good morning your arse maybe hang on our second we need to know are you going to be a council table still ok never mind i'm ok go ahead please good morning honors and may it please the court my name is nathaniel salmon and i'm appearing on behalf of the petitioner ricardo in this immigration case brought a number of challenges to the board's decision finding him convicted of an aggravated felony both for remove ability and eligibility for relief but given limited time for  argument petitioner would ask that the court focus its inquiry on the question of visibility because even assuming without conceding a valid statute of conviction for the trafficking in cocaine offense under idaho code section thirty seven twenty seven thirty to be a two day under mathis so that context eating you're not saying it's true but you're conceding for argument not conceding just assuming for the sake of argument right and so i think you're good to go there ok or just say and so following mathis that is an overbroad statute and an indivisible statute but the petitioner visible it's not visible because mathis teaches us the new frame not a new front but a clarified framework for determining visibility and we start with state case law and what else we've said we've talked about this is pretty carefully too and we suggest that we look at the  records of conviction first let's look at the documents yes and i look at the indictment the diaper and seems to suggest it's divisible it only suggests knowingly delivered doesn't list any other alternative elements the other elements obviously could have been suggested following the statute but it went right to delivery so it was really saying there are more than one element i understand your honor mathis clarifies that the order of events that peek at the shepherd documents is a third step well to consult let's go to the jury instructions we go to the jury instructions we have t under idaho law choose possessed or manufactured or delivered they picked delivered that says that they added the visible statute i would respectfully disagree here on a bracketing injury instructions does not necessarily indicate a requirement for jury unanimity but if you read the jury instructions and i don't know and they bracket that it says you've got to pick one of those under which to go well you could pick one and it could fit in with a theory of a factual basis or a prosecutor's case without being an element that a jury must unanimously decide and i would note that the jury instructions conspicuously omit the conduct referred to as bringing a particular substance into i think that's a great thing for you to argue about but i think that goes back to whether we can really convict or we can really apply it because if i can get to the modified category  which is where i'm going if i'm going to say is divisible i'm going to say they ought to look at the documents then it seems to me your argument about intent and all of that stuff makes it such that i cannot say looking at the documents that he was convicted of an aggravated felony mathes teaches us that recourse to the shepherd documents is for the sole and limited purpose of determining what elements are because the categorical approach is  thirteen cautions about reaching a conclusion basically on sheppard i understand that's why i didn't use just a separate documents but i got a statute that says and i quote knowingly manufactures he delivers or brings into this state there's three or knowingly in actual or in constructive possession there's three for this particular statute you can either manufacture you can be guilty you can deliver you could be guilty you can bring into the states you can be guilty you can in actual or constructive possession and be guilty of this statute and they have different bodies for months there's not actually different punishments for god to conduct your honor it's with regard to the quantity of the particular substance and that is the same for regardless of the particular substance in the general trafficking statute when you look at the marijuana portion it's one years three years five years based on quantity when you look at the cocaine and heroin it is three years five years  ten years based on the quantity so under a printing we know for sure that quantity is an element because there is a different punishment based on a different amount of quantity in a journalist unanimously find that quantity if i look at  simple possession that he was convicted of with the phone that's correct because there is no federal felony for simple possession or godless of the quantity so under th statute statute he could have been convicted of a none of it is phony precisely because the conduct is invisible or really then looking at the modify whether we can get to the modified categor what i'm really looking at going back to divisibility if i look at just be eight the a two itself does not contain a trafficking element therefore cannot categorically be an agg felony on a categorical comparison so i have to go down only to be a two but i have to go to a the eight to would bunny simple possession and all of these give me the idea that this that  is divisible and i'm trying to move you even if i get to the modified categorical approach to lose i understand your honor it is a disjunctive lee phrase statute it does use or but mathis teaches us that just after how about we move on assume for a moment now that it is divisible and let's talk about whether we've got sufficient stuff under shepherd because i think we don't but that's a hint ok so if the