is mr chief justice and may please the court mr schuler has prior convictions for drug offenses lacking the mens rea element necessary to distinguish between blameworthy and otherwise innocent conduct in nineteen thousand eight hundred and sixty one state north dakota had dispensed with the element of guilty knowledge for drug trafficking crimes today florida is the only state lacking a guilty knowledge element florida's law is an aberration the question here is whether congress intended convictions under such an aberration a law to support the extreme sentencing enhanced men of up to life in prison under aka the answer is no for a variety of reasons st the state offense provision for sense a list of generic crimes which all include a mens rea element nd the text of the state offense provision itself implies a mens rea element irrespective of any generic offense analysis rd congress described the qualifying state offenses by tracking almost verbatim the language of the federal drug trafficking statute congress used the same terms and even in the same order as the federal statute we know that when congress transplants language from one legal source to another the language carries the also a with it and here the all spoil includes a mens rea element while tracking the federal statute congress used the term involving two sweepin similar crimes described with different terminology such as promoting producing or furnishing a controlled substance and florida uses the term cell which we agree comes under the umbrella of the term the federal term distribution finally since congress legislate against the background of the common law even in the sentencing context the requirement for prior conviction for felony offenses itself carries a presumption of mens rea or for all the serious drug offenses federal and state and shows moreover that the state predicate provision is often driven and not based upon discrete conduct or activities that's a summary of our argument but i can be more specific here we have a phrase manufacturing distribution possession with intent to manufacture a controlled substance this phrase corporators well known drug trafficking crimes under the federal code and very virtually identical language is used to describe the that the drug trafficking crimes under language to identify drug trafficking offenses and not discrete conduct or activities under the state offense provision the difference between the florida statute and the federal statute as i understand it is the will correct me if i'm wrong under the federal statute the prosecution has to prove that the defendant knew that the substance in question was a controlled substance whereas under florida that is an affirmative defense so if the defendant raises the affirmative defense then the state has to prove beyond a reasonable doubt that the defendant knew it was a controlled substance is that the the substance of the difference between the two well i think that's a correct conclusion based upon a florida jury instruction however even in florida even if the defendant were to raise that affirmative the friends a verdict of guilty would never under any circumstance incorporate a specific finding that the defendant had guilty knowledge because the florida law also places upon the defendant a burden of production of evidence and but if it if the affirmative defense raised then the situation is the same as it is under federal law has to be proven beyond a reasonable doubt that is a reasonable assumption but the florida supreme court has never actually ruled which party has the burden of ultimate burden of proof but in any event and i think it was an exaggeration to this a strict liability it may be an exaggeration it depends on  how one defines a strict liability crime if one says the elements of the offense do not include a mens rea element then it's a subject liability crime but many people think if an absence of what it is defending did we get the answer but the florida statute does not involve the same conduct be because the florida con the conduct in the florida statute does not include a guilty knowledge so the defendants in georgia in florida are not similarly situated and not convicted of the same conduct in these cases where your client was previously convicted of a florida drug offense did he go to trial or did he plead guilty no he pled guilty your honor all right s all those cases he pled guilty he could have raised an affirmative defense i didn't know what this was i didn't know that it was cocaine but he did do that no he didn't but as far as far as far as the categorical approach is concerned  it is not universal in the florida law that convictions require a finding of guilty knowledge i'm look forward to every new aka case because the distance between the law and the reality gets bigger and bigger so here we have somebody who has six prior convictions of either distribution or possession with intent to distribute yes here and i assume this is a state he says in a strange situation because he keeps selling a substance which he thinks is legal and cheap and darn it every single time it turns out actually to be something that is expensive and illegal he just keeps how does this happen to him i don't know how it happens to him but your honor i'm not trying to convince the court that mr schuler himself acted without guilty knowledge i'm trying to convince the court that as a matter of law he was not found to have acted with the knowledge and the court can presume however commonsense it may be do assume that he acted with guilty knowledge because the question of whether offend things for me part of what justice alito said i must say i didn't focus in on this the affirmative defense in the florida jury instructions the prosecutor bears the burden of proving knowledge of the affirmative defense is raised is that what your it i assumed if it was an affirmative defense that the defense that the defendant