documents underlying his conviction to see whether he was convicted as a principle or whether he was convicted as a as an aider and abettor that the government believes it shows that he indeed possessed the drugs  with the intent to deliver when we look at the conviction documents in this case and this is excerpt of record page one eighty two the government site to the part of that record that says mr penny i was said that the court could consider the police reports in support of his plea the reason why he checked out boxes because he also checked the next box which says quote i do not believe i'm guilty however i wish to plead guilty in order to take advantage of the state prove that he possessed the these drugs when we look at the police reports if we really want to get into this we're going to see why the supreme court twenty six years ago in taylor said we're not going to engage in factual analysis we're going to look soley at the statute of  well they were at the time or they may have been at some time prior to the supreme court's most recent clarifications of what it meant and in taylor but i only mention those reports to show how unclear it can be about what the culpability is of an individual he didn't possess the drugs on his person he told the officers that he bought the car two days before they found the drugs secreted in a compartment behind the radio bracket inside a closed container there nothing to suggest anything other than he possessed a card to contain those drugs if you knew those drugs were in there if he was taking that car back to its owner because he said i left my drugs in there under washington law he'd been guilty of this subset of crime o categorical well that's that's a difficult question because we according to the government we have to look at the law at the time of mr penn yog was deportation which was  government takes an aggressive reading of the dolman those is to suggest that even clarifications in the law must be ignored when we are sorry when the the court the district court here in a legal reentry case looks at the statute of conviction  counsel i'm still waiting for an answer to my question ari is it your position that we should apply the modified or the categorical at the time we have to apply the law at the time of his deportation ok strolling authority at it seems to me that if the modified the approach is your position i wonder whether you have been waived by failing to raise it in the opening brief but if it's the categorical i wonder whether that isn't available because you didn't raise accomplice liability in the opening bery am i wrong well the i guess you have to look at what was argued below let us know that that was an issue the accomplice liability issue during your opening brief to the court of appeals where we put on notice that this was an issue for you it's practically the entire brief i'll try to pull well i'll sit down and get to the part of the brief that discusses this but this is no different than the brief that was filed and mr brief each pre stamped on his own you that incorporate your arguments from a different brief into a separate argument each that the reason why mr pena agua can argue that his deportation is invalid is because he is arguing that his conviction was not an aggravated felony the only reason he's arguing his conviction is not an arc of a felony is because it's certainly not my argument that we are only looking at the drug trafficking offense when i say that you cannot looks only at the drug trafficking offense the government suggests that because the court found as your honor said then there's the footnote with all of the cases regarding intent then you go through the mens rea of knowledge and the model key penal code in the washington law so it it appears to me that and i guess when the government gets up we starting with the basis that everyone's agreeing that for one is also the liability statute and that's why we're not i think that's why on my section why i'm confused because it seems that we're just cutscene the liability statute under the for one section the criminal liability is defined under the accomplice statute as being the same as the principle which is for one and that when you get to your argument about the aiding and abetting elements and the mens rea requirement and then you say two cases regarding washington law how we how you proceeding with the argument yes we have to look at the washington statute under both the government and my reading of doing is alvarez that includes inherently accomplice liability and then i have argued in this brief as i did in the other case that the accompli liability is overbroad and because he accomplished liabilities overbroad because it's in the visible mr penny i was conviction cannot be sustained is not really because you start with for a line and if you if it's not over brought when you look at the excerpts of record from the hearing on the motion of the court district court below asked the defense attorney you agree if we did go to the modified categorical approach there's really not an issue in this particular case and the defense attorney said i haven't raised it he went further to say you know i don't want to get in trouble for my appellate section by waiving something but he didn't affirm of relief if you argue that the documents were inadequate under the modified categor approach to show that the defendant had been convicted as a principle and the law it's pertinent law at that time would we go to the modified categorical approach no so there's two ways to look at it so in two thousand and eight at the time that mr penny agua was deported there was case law that found that sixty nine point five zero point four zero one under the revised code under the state of washington was categorically a drug trafficking offense that was the luna camacho is another case where this court said that the washington state drug trafficking offenses are categorical matches to the aggravated felony illicit trafficking offenses that's at forty five fed appendix five eighty three and that was decided in two thousand two and there this court said luda camacho's contention that the washington state statute sixty nine point five zero point four a one the one issue here that it's not an aggravated felony is foreclosed by our decision in a bar and the window so about the fact that the line is avarice was decided in two thousand and seven well and so into things at the time that the immigration judge decided the deportation of mr accomplice liability statute is something of recent vintage at the time in two thousand and eight there was no question that individuals convicted under for a one were aggravated felons with their willingness to raise that question by discussing the liability accomplice liability but just in regards to a difference and even if you take the join us all of our framework and look at washington state's liability accomplice liability statute in the case slot the time in the ninth circuit allow this court to examine the documents to determine whether the defendant was convicted as a principal or a thin accomplice and if this court has you know uniformly recognized those documents here do with stablish that he was convicted as a principal there is no other individual identified in the facts of the police report at that's just not true so united states versus grisel in two