fact show mr get good in years had no prior conviction for any drugs and yet the district court upwardly varied from the high end of the guideline range and in doing so said it was because the instant crime was the same as m that's appendix page forty four so we have multiple references to drug sales but the fact is that the p s r demonstrates there were no drug sales that were bases for convictions in the past the p s r of paragraph sixty shows that there was a conviction for an ohio drug offense for possession and therefore under this record we think that playing areas usually established because by relying on incorrect facts it was an error the  infer that because it's not an element if the ohio prosecutor wish to charge distribution there's a distribution statute in her hair under a statute that involves the word involving for the enhanced penalty yes for distribution intent to distribute it is your honor because now we have different set of problems so if we're given expansive read the word involving we have basically written into the statute something that congress hasn't put in there in section one hundred and twenty four dollars so congress perfectly capable of drafting laws that would have included possession by having involving possession of any quantity perhaps but we've got no gate we have no limiting principle now either because the quantity that now triggers this involving gloss is unknown so how are we as district court judges to find out which quantity suggest intent to distribute which doesn't and furthermore for the eight hundred and fifty one i think that we have been a pretty problem because now we're relying on some thing that my client didn't admit you're int ting as a district court judge some additional conduct intent to distribute based on quantity i think that we're going down a very deep hole on this judge to reach this where simply we're supposed to be looking at the statutory language applying a categor approach and when we do so we see that the elements of the ohio fans do not allow us to resort to a conclusion rather reach a conclusion that says that this involving would be sufficient to trigger the enhanced penalty were multiple problems with that they're mostly laid out in our twenty eight dollars j filing but i think that they're all significant concerns if we're to adopt the government's interpretation of what involving means then i think that we france lawyers characterization well he was a drug dealer in this case and in the prior proceeding whether he not he was drug dealer i don't think that we can put much stock on that judge so if the it is not something that is strategic it is something that is simply a mistake and if we were to stay true teacher he was making the argument that he was already being that his prior drug sales were already accounted for in the guideline range right that's right but it's on the assumption that there's a valid eight hundred and fifty one dollars judge in mind i mean if the court because the p s r in this case was prepared many months before the st step act went into effect so the change of law is something that nobody caught and so i don't think that there is a valid strategic argument anymore judge hamilton in light of the fact that the st step back changes what the statutory requirements are the lawyer missed something don't and i don't think it's fair to say that's now strategic when nowhere with that recognition but the statute now requires in the st step back what ever agree that this is some qualifying conduct that should have resulted in the balance the fifty one the lawyer simply would not have made that argument the district judge here though knew what he and drug sale and it's just not the case that the ohio conviction you can look at it the copy the judgments public record but it's not for drug sales it is possession what are we to make of  what constitutes a serious drug offense i would start with the language of the statute and so i think the court will do that as well and interpret what the serious drug offense is now we are to look at manufacturing distribution possession with intent to distribute if we are to accept the government's argument about involving means that it's much more than that and i think it means everything and it then is unknowable and then i think that we have a problem about the vagueness of the waffer to go with an expansive reading like that i think that's counter textual as well your honor so so we couldn't rely on a case by case analysis based on prosecutor to make that decision ultimately how as a judge to interpret the language if there's a certain quantity of congress hasn't told us what that is that now triggers this involving provision that we probably don't have a rule of len y issue that bends in favor of the defen this court should affirm because the defendant is two thousand and eight a high of conviction for possessing a controlled substance qualifies as a serious drug offense or a drug felony as defined by the newly created section fi and eleven c four after in the context of the overall statutory scheme demonstrates that right which includes by the way it carve out for personal simple position or simple possession for personal use that is not applicable to the particular offense that the defendant committed it demonstrates that what we have here in terms of the defendant's conviction is not a conviction for simple possession or personal use or anything of the kind rather it is a conviction for possession with intent to distribute even though the specific formal elements of the statute vision do not of ten years and they only got seven it does if there's a couple of different aspects to the provision as i understand it and one of them is that it includes a designation as a serious drug crime the language used when that does ignition is applied then there's a mandatory minimum the full amount and when that designation is not applied then you the defendant is subject to a maximum part of the reason that i'm reading it that way and understanding that that's a possibility is based on the documents that related to defendant specific conviction and that was from those documents i can read and i'm not sure now i'm standing here wondering whether those the documents that the court's been provided with whether they were attached to the p s r or not and i'm concerned about that but if they were not and you have not seen those documents i can provide those to you and apologize for that but it is my understanding that in the defendant's case he received a seven year statute which was within the three to eleven year statutory range that reports that it was ten kilograms rather than seven so there's a little bit of a discrepancy which was not corrected because that was out presented this record as far as i know in the documentation that may be the product of documents coming be specific