to prove the element  your honor there are two points in the florida jury instructions the st point cast on the defendant a bird in production of evidence then there's a jury instruction that the burden of proof falls on the the state however the point i was trying to make is that the florida supreme court has never actually ruled where the burden of  would fall all right now justice ginsburg said that there was a knowledge element i understood there was a knowledge and within just with respect to possession with intent to distribute correct that's correct the knowledge element with respect to a possession offenses of which mr schuler has only one is knowledge of the presence of the substance but in the florida jurisprudence under the chicago case the knowledge of the presidents is actually not it is a state of mind element but not regarded as a guilty state of mind because the knowledge of the presence is something akin to what your mailman has when he delivers a package to your door i'm getting now a little confused as i understood it your knowledge element goes according to the florida courts goes to possession with intent to distribute they've explicitly said you need knowledge that substance was cocaine correct not under the present law your honor ok so you don't need knowledge with manufacturing or sale you don't need knowledge that substance is a controlled at least that would be what's missing is that the defendant knew that this was exactly your honor i'm sorry i think if you can we go back to the the language of the statute in i'm hoping you can explain to me where exactly you see this knowing requirement coming from as i understand the solicitor general's position he says yes this is a categorical approach but it you know the the language of the statute just says an offense involving manufacturing distributing or possessing with intent and the word knowing is not there so you know the florida statute i think the solicitor general would say is a state law that involves manufacturing distributing or possessing with intent what's the problem there the implication of the mens rea element comes from two sources one is the language t preparatory language preceding the term involving and the nd is for the language that follows involving when congress said we want prior convictions for felony offenses i think that itself incorporates an expectation that felony offenses incorporate a mens rea element generally and after the word involving congress used the language that is parallel to the federal statute and that address statute specifically says knowingly manufacture and this state provision does not but that's priced what not only the state provision does not but this provision saying what the generally because it's a very general statute that could apply to criminal law civil law could apply to any word could apply to any phrase in the statute but the presumption of men's rights is a much more specific rule and where the a mission is specifically rights that is the specific rule that applies in this context and if the specific controls of the general in the law then this rule the presumption that men  counsel i think i think we'd all agree with you that normally an acquittal provision mens rea it would be something we would take very seriously but here and i think justice kagan is getting at it we have we've come two strikes against you one is that the federal statute that you say this language parallels and express includes the word knowing it's not here strike one and strike two is there is the word intent with respect to the manufacturer or distributing in the next clause so in the very next clause you do have a mens rail strike to what we do about that well your honor let me refer to strike two st if the government's position were adopted that intent element that you referred to would be stricken entirely from the statute because the government talks about approval of the white case from the from the th circuit i'm not sure i follow that because it seems to me that language would capture in code offenses right things that are completed crimes that involve an intent to do these things but not necessary completion of them i agree that the term involving may be broad enough to incorporate in kuwait offenses that because that's a part of the federal judge trafficking crimes which qualify correct but the government says a trafficking statute trafficking by possession of a specific quantity of drugs would qualify here because that necessarily entails an intent but congress my my friend from the government is writing the intent requirement right out of the statute because it's a plain text requirement and it should be found by a jury not by the judge in a federal sentencing proceeding let me try one more time i think the solicitor general would say that he has to show either a state law involving many facts were distribution or a crime involving possession with the intent to do those other things manufacturing distribution whether or not they actually complete the manufacturing or distribution so those two clauses would do independent work in the st one notably doesn't contain any mens rea while the nd one does but  the the the my for my friends argument would i would also be so broad an indeterminant that it would sweep in convictions for purchases of relatively minor amounts of drugs personal use quantities and my friend would be arguing that on the theory that a purchase of a minor quantity of drugs necessarily entails a distribution from the seller to the buyer but didn't congress get at that by the ten years of imprisonment minimum so that would weed out minor state offenses no your honor the specific example here is florida because even the purchase of personal use quantity of drugs is punishable as a nd degree felony by up to fifteen years in prison and i think it's probably true in a number of states as well and more broadly on your mens rea argument which