thousand and seven that's it for eighty eight f thirty eight forty four was another on bump decision by this court where the court looked to the modified categorical approach when there w separate disjunctive statutory for phrases so it didn't require element just long as there were distinctively worded phrases you could go to the modified categorical approach and so in this instance you have to destructively phrased sort of liability of principle liability or aiding and abetting accomplice liability and in two thousand and eight you could look at the documents to determine whether the defendant was convicted as a principal and they now wouldn't go to the modified categorical and under the modified categorical approach as it stood back then whether accomplice liability and principle liability were separate elements was irrelevant novara lopez versus gonzales created a separate rule when there was a missing element all together so this court on vhong navarro lopez said you can't look under the modified categorical approach when there's a totally missing element but that's not what's at issue here there's not a missing element we still have principal liability which mr johnston has all b conceded is an aggravated felony let me ask you why are we looking back to two thousand and eight for the case law that applied at the time when it's my understanding that if the immigration judge is advising or advise in the person the defendant of potential relief then that's when the relief that applies at the time would be relevant versus what the l is because the judge always has the duty to do the analysis of the law to figure out whether to now give it to felony or not whether the person is deported it's a legal analysis versus discretionary relief is my understanding but th discretionary relief in this case hinges on the legal determination of whether the defendant was an aggravated felony or not so the dominoes a says an immigration judge is required to advise a deportee of any right to relief that existed at the time of the deportation that separate from the i go or formulation of whether they found it was deportable at all this is about the right to relief from deportation that's the issue here the defendant contends he was not so we can stop in korea there but even if the court were to conduct between us alvarez analysis the case law at the time allowed this court to look at the documents regardless of whether it was a statutory alternative or defendant was convicted as a principle the inquiry ends and because the defendant was an aggravated felony in two thousand and eight he was not eligible for pretty conclusive voluntary departure which means that there were no fundamental defects in h deportation proceeding so in your view the there wouldn't be any distinction between means of creating means of accomplishing the crime as opposed to elements that's correct back in two thousand and eight means i mean there were statutory alternatives the court didn't conduct the subsequent analysis that this court adopted in rendon what's your position regarding whether or not under the categorical approach in two thousand saying this is an alternative argument if if we aren't persuaded that it was categorically the end your backup argument is that under the modified categorical approach he was convicted as a principle after we look at the of a bifurcated retroactivity analysis if the question is about relief from deportation so uncanny obvious case the question is whether the defendant should have been advised of his right to precinct luzhin voluntary departure in that instance you look at the l time of the deportation if it's about remove ability at all that you look at it's the case law as it is today would be retroactively applicable to the time of the deportation so in mr about the vs case because it was an administrative removal that hinged on his aggravated felony status it's not about relief from deportation it's about his remove ability at all but there is a separate bar involved a v l like the bar here where the doesn't even have to reach the question of whether washington state statute is overbroad because invalid or via we made the argument that the defendant had not shown that he was improperly deprived of an opportunity for judicial rev a counsel is it your position in this case that the that the issue was not raised in the district court that this issue regarding the accomplice was not raised in this record no the conflict liability issue was raised before the district court the thank your honor the accomplice liability was raised below in two thousand it is just minutes ok thank you in two thousand it was true that the ninth circuit had held that this washington drug statute was an aggravated felony overbroad it's also true that in two thousand and seven the supreme court in doing this alvarez prior to this deportation said the courts must consider accomplice liability because it was applied to the  mean was that really where the court's on notice about applying that to the statutes i don't know well the government i believe that that it was in two thousand and seven this court decided on behalf of our lopez says you do not get to the modified categorical approach if there is a missing element since we have to consider accomplice liability because washington accomplice liability is missing the intent element that every other you disagree well i do i don't think you can look to any documents if there is a missing element hundred far lopez again we have to question becomes is there a missing element or is there an overbroad i'll be honest the this is not new law is not a shock departure it is a restatement of what was said in taylor and shepperd why do you think we have to go back to the two thousand and eight when we're doing an analysis of whether the person is going to be deported and it's a legal analysis i mean i think it was the camacho locus case says you go back to you that such a fundamental analysis that has to be done by the judge it's a duty you can't it's retroactive because we do that all the time where the law changes you go back to applying it retroactively when it's something as substantive as removing a person or supporting a person versus giving someone the opportunity or the notice for some sort of relief that's what i'm having trouble with and i don't want to do the government's work for them they certainly have agreed with me on a number of things here but under the dome and does it because of the the the posture of this case because the duty of the judge was to fairly review the record and let me just get the language so we're looking at the law as it existed because that's the only thing the immigration judge could have been able to and advise about was the law that exists that the immigration judge didn't have an obligation to look into the future if the what the law might be next year or five years from now so we're l we're taking a snapshot of the time when the immigration judge was giving the advice to see what the law was at that time because it wouldn't be appropriate to hold the immigration judge to knowledge of l thank you i thought they were trying to make it easier on you folks but i will wrap up but but by saying that at the time the modified categorical approach to donna frye if they did that there's been no waiver of an argument the government for the first time in their reply