thank you the fundamental question here is whether the government thinks my client for a decade in federal prison for possession of methamphetamine without ever having to prove that he knew this  in his possession the government maintains that it doesn't matter if mr having knew he possessed methamphetamine because all the government machinery is that he knew he possessed some controlled substance but if you consider the fact that if he had just been charged with the marijuana found in the market he would have received a maximum sentence of five years and may not have been processed at all instead he received a mandatory minimum of ten years double t solely upon the possession of methamphetamine this court that sister circuits have recognized that the interpretation advocated by the government which results in the doubling of the sentence based upon the facts about which a defendant may have had no knowledge those elements that are required to distinguish between innocent and criminal conduct but that is simply too narrow reading for hive and it consistent with supreme court precedent in particular us before us figaro in which the court specifically thousand and fifteen u s supreme court case that that construed this section consistently with the way the government is arguing you know i think this court is bound to apply the have a sentence if you have a statute that includes a men's wear requirement our duty here is to consider how far down the statute demands where apartment apply and in this instance it applies not only to the possession but also to the direct object of that burn which here is controlled substance and based upon her hif what we see is that it's not simply these specific direct object but in fact what that object direct object is a placeholder placeholder for which burden of proof was with respect to drug type however it is different because it's providing us clear instruction on how we interpret statute and how we should apply the mens rea element with respect to statue i want to take a  the court yesterday this case came out of the th circuit it was decided on tuesday thinking the th circuit on bond had specifically and unilaterally requested briefing on the question of whether it was required with respect to drug type and forty one now the court determined that it did not but i want to point out the fact that the court was sharply divided on this issue and fact of the eleven judge panel five of those judges joined the dissent and there are two particular areas  that i want to dress because i think the court got the wrong st of all in many respects the clause or reasoning that majority provides is completely consistent with what mr mahaffey is arguing here and particular it undermines the direct object which was the controlled substance now where the th circuit erred was because it concluded that since the direct object wasn't literally a forty one b that it shouldn't apply to job time however what that ignores is the fact that the reference to controlled substance is simply a placeholder for the specific drug types outlined in a pretty one b the nd piece of the closet opinion was its determination that there was obviously you'd like the on back to set from the th circuit rather than the majority but we i mean we only look at the majorities a little more strongly do you have any authority from any circuit that supports your position honor no i know is sick since that case is come come down you say it abrogates prior case law you have any court that's that's filed your argument no i haven't but of course this is a very new opinion and so i think a provides the kind of culpability that is sufficient for the commission of the offense it's all part to all elements of the offense and it makes no distinction based upon whether or not those elements are required to prevent the criminalization of innocent conduct critically it also said that when as a matter of ordinary english we normally read the statutory term knowingly as applying to all the subsequently listed elements of the crime and critically that holding comes from for us to grow which i mentioned earlier which was a case in which the us supreme court specifically applied to mens rea a requirement but not because it was necessary distinguish between criminal and sin conduct another key peacher and another flaw of the government's argument is that suggestion that because mr mahaffey assume the risk of carrying some controlled substance he should be held responsible for the a crime suspect to any controlled substance but the government primarily relies on cases where the sense has been increased based upon the drug crime commission the morning your honour's ms akers may it please the court james chapman for the united states there are at least two overarching reasons that revise does not require this court to depart from its longstanding and repeated precedent that a forty one does not demand knowledge of drug type the st relates to statutory interpretation and the nd relates to the presumption in favor of israel that's your interpretation addressed  statute has a globally modifying mens rea a like that then that mens rea applies to the material elements of the statute here on the other hand eight hundred and forty one a one sets out very clearly rea knowingly or intentionally applies to the subsequent elements listed which are the verb in this case possessed with intent to distribute and then the object a controlled substance the text and the rea and i believe there supreme court precedent indicating that lower courts should not assume that it is overturning a prior decision without explicitly saying so so i don't believe the hive would have the effect of overturning mcfadden to respond briefly to counsel's florus figaro argument the th circuit has already held that for us figaro it does not upset this mens rea a rule as listed elements in the sentence forbidding identity theft it did not apply the presumption in favor of men's rights that statute was simply a matter of statutory interpretation and again involving not a persuasive reading of a statute on the issue of the presumption in favor of mens rea the supreme court has been abundantly clear in cases through many decades that this this presumption is really the fallback when the statutory language doesn't make it clear as to missouri and this fall back only applies to elements that criminalize otherwise innocent conduct and so the facts of raw hi this very very well mr hive had overstayed a nonimmigrant student visa and then he simply went to a firing range and shot two firearms for most people out there in society go into a firing range is perfectly legal conduct  people do it every day what made it illegal for mr hive was his status and so status in real life was the element that separated criminal conduct from non criminal conduct that is not the case here possessing with intent to distribute any controlled substance that's regulated under a forty one dollars is unlawful and so knowledge of drugs knowing what if you have marijuana or methamphetamine that does not separate wrongful from otherwise innocent conduct such that the presumption in favor of mens rea must apply to it i would as a final point i would point this court to its recent decision in kettles which we also cited in twenty gauge a letter  that case involved a sex trafficking statute and held that of course the defendant must know that the person being trafficked is under eighteen but then there was not additional because trafficking anyone under the age of eighteen is illegal if there are no questions i will rest the remainder of the arguments in my brief and ask for you to affirm thank you thank you honor i'd like to begin by addressing the kettle's case which the government just brought up i think it's important because the government relies on a number of these cases that involve sex offenses against minors but this court and its sister circuit have long recognized that such crimes where the they fence is a sex offense against minors have traditionally been accepted from background principles favoring cmdr so their application their guidance in the situation should be somewhat limited and i also want to address the government's argument that the because the specific language in these two statutes are identical that one can't be competent to another that simply has never been the case and i'm not asking  i'm not suggesting that the conclusion here is directed because there was because we're hafe address state forty one it's simply the interpretive reasoning that was used and should apply here because there's enough similarity between the two and i point out that the  the th circuit although it didn't ultimately determine there should be a men's wear requirement didn't reject that argument on the basis that these two statutes were simply too incompatible it's also important to remember that the presumption is the court held in led to believe that all he had was marijuana but if it turns out that that was methamphetamine instead of facing a mandatory five year sentence the sentence would skyrocket to ten years and the court has held that in such circumstances to avoid exactly that type of unfair result  fundamentally different criminal intent that someone who knowingly possesses a non lethal drug like marijuana which is actually illegal in a number of arts of our country and well of course that doesn't mean it's innocent conduct as i mentioned before the rogers the supreme court has typically thought of is falling into basically three buckets st there's the public welfare that's where of course measure is typically not required because the penalties are that means that the men's wear requirement applies both to possession and to controlled substance and controlled substance is simply a placeholder for those drug types which are contained in a pretty one the my client received a fundamentally unfair sentence here because he didn't know he had any drugs and he is now facing a decade in federal prison based upon that about which he had no knowledge even if the government could prove that he was aware of the marijuana in the back he still receives a sense double that without the government ever having to show