i think would have great force if we were a florida court interpret in the florida statute and should we interpret the florida statute to require particular mens rea but that's not what the statute is it's recidivist statute in trying to prevent the possession of firearms by people who have prior violent offenses or drug offenses in congress because of the violence caused by people who have firearms and prior histories wanted to really cast a broad net with what prior offenses would be captured and would trigger a duty on that person don't possess firearms so they use the word involving so this congress is what your response to congress is objective which is reflected in the language to cast a broad net of what offenses might trigger the student not to possess firearms my response is that including us that offenses such as prescribed by florida does is not consistent with the purpose of the statute i think you express that the purpose of the statute quite well to capture the worst of the worst offenders but this florida is so broad that it would capture in the least couple will conduct captures persons such as a truck driver who's hired to deliver a drive a shipment from point a to point b and so this boat the truck driver knows nothing about what is in the shipment all he knows it's his job is to take it from point a that dirty trigger to point with that person i gather under florida law all of that that person would say he has the right to say judge i didn't know what was in the truck and then the government has to prove he did know ok so i guess the question for us is this seems much simpler that i don't know i may be missing something but go look further down the statute one of the things that comes under violent felony it says is burglary so they have a conviction for something and if it is burglary you know every state's have all kinds of set up so what you have to decide is this particular conviction fall within the terms burglary it has to be burglary so obviously you have to have a pretty good definition of what counts as burglary for federal purposes when it was the state that convicted him of state burglary but he doesn't see that in this part it doesn't say it is manufacturing distributing it says involves manufacturing or distributing which is much vaguer so if in fact florida law is not quite you have to know the intent it is that the burden falls on the defendant to say i didn't know what was in the truck and then the government has to prove it is that different enough from ordinary drug possession as it used to cross the country so that it doesn't involve drug manufacturing selling now i have to admit it sounds as if you does permanent criminal prosecution is so great that the defendant who is actually innocent may bargain away his affirmative defense for a lesser sentence and actually plead guilty the nd comment i have is that  distinction between is and involving is highly overrated because the term is was not the driver of the generic france out analysis and so it cannot be viewed as a prerequisite to the generic offense analysis the driver was the term burglary the court found that burglary was ambiguous did not knowing whether referred to the common law definition of the definition of burglary as it appeared throughout the state generally and congress settled on the generic definition in order to  further the interest in uniform uniformity of sentencing for the same conduct throughout the states that same interest in fake the uniformity of sentencing for the same conduct throughout the state narrowly don't construe it broadly this is unfair or through due process kind of problem more kind of problem but once you have the conviction and you have two other convicts you have three convictions then you know if you read federal law i shouldn't possess firearms or i'm going to be true subject to a severe mandatory minimum are you on because the points are you unfair or notice when you have those convictions even if you think those convictions are unfair that you shouldn't possess firearms but i think we agree here that the point that we're trying to decide here is whether congress intended this type of crime to qualify and there's very little reason to suggest congress did so one because it's such an aberration a law and two because the symmetry but between federal and state provisions provide let very little deference to the state in other words there are three points one it starts out by the manufacturing distribution etc which seems to parallel the federal statute two it says the definition of control stuff that has to be  punishable by more than ten years so the overall symmetry between the federal and state offenses affords very little almost none i would say discretion to idiosyncratic rules of state law thank you aca provision clause b two which uses is cause a two does not call for the generic analog inquiry that petitioner advocates that follows from the statutory text specifically the use of the word involving followed by a series of everyday action words not legal terms of art that denote complete crimes but is also fully consistent with this court's precedent petitioner's contrary approach would require courts to construct a complete generic version of each offense based on a fifty state survey of laws from three decades ago and then compare that generic analog to a particular state's offense at a particular moment in time to see if they match in every respect that approach has proven challenging enough for the union rate offenses in b to like burglary which w well established and relatively consistent in one thousand nine hundred and six it would be even more challenging for state drug trafficking crimes which in one thousand nine hundred and six were comparatively new and varied in multiple material way and it would increase the risk of arbitrary sentencing disparities arising from variation in ancillary aspects of state law like which