a federal offense that seems odd well i don't think so because if you think about it from him to a process known as perspective you  know what conduct is illegal when you're out there in the world what you can do what you can't do and so it makes sense to punish someone per for possessing with intent to distribute a drug that's illegal but for the purpose of sentencing it makes sense for someone to know what they're facing from the guidelines when they go to sentencing and therefore i think it makes more sense from a policy perspective to look at the state of the law at the time sentencing and charged with possessing a marijuana and it's a controlled substance and the maximum penalty is two years and i'm sentenced to two years so it's a felony conviction for possession of a controlled substance and then convict commit another crime a federal law that changes so that the maximum penalty is only six months and and then change is not taking marijuana off the list the changes shortened to senate so it's no longer a felony so i believe the supreme court answered that question with respect to the wave of the maximum punishment in a material case which says that in that context you look at the state of the law at the time of conviction i guess it was a state case that was and it was i'm not sure the rule would be any different if there were a prior federal well if neal isn't  prevail here because i'm not because i agree that you look at the state of the state law at the time of the state conviction which is what i'm asking the court to do here the question not addressed the big no because when you  serious offense is an offense to curious a fifteen year minimum sentence then we would apply act as fifteen year at the time of sentencing right consistent with your view so even if i was convicted of a offense that was at a ten year sentence at a time when aca treated that as a serious offense if by the time a sentencing act had been amended to treat serious offenses as  really i totally understand that the the tricky thing here is that the amendment here is not to the guidelines the amendment is to the drug schedule so in the accurate sample it's an amendment to ak itself and what i can't quite tell is when it's an amendment to the drugs get you all what that tells us about what was meant by controlled substance in the guidelines is that just out there controlled substance and then we look at at the time of conviction were things controlled substances then either one seems a plausible construction of the statute to me i don't know what we do  it you know what you're supposed to do i don't quite know but i can't tell between those two competing interpretations of controlled substance which would be better i don't think to neal speaks to that question doesn't speak to it no supreme court case speaks to it exactly although several circuits speak to it and they say that the guidelines to you may finish your answer the guidelines to find it better all generic offense and in this case that there are no more questions f the district court the st is the mcneil analysis that we have briefed and the nd is the issue that we touched upon in our response to the rule twenty ha letter discussing the circuit split on the of whether controlled substance offense in the guidelines must be defined with reference to the federal c s a the narrower basis for a house good i'm just a at the threshold of this court does not need to choose a side in that circuit split on that issue with neal answers the question with reference to the exact language that judge chaotic mentioned before which is the language the guideline to pay two dollars to asking whether the defendant can it at the instant offense subsequent to sustaining at these two felony convictions that qualify and that language presents a backward looking question which is the phrase used by the supreme court in mcneil which faced a backward looking question in language in the a c c a that asked if the defendant had three well we did raise it well but your honest kind of firm on any basis that's evident in the record we did raise it at the district court level not a diagnosis that was not raised in our brief before the court but if you can affirm on any basis that is evident in the record you could affirm on those grounds and certainly neither side briefs that particular circuit split issue partly  it's brand new and the government will be happy to address that in a twenty eight letter if the court wished but we do feel that mcneil is the stronger argument and then there were basis for a firm a if a person had committed a offense that had a fifteen year minimum sentence prior to that change in aca what was then sentenced question mcneill was the definition of act it was the same at the time of conviction as at the time of all of the change with state law but i'd be surprised if we wouldn't apply the act  not contain language that leads to a backward looking question yes it does it says prior conviction that's true but the term serious drug offense which is where you have the ten year  if you follow me that if if we did change the definition of act we declared a new actor not the old one what i can tell is given a controlled substance doesn't have its own definition if we accept that it's defined by the drugs  then why isn't a change in the drug schedule a change in the definition of controlled substance so we apply the new definition controlled substance just like me to apply the new definition of serious drug offense in act i guess the problem is that the the term controlled substance in the guideline doesn't say that it's a federal c s a it tops out that a law or state law but could i just i mean it seems to me that it's picking up  specific language you really have to think about what is the policy of federal sentencing i mean this is a policy question and isn't the policy the basic policy of federal sentencing is is to try to create as much uniformity as if you if you apply the law are on the date of sentencing then you're you're creating the most the most uniform environment that you can create for judges to sentence him but if you do what you're suggesting which is you sort of pick different points in time then you're creating disparate situations with respect to how defendants present themselves before the court so it seems to me that that that of the only applies if there is absolutely an ambiguity after looking at everything else and here i don't with respect i understand the hypothetical but there you're talking about federal law this was a change you have a state court conviction and the state court conviction in two thousand and fourteen that's what we look at there's no question there we just are now asking well what's the comparative or for the federal just to make certain point in my hypothetical there was no question but the state law was the same also all that change here is the federal law and what we're trying to figure out is that change in the federal drug schedule it's changing the definition of a controlled substance there because it was going to just like my or marijuana and that's that's what it was and then he gets convicted for marijuana and then the gardyn is changed to instead of saying heroin cocaine or marijuana i simply says heroin or cocaine and that's how to exist at the time of sentencing well we wouldn't count that prior conviction for marijuana because the guideline changed right and so if we read assume that that because c s o i agree with you that if there's a change in the language the change in the definition of c s o in the guidelines then clearly the sentencing judge has to apply the version that's in effect at the time of sentencing but the language we know  ward and ruth and how that you have to answer it with reference to federal law then we still get into the timing question that's time does anyone have any more questions