about what happened there i just know what i received you know at the end of the day and i thought that those documents were incorporated into the p s r and if that is a mistake on my part and i apologize for that and i will present everything i have to the court could you address defense counsel concern about vagueness if we go with straight possession counts involving large relates to what what amount would be considered what quantity would be considered a distribution quantity sufficient to trigger i do think that there is a potential problem with that in  the context of other statutory schemes for you know that i've reviewed i mean i've looked at all the statutes now but in this particular one i think that you're talking about somebody who was convicted under a provision or was charged under provision as i understand i believe convicted under a provision that requires a minimum of at least one hundred grams of cocaine and more and potentially more i think fifty five thousand five hundred dollars and my understanding of that is that that isn't that's not an arguable quantity for purposes of determining whether something is a distribution quantity where you get down lower you know and you get closer to into smaller numbers maybe the rule of law to be kicks in and that's not something you don't want to do but i do think that the statutory provision provisions and structure that's involved in this particular case is well st of all it is rather unique in that i one of three ohio is one of three states that provides nothing there are no provisions and it's in it's controlled substances scheme dealing specifically with possession with intent to distribute so it is it is necessary that possession with intent to distribute is incorporated in you know one side or the other of their of their or in one of the positions not the specific one this this specific question as i understand it is the st of its kind that is six circuit is looked at at the statute and has looked at other aspects of it including provisions yet but they have addressed the they did address the prior one and as your honor says i don't think that and as to the vagueness claim if i had my opponent i don't think that the involving issue as he describes it is is really the bogeyman that he suggests given that the statute itself i mean there are a lot of defining pieces here i mean it can't be anything that vaguely involves it has to involve the specific things that are listed in the statute including which includes by the way possession with intent to distribute and what we're dealing with here is a the possession of a distribution clearly a distribution quantity of cocaine which it is universally understood and agreed is and says that that doesn't apply where it's a st nd or rd degree felony that you're dealing with and a st nd and rd degree felony is determined based on drug quantity and the statutory structure also demonstrates that the same exact penalties are provided for distribution offenses and possession offenses where the drug amount is the same and so what  you have here is clearly a statutory scheme that does not involve simple possession as kind of a lesser included offense with respect to all of the possession offenses clearly it has it it does it deals with those and and with respect to a certain categories that is not involved here but where you have a distribution amount of drugs there is there is no carve out possible and the  penalty is precisely the same as it would be so if you were to view the statute as operating differently and say that all of the possession all of the possession offenses are out because there's no use of the term intent to distribute in as a formal element if you were to do that you would wind up with it as we say in the brief anomalous result which is that you could distribute a small amount of drugs and get a higher sentence than possessing obviously inferentially with intent to distribute a large one and that makes no sense that's inconsistent with the way this the statutory scheme is apparently intended to work so this i mean this is an application of the categorical approach this is not i mean we're not arguing we haven't made any arguments about the specific conduct involved and the defendant's offense is very much a categorical approach looking at the statute and the meaning of the statute and comparing that to the definition of serious drug offense that's provided by the federal statute a public record thank you as for some other matters ohio has a drug trafficking statute or my client wasn't charged or convicted under it for the government's effort to say about what the statutory scheme is meant to do and to punish offenders of a certain type that is fine but we never last are as a matter of st obligation to look not at the scheme but at what the formal elements are at the trigger the basis for the enhancement under nine  dollars and for the government to argue that the convert the conviction here should be seen as a possession with intent based on the quantity despite the lack of formal element i think j what we've known as the categorical approach that says look those elements we cannot into it usually what quantities trigger this involving argument of the government's i think that is a significant problem here in the court would by accepting the government's argument really open the door for prosecutors to charge all defendants based on possessions and quantities that we don't know what the intent was to say that that now triggers the fifty one and statutes are not supposed to work that way they're supposed to provide people with notice so we do not have unfettered prosecutorial discretion to file eight hundred and fifty ones congress has reworked the statute has created something different than what existed before when it impacted fair sentencing act and the government's interpretation is essentially lifting any limits from what congress imposed finally  are and can be advocacy pieces we cannot take from police reports very much we should in any that look to what the evidence is of the elements in the statute look to that not to the police reports and when we do that i think we're left with the conclusion that under the plain language of the statute possession does not trigger the enhanced penalty provision and even if we didn't want to decide that today we can look back to the st point and leave that for resolution in the district court in a more developed record because we can say that there were not multiple prior convictions for possession with intent to distribute any drugs that were not prior that involve multiple drug sales that is a clean route send this case back and then this matter can be developed fully and i think that would always be favored as opposed to any sort of incompleteness that may plague the courts present decision nothing further thank you government counsel