side bore the burden of persuasion on the knowledge of the illicit nature of the substance in clause eight to congress chose a much simpler approach that asked just two questions to the state offense involve one of these activities and for possession of specified intent and did it carry a maximum sentence of at least ten years and that mirrors the federal provision in a one under that straightforward approach petitioners convictions clearly qualify and that approach cuts through the variation in uncertainty in state law like the questions that have arisen this morning about florida law and instead uses a broad range of conduct plus this ten year maximum penalty threshold to filter out and screen out it's true that there are substantial sentences although as the colloquy pointed out as we explain in our brief under florida law a knowledge of the licit of the illicit nature or lack of such knowledge is an affirmative defense so for an element that's not specified in the statute at in the federal statute at all the substance itself the defendant must either know what the substance is or know that it's a controlled substance but as mcfadden pointed out that knowledge can be shown by the fact of a prior arrest for possessing or selling that substance it's very unlikely that in receipt of a statute like this where congress is only imposing this enhanced meant for those who have multiple past convictions the congress was worried about the unlikely scenario where a person repeatedly sells an illicit substance believing it to be in the center believing it not to be a controlled substance we think that's just not a plausible understanding of what congress was getting at here so we think that for all the reasons we've explained in our brief you should not adopt a generic analog inquiry and the alternative fallback argument petitioner is offering today that focuses on reading in we think fails for several independent it's not based on it's not generally based on direct evidence isn't that right yes that's right and under florida law it works similarly that if you possess one of these controlled substances florida law and this is section eight hundred and ninety three point one zero one c allows a permissive presumption that you knew it was you were selling and that can be rebutted by the defendant so in the scenario where a defendant says i didn't realize that this was cocaine i thought it was powdered sugar or some non controlled substance the defendant can bring that in and we're not aware of a large number of cases that fall in this delta it does not seem like it's a particularly significant thing in in florida prosecutions but in all of ends it seems quite unlikely that congress intended the application of this recidivist enhancement to turns on those kinds of vagaries of state law and with respect to the mens rea or under the federal scheme are there a lot of cases in which a defendant is acquitted based on lack of knowledge of the illegal nature of the substance involved without actually testifying i didn't know that it was an illegal substance and i'm not aware of statistics on that it wouldn't at all surprise me if that's if that's correct but i don't have specifics on the frequency with which that occurs which turning to whether to read in a mens rea or requirement into a two i think there are three fundamental problems with petitioners argument here st the ordinary meaning of the words which this court in a elsewhere has looked to does not include an intent requirement certainly not intent with or knowledge with respect to the illicit nature of the substances the petition urges you to look to the ordinary meaning of manufacture and distribute in its reply brief and the ordinary meaning of those words does not pick up knowledge that the thing you're making or selling is illegal that i think his argument really rests on this idea that these are somehow terms of are or were in one thousand nine hundred and six and that argument doesn't hold water either the federal statute or has been discussed expressly imposed that knowing or intentional requirement in addition to using these words that's not only in the controlled substances act but in the other statutes cross reference in clause a to the import export act in the maritime statute all of them expressly impose this additional mens rea requirement at the state level there was variation roughly two thirds of the states followed what was then the uniform act approach of not express the requiring mens rea and while the other rd followed federal law and did express the included now congress is looking out at the landscape of state law in  i think it would be hard to infer that congress by using this series of words thought it was picking up a mens rea at that some states and federal law imposed expressly other states in a number of circumstances had read in based on background principles of state law but where the wor themselves don't carry that particular meaning and in addition states did not all use the same terms of the number roughly three fifths use the terms that follow the federal act a member used a variety of different verbs to pick up conduct in addition to the use or in replacement of these like give away transport pedal offer traffic negotiate and barter and the list goes on the point is states were not using these as terms of art when they were using different terms do you think congress since when did to criminal mailman's delivery or postal service delivery i doubt it but what you're saying is that and if there is a disconnect like i where we talked about using physical force and we said can't mean negligent force it has to be an intentional force similarly it seems not nonsensical to think that manufacturing one of the words of the california state manufacturing or delivering or possessing with intent to sell manufacture or deliver can't have some knowledge requirement because it ends with a controlled substance