statute is visible the court may seek recourse to the shepherd documents in the record of conviction and the only shepherd document here is the indictment the indictment is not expressly incorporated into the judgment of conviction and that casts sufficient doubts i don't even see representing the statute so i think you've just been indicted for something is not a crime under and write a whole law and he pled to it imo i'm finished it's entirely possible you're on a well not only that  guess i'm trying to look at it if i get the indictment and i read it as judge fletcher has and then i have the judgment it just says the statute with all the elements it has manufactured delivers brings right that's correct and so i don't think i even need to get to the moncrief young problem that is precisely correct your honor well that's why all right what about this idea that the government says i know doesn't allow amendments so i i do have to acknowledge that idaho has a different pleading processes but that i am also aware of instances where this conduct has been charged in what would otherwise be viewed as a duplicitous manner duplicative manner charging all of the conduct rather than singling out delivery for example as a particular factual basis  from the government because in my view the government has just lost and i'd like to hear their view as to why they haven't thank you if we find it is divisible which the court seems inclined to do then we go to the modify categorical approach and get to the indictment just a minute we have to match the indictment with the judge see in some way they have to bring lake to one another we have to make sure they will if they can and they can as judge fletcher absolutely said knowing an awfully delivering and or representing that he was delivery which isn't even a crime right that is actually case law driven that is not part of the statute so he wasn't convicted of something that wasn't a crime in idaho that would be unconstitutional he was i don't i develop case law that says that a drug dealer a trafficker in cocaine if you will they goes out with twenty seven grams of cocaine and says hey this is twenty eight grams if you want to buy it can still be convicted for trafficking and cocaine even though he's short changed his buyer so it's it's case law created that a defendant can still be convicted of trafficking in cocaine in twenty grams or more even though he represented that it was twenty eight grams but it didn't weigh that when he actually got it on the scale well the question then the big question for me was if i think about trafficking it can be any one of these elements and i'm only getting there and i am frankly helping the government's case by getting there by saying the statu is divisible and how my to determine what he was really convicted of well under idaho case law and this court case law you plead guilty to all the elements of the charging document so under idaho case law you plead guilty to all the facts in the indictment it's not like a people the leslie and in california that isn't what the judgment says though that there's been just says trafficking he says he could have pled guilty to possession would still have fled all the elements in the statute he would have pled guilty to all the elements of the charging document so we know by looking at the charging document that he pled guilty to delivering what they say this is not just sort of an empty formality of magic words we've got nothing here already says i plead guilty as charged all we know is that he planned right it says they as charged were missing but if you look at idaho case law they're pretty clear in that first of all you don't they don't allow constructive amendments you have to go to trial on the indictment or the state needs to go back to the grand jury you either have the good luck or the bad luck to be appearing before a very experienced i don't judge which is not me but that's missing and the problem that i have with it is when i read through it and i saw what was there i cannot tell what he pl to because you can charge an indictment for trafficking and in this particular instance it's or delivering an ar representing that he was delivering and you can make a judgment as trafficking and you don't know what he was really convicted of because you can convict him of manufacturing delivering bringing him to the state or knowing in the actual or constructive possession and i don't know and i tried to find something to give me some indication seems to me that if i'm going to follow my case law it is not clear and therefore i have to make a link and that but that would have charged a different crime no it would be the same crime it's just a different element so he he pled guilty to trafficking in cocaine he pled guilty under idaho law to all the facts listed in the charging document and all the facts listening the charging document is that he delivered cocaine so he we know that he pled guilty to the one count of delivering cocaine therefore if you had to underwrite a law whole law plead guilty to all the facts in the charging document we know that he pled guilty to delivering cocaine so trafficking by delivery i understand your argument whether or not you agree yes and if the court doesn't have any other questions seems that that was the so sometimes you can snatch victory defeat the judge victory understanding your honor the only case i would like to draw the court's attention to is that which was brought up in one of the twenty eight j letters which is that i don't supreme court decision in february