on the faulty basis that the mission of use with nothing else could be punished under could you speak up speak up a little could be punished under colorado law by more than a year this decision is erroneous for at least two reasons the  dispense that drug or they could sell it to the pub but colorado has recognized and you make the point that it's in the context of his action in a tino institute that he says enough because it is it is logical to assume that if somebody has used an illegal substance that they must have as that's it at some point i would concede the point that the colorado case is made clear that when someone uses a drug they necessarily possess but it's not our position that they can be punished under the possession statute if you look to the cases such as camera which the government cites his twenty  r uses almost a mitigating the remove that culpability or that threat to society at large by using the drug and they're calling the supreme court is being clear that the threat posed by the defendant who uses a drug o if the colorado cases establish that knowing use inherently involves possession where burglary ok so far as a practical matter they say one cannot use a dru it's a ritual it's a you know it's a pretty significant argument to say that you can't you can't charge someone for possession based on the equal protection clause in the colorado state constitution and only say that when you do it for the st time in a reply brief how can that not be white well the banner argument here the banner argument here is that the what argument you are on the legal argument that could be waived or for food is whether or not he could be prosecuted under the positions aren't you in the opening brief was no he can't and here's the proper interpretation of color our supreme court press the government came back in its answer brief and said no that's not the correct interpretation you can be prosecuted and we came in the reply brief and say well here's an additional problem with the government's argument and then it would create an equal protection violation und protection problem you've already said that possession because it runs the risk of further distribution of the drug is is punished more harshly and if if if your client had both used and possessed what's wrong with charging him with possession because his possession did present those problems beyond mere use the problem is  colorado's equal protection gers truths they've said to the general assembly can give to a prosecutor on restrained discretion in his charge says there has to be something in the statute that drives the charges so if you consider it as applied challenges you look at two similarity similarly situated defendants two people that