so how can you then you factures a control substance if you don't know it's a construal substance it seems like a nonsense word so a few different points on  that st florida law does require that you know the substance is present so it wouldn't be implicated here if you're a delivery person who's carrying an opaque sealed box and you don't know that there's cocaine inside i don't think you could be prosecuted under florida law because you must know of the presence of the thing regardless of whether you know its character so that's not implicated under florida's law but you think so i don't know why because under your it says any person who sells manufactures or delivers or possess or possesses with intent to sell manufactor words of labor so whether the box is so paying or not under the theory is your brisco leave it to me if it's a controlled substance in the box you intend to possess it so i think there's an important twist in federal and florida law here that explains where how that state would address this circumstance until two thousand and two the state courts had interpreted the statute to require a knowledge of the illicit nature the legislature overturned that and said knowledge of the illicit nature is not an element  it is instead an informative defense but that did not wipe out the preexisting requirement that you must know of the presence of the substance and the state supreme court confirmed that in an opinion in two thousand and fourteen in re standard jury instructions in criminal cases this is one hundred and fifty three southern rd one  two where they rejected change that would have suggested uncertainty about who needs to prove presence of the substance or knowledge of the presence of the substance because it points back to the case we cite at cannes saying look florida law is already clear on this all of that is about if we had a federal statute rea and knowledge of the substance don't you agree with that so we agree that ordinarily would read in a way you would presume men's wear requirement exactly how that would apply across the different you know so if you agree if this were a straight up isn't using the mens rea a for particular offense as the substantive threshold for how serious something is congress took a different approach that sidestepped all the variation in uncertainty in state law covering a broad range of drug trafficking conduct but only if the crime carries at least a ten year maximum sentence that's ten times the threshold in the violent felonies provision in in some paragraph b it's also the same threshold used in the federal provision a one that refers to any crime under the controlled substances act the controlled substances import export act in a particular maritime statute so congress is covering a broad range of conduct but using the punishment as a proxy for the seriousness of the offense and i think that fits together with the idea that congress isn't asking courts to read into mens rea into state statutes might have predated aca and determine whether they correspond in a particular respect to an element congress didn't mention instead congress cast this wide net with respect to conduct but used the penalty as the filter to screen out lower level but as justice ginsburg said and counsel said the penalty might not be that much of a filter given the severe penalties attached to certain seemingly lobel level fences and you can respond to that again sure it's entirely possible that states would impose serious sentences for those kinds of things we're of cases we're not aware of any other state that imposes this kind of penalty for this for this category of offense where it's an affirmative defense that you don't have knowledge rather than an affirmative element and i think the point is congress looking across the landscape of a lot of state laws in  a statute as being a serious problem i think the concern that congress had in one thousand nine hundred and six was look there are a variety of state laws that involve drug trafficking there's it's clear from the text of the legislative history that congress was trying to include those laws but rather than get caught up on exactly how each state to find it and exactly how they parse that is rare requirement how they grouped particular offenses which also differed and whether they used particular enhancements to get to the ten year threshold congress just took a simpler approach saying if it involves drug trafficking conduct and it involves a very carries a maximum sentence of at least ten years then we are concerned that your subsequent possession of a firearm on lawfully presents a sufficient risk that we need to impose a greater sentence i struggled with driving it respond i had two questions feel free to tackle mn any particular order you wish st what is your understanding of how the affirmative defense works under florida law there was some confusion about that in our earlier discussion as to who bears the burden at the end of the day i'd be curious to know the government's position on that number one and number two related to what justice so my i was asking you forget about florida law for a moment the word involves i think we do both agree is pretty broad word right everything in the world pretty much involves everything else some level of connection and what do we do about the fact that the statute would at least possibly capture a state law that had a draconian penalty for delivering a drug without knowing what it is i mean involves would seem to capture that colleague on the other side says there's a vagueness concern here that you're ultimately inviting a constitutional challenge so those two questions so if i can take the in order our understanding of florida law is that when the affirmative defense is invoked the burden remains on the defendant at that point to demonstrate that he did not have knowledge of the illicit nature and defendant who possesses the substance