a peace accord seventeen carbons twenty one hydrogen atoms or nitrogen oxide coke blow dust snow crack this is a case about cocaine this is also three as a result all species of generic cocaine are still cocaine under state law but not all species of cocaine defined under state law all match the generic definition before we discuss the precise nature of these distinctions a bit of history is required and the endeavor of defining controlled substances in order to prohibit their possession and distribution state legislators and illicit drug makers continuously race to outwit one another creative designer drug makers concoct variations of prohibited drugs by altering or modifying slightly the molecular structure of those substances state lawmakers are left with two choices they can either list these additional variations as substances themselves or they can define the drug under state law all more broadly in order to encompass these variations at their possession the state of texas chose the latter with regard to cocaine the reason that texas is definition of cocaine is broader than the generic definition under federal law is precisely to prevent such designer drugs the state specifically includes an additional isomer of cocaine that is position isomers that are not included under federal law federal law perhaps defines cocaine as to prohibit cocaine it's salts it's geometric and optical i isomer is a substance that shares the same chemical formula in the same molecular weight but has some sort of alteration in the way the molecule looks or is shaped an optical isomer is an isomer in which the molecular arrangement is a mirror image of the original where you end up with the left side of molecule or right side of the molecule is an isomer in which one part or branch of the molecule is flipped such that it either is opposed to or aligns with the original those are the two types of isomers included in this the federal definition of cocaine texas adds position isomers position isomers are isomers in which the structure is changed but the components the recipe for the formula remains the same for example on a shaped benzene ring you could have the st position an item that is attached to the st position of the ring switch to the nd position or the rd position and that would be an example of a position isomer we know that position i omers ahead cocain exist in addition to the example provided of scope column e v we submitted a twenty j letter that adds alpha cocaine which is a position isomer of cocaine and has been using research has been because we know that the state specifically under the black letter of the law all prohibits the possession of position isomers of cocaine and treats it as a subspecies of cocaine we know that the definition the state definition is  overbroad to the federal definition it is not a categorical match then we turn to the question of whether or not the definition is divisible we know that the state does not treat these different species of cocaine separate crimes and we know this because of texas case law and evans v state the texas courts upheld the conviction and which a defendant possessed different species of species of cocaine add the weight of coke of salt of cocaine to the weight of cocaine in its regular form and order to determine the appropriate penalty range the state would not have been permitted to do this if these were separate crimes you couldn't for example aggregate the weight of heroin to the weight of cocaine in order to come up with the appropriate penalty range because they're separate crimes because the state routinely treats and does not distinguish between cocaine hydrochloride which is assault of cocaine and cocaine in its pure form we know that they treat each of these subspecies of cocaine the same these are manners and means they are not  separate crimes are elements the case from which the respondent rely are taken out of context wilson chillan pendergraph do not stand for the proposition that the government purports to present wilson jaylen and pendergraph are all dealing with a situation not in which at isomer of a substance has to be plugged in proven they're dealing in situations where the state has chosen to charge a different name for substance that was not in the list itself for example wilson deal with the substance phentermine in phentermine was a prescription drug it was a drug that was specifically listed under texas law under the dangerous drug act but for some reason the texas latest legislature failed to add it to a penalty group because it failed to add this substance to a penalty group which had previously been a misdemeanor the state began to prosecute it as a st degree felony under penalty of one as an ice and learned of methamphetamine because of this the l take these additional steps you have to describe how it relates to what is listed on the list and you've got to prove that so for example wilson discusses another case in which the state alleged the defendant you've got to show how dumb are all st of all i got to show you going to say deborah is maturity but then you also have to prove the general isn't a parody has nothing to do with whether the jury has to agree that the substance was in the in the situation of having a case in which that how that occurred however we would ask the court to consider the dissent in that case and i believe that the dissent correctly identifies the limitations but if we understand that majority we understand that we're poor stuck here with on back majority and castillo rivera however we believe that there are more than one way to satisfy the realistic rabbit probability