when that happens under age ninety three thousand one hundred and one c a permissive presumption is available that can be drawn by the jury it can be in the jury that the person actually knew of what it was they were then manufacturing and distributing if they had possession of it so that's our understanding of florida law i don't think anything turns on that here but that's that's how we understand it that you draw how do you draw a line you're free suppose a state legalizes marijuana but it has a criminal provision which says anyone who sells marijuana at a price that is higher than x you say he's committing a syria or lower than why is committing a serious of think you have to look to the elements of the offense as under the categorical approach generally so unless the statute that you're describing were divisible into a drug you sail your ideas so if you want to say op all agree whatever that if the statute is divisible and has one element one of states do impose an aggravating circumstance and there isn't that if you did that then this statute kicks in even though what he really did was make a price agreement he or he didn't get the right license etc yes i think that that's correct that that would that would fall under the federal definition then there is another way of doing it he says you don't have to go that brought it all he says let's look at the let's look at the real elements of the very comparable crime which is the crime of possessing a controlled substance with intent to distribute it a well known crime and he says looks look at those elements and by the way those elements everywhere but florida require the prosecution to come in you've heard the argument and to show that he knew that this powder was heroin so a few points of a state crime for possession with intent to distribute would be picked up under the plain language of the statute and the fact that states might or might not require additional elements doesn't change the meaning of the words or what tongue congress was trying you know of his that's general what i'm trying to do is to go back to the question i think justice course it was asking and say once we get in a definition of the word involved which is broader than the elements of the state traditional crime which every state has but one we've opened the door to all kinds of things such as economic crime which do involve but don't seem to be what congress is interested so if i can take on involved directly st i don't think it's that complicated of an inquiry just as this court explained in college where it said the involving clause was clear we look to the elements if they necessarily entail this conduct game over it's a straightforward inquiry at least in the mind run of cases now we understand there to be daylight between the involves clause and elements clause or something along those lines because it would pick up solicitation or financing offenses for example california's law section eleven thousand three hundred and fifty three dollars that makes it a crime if you hire a minor to engage in selling selling a particular drug whether or not the state has to prove that the drugs were sold by the minor you have engaged in conduct that involves distribution indeed that's the whole point of the conduct but at the end of the day whatever you think about the meaning of the word involves it's a problem for petitioner as much as it is for us he agrees at reply brief page seven with army interpretation of it and whatever he thinks about the word you still have to address its meaning on either theory the principal submission is about the meaning of manufacturing distributing and possess and and possessing those words all follow involves so on both sides theories you still have to figure out and i understand there's tricky sides tricky questions for the petitioner i think we're trying to substances that are used in the manufacture of drugs or the delivery of illicit drugs with no mens rea or just because we hate drug crimes and recidivists and those sorts of policy considerations how far out does involve go you know somebody who finances people who deliver drugs unwittingly they're investing in a legitimate business but it turns out that they're mules for for a drug manufacturer how i mean were you dissing could trace out quite dramatically at either end of of the spectrum before and after the actual crime quite far that's that's my concern so i think the concern would be addressed because it would only pick up state offenses whose elements as a categorical matter ensure none of this is the state offense is going to say anybody who finances anybody else who delivers a dru an illicit drug all right so there's there's many faction distribution right there in the statute but it is the defendants involvement is maybe three or four steps removed in either direction and a scene or after the fact when we do about that so i think the answer under it under the existing law is that if the state has imposed a ten year or more sentence and the defendant has three or more convictions under that statute yes it can be at ak a predicate congress used the substantive threshold of the penalty rather than trying to target specific conduct and to parse out exactly what cocaine on the side ten years now they could and that's that's a kind of far out example and what we're trying to do is since you've challenge everyone here to use their imaginations the suggest well he's saying the safer thing so i think is to not give a special meaning to involve but just look at what has been the traditional meaning of distribution with the intent to distribute  just put a friendly amendment to that i don't mean to prolong it but involved has to end somewhere along the chain right as some point you're going to say it no longer involves i would think a drug crime where is that is it enough for the state if the state just simply says some attachment to a drug you know fifty five layers removed and a drug was involved is that enough or does the government have some position on whether that might not be enough at some point in the causal chain it might not be enough at some point in the causal chain if you can't say with confidence that it ness that the elements necessarily entail this particular result that will don't like to see what i'm sorry go ahead with this it depends on the particular crime at issue and so there are for example state crimes where a trafficking statute where the highest level of the statute of the trafficking regime says that if you possess a certain large quantity of drugs we're going to infer we're going to conclusively presume an intent to distribute based on the quantity there that involves  intent to distribute because state law presumes that you have that particular intent so i think there are plenty of things that fall within involves that don't they don't push that outer limit no i take the point about the concern or stop right there right there what's the amount meaning let's assume that a states is you possess any amount oh of cocaine we presume you intend to distribute for the th didn't because the th basically said what involves has to involve possession with intent to distribute that's right and there and you can't read a presumption into an intent with with that so that you are how about if they lowered to four grams i think four grams is well within what most people possess with the use personal use but i think at that point it would be much more difficult to say that a state law is is presuming intent based so we don't read it literally it has to involve the district of possession with intent to distribute not a presumption for intent to distribute sure and at the end of the day that nothing in this case turns on exactly what you think the delta is between as an element and involves if you conclude that those are ultimately synonyms i don't think much would ultimately change we do think that the congress intended there to be some circuit is right right only because the state has used the label i don't think it's because the state has used the label at the th circuit pointed out that in the context of that particular scheme it was quite implausible that that the state legislature i think it was alabama intended that the highest level of its scheme not to become an ak a predicate and not to involve conduct that would give rise to this kind of inference even though lower level offenses did it's a context specific thing and we're not suggesting that this case turns on exactly where you draw the line whether where the  th circuit drew it or where the th circuit through it with respect to that twenty eight what does this have to do with the question in this case totally it's a totally different question the quantity of drugs from which you can infer that there was an intent to distribute what does have to do with anything in this case so we agree that the question here is much more straightforward and doesn't turn on exactly what you conclude involves means whether you think that a particular quantity can can be used as the basis to infer that  distribute will necessarily be upheld by the conduct or not the question here is simply are you committed ten you can be convicted am i wrong of possession with intent to distribute even a very small amount of drugs if there is proof that you intended to distribute it certainly that's right so that's a separate question of when you can when you can infer from a quantity of drugs that there was an intent to distribute you could have a state if we want to hypothesize draconian state law that says if you intend to distribute one gram that is that is a felony punishable by fifty years in jail that would raise potentially other questions but has nothing to do with the issue here that's exactly right here i don't think anything turns on exactly how far you construe that provision to extend and if at the end sort of the clear just to be very clear if you win here to justice leaders question the question of where to draw the line on state possession statutes would remain open for litigation of future cases correct so you will still have the question of what particular crimes necessarily entailed distribution manufacturing or possession with intent to distribute but that litigation in that kind of uncertainty is dwarfed by the litigation that petitioners theory is presenting which would require you not just to figure out what that specific thing means but the elements of the complete offense or each of these three offenses in one thousand dollars get in on your own so i'm sorry but i was just going to say you emphasize in your brief the difficulty of  just quote attempting to sooth synthesize generic versions of these offenses from the motley raw material of state and federal laws your office will keep that in mind the next time you urges to adopt a generic approach i thought there's not there's a material difference between state drug trafficking laws in one thousand nine hundred and six i think petitioner acknowledges and the offenses that congress recognized were sufficiently well defined in one thousand nine hundred and six that he could refer to them by name and understand that and courts would understand what congress was referring to particularly the awfully busy right what is a use are we going to you know what's our surance we're not going to have similar amounts of concern litigation about what's involving so again both sides have the same problem with respect to the word involving and the ordinary meaning of it as the court explained and how it is relatively straightforward and again you look at the ordinary meaning of these words the same as you did and was seen to look at use of force that connotes a certain amount of delusional conduct it doesn't necessarily mean no we're not going to the government has told us involved bartering it involves it's in the room it's