tests where you don't necessarily have to show a case if you're in a situation where of cocaine salts of cocaine are included in the definition of cocaine and so are isomers texas the problem is that texas law under the under the definition of cocaine the state of texas has no incentive to test for isomers it's expensive gas chromatography isn't expensive it's a burdensome process and if these isomers are all included there is no reason to test all you're going to test for is the chemical formula that chemical formula is the same whether it's a salt a position isomer a geometric ice or an optical isomer is going to stay the same c seventeen h twenty one in four that's all that matters for this for the for the state that's all that matters for the defendant the defendant has no incentive of case law with regard to cocaine in the state of texas does not accurately reflect the manner that the drug is prosecuted in now where the black letter of the law shows the states intend to prosecute and it shows that the specific isomer was thought of it was in the mind of the legislators and it's present in the statu and and the government has not found any cases indicating as such accordingly because because what we have cases where they just take the aggregate weight of the cocaine went down specifying what type of cocaine state this actually discussing in the same manner isomers of cocaine but but what i'm asking is if they get to just take the aggregate weight of the cocaine without specifying what type of cocaine it is and how can we say they're not prosecut most everything are kind of cocaine and they don't specify so how are you ever going to tell whether texas is prosecuting the words it takes it would have to go read the federal i've got the same problem with this you get the texas practice on criminal law which talks about an indictment when indictment and indictment has to include and it says an indictment need only allege the name of the substance it's all that's all it is that i'm going to say cocaine and there is the indictment and there is a conviction there's just no requirement of any specificity so for you to argue that we lack a case where been a specific determination about position isomers we can anticipate that we will always come back those cases because texas have no incentive to be specific about the type of cocaine so i don't know i don't know where they'd ever get a case but i don't know what would ever stop a prosecutor from getting an indictment based on cocaine and not even without spec without ever having to specify the type of cocaine i'd always just say cocaine and that's all i had to split on on the question of whether we need to apply the realistic probability test to officially overbroad statute and by our count we have five circuits agree with the dissent in c by it i'm not pretending that we're not but i'd like to go out on the limb and suggest some flexibility in the realistic probability test and maybe we can focus on the goal rather than the method the method of pointing to an actual state case applying a statute in a no engineering manner is flawed and and particularly as it applies to this case it's flawed we already discussed judge dennis your his concurrence as to why the really realistic probability test is not adequate to the task of sussing out the actual realistic probability of how texas would apply its statutes he says suggest maybe how we can get to realistic probability when looking for specific prosecutions doesn't help you agree that the radical possibility doesn't get  read more power possibility i think i think more and more appropriate and castillo than it is here i think it is more appropriate to guess do than it is here because for the reasons judge graves pointed out looking for cases is not going to establish whether there's a realistic possible probability of what texas does with its statutes because no no defendant is ever going to have an incentive in texas to say well no  wasn't it wasn't crack it was powder cocaine or no your honor it wasn't it wasn't a nice summer of cocaine it was actually coca leaves or any of the other things that are that are included within the broad definition of cocaine they would never have an incentive to do that and so a case like that is never going to rise up on appeal and we're not going to find it but i do want to suggest two ways that maybe we can establish the realistic probability of methamphetamine and the night circuit released this decision as a presidential decision and then it later with the drew the decision and it released the same decision coming to the same conclusion as and on presidential decision and the reason that the th circuit did it was because they weren't sure whether a geometric isomer of methamphetamine actually exists and they wanted to leave that open for future litigation so maybe one way that we can look at probability in this case is to ask do positional isomers of cocaine actually exist will they do we know that they exist so that's one way another way is we can ask whether there is other indirect evidence that the courts prosecute crimes in a certain way for example in this case the question is do texas trial courts really treat different kinds of cocaine is different crimes amount of time and we've already discussed the aggregation of the different substances just one thing really quickly opposing counsel said none of those cases mention positional isomers but there's no reason why positional isomers would be treated different from from the pure cocaine the crack and the and the powder cocaine that the sort of cocaine there's no reason they would be tre