somewhere in the house it's in the neighborhood that's a use of a gun what why are we going to be going down that road here i don't think that the language compels you to go down that road it simply tells you to look at the elements of the offense and determine whether they nestle it necessarily entail this conduct and in this case there's no reason to go beyond a term is japan and florida is the only state that takes out the entry forty nine other states and i don't actually know why it's why there would have been a fear of what other states were doing since most of them were adopting the uniform definition of manufacturing sale production and distribution so yes there might be production uses but i'm not quite sure what the worry on your part is also i think if i can challenge the premise about what was clear in  address different enhance so right now forty nine other states include we're not aware of any other state besides florida that has emphatically rejected this this knowledge requirement as florida either as expressed or implied correct we're not aware of  state that falls in that category and i'm not certain that it's clear in every state to the extent the petitioner is describing what point of the statute is to tell people who have these prior convictions not to possess firearms exactly the point of this enhanced provision is those who have in florida with or who have prior florida offenses who congress didn't want to possess firearms that's exactly right and so the idea that we would read into mens rea after these already completed crimes is just detached from congress has a purpose here which is to impose a sufficiently serious sanction on those who in congress's judgment pose an increased risk when they possess firearms because of their history of repeatedly engaging in drug trafficking crimes or violent felonies that carry significant penalties and it for the case of drug trafficking crimes a ten year maximum sentence or more if there are no further questions thank you counsel mr schumer five minutes the purpose of the statute is not exactly to tell people who have prior convictions not to possess firearms the purpose of the statute is to identify those people those felons who possess firearms but who would also deliberately use those firearms to harm other people as as of course they in big a identify the people who are likely to point the weapon and fire their weapon when you have the statute that criminalizes the truck driver who doesn't even know what the substance is that person is less culpable that person does not have the motive or the intent to defend this unknown substance by violent action or by use of a gun to the extent that the court is concerned about the scope and the effect of the term involving i think this court should be guided by the interpretation of the rico statute in the scheidler case there the statute prescribed acts or threats involving followed by a list of crimes such as murder kidnapping arson and extortion and in that context the court said the term extortion must be regarded in its generic sense and to the extent that there's still any lingering ambiguity about the scope of the term involving the legislative history that we cited in our initial briefs shows the intent of congress when congress drafted this day offense provision the history shows that congress intended to add offenses not conduct not activities but offenses described generally which translates to the generic sense and i would also  point to this court's of moncrief decision when the court was confronted with language such as illicit trafficking in a controlled substance the court said illicit illicit trafficking in a controlled substance is a generic crime compare that to what we have here phrases such as manufacture of a controlled substance and distribution of a controlled substance these phrases even more specifically describe generic crimes there congress uses crime was described as sexual abuse of the minor and that crime may not be clearly defined the model says look to a related federal statute now if the court still thinks there's ambiguity about what manufacturing of a controls that means or distribution of a controlled substance means begin by looking to the related statute for how it defines the crimes and the related statute here is of course the federal  those factors contribute to defer to the finding of the definition of what constitutes the generic federal crime if congress had before it when it drafted this provision of aka these two models of the several model where are the prosecution has to prove that guilty knowledge of the nature of the substance and the florida model which differs only in that the defendant has to raise this as a an affirmative defense has to say i didn't know that it was an illegal substance congress would think that there's enough difference between those two models to say only the former is included and not the latter i think congress yes congress would have decided the law is so overwhelmingly of in favor of mens rea element that's what we generally would contemplate any practical difference between those to you know i don't see it i don't think very many people are going to get convicted get acquitted under the federal law and lesser willing to stand up and say i didn't know this was cocaine in which case the two things are exactly the same well your honor i respectfully say that you're giving sure shrift to the general and require my time's up maybe you're giving general short shrift to the significance of jury finding if a jury does not find as it does in the florida law that the defendant has engaged in blameworthy kong conduct the court in a federal court in the sentencing proceeding should assume that the defendant did not have that guilty knowledge because the federal sentencing court cannot make that finding for the st time in a collateral sentencing proceeding i thank you very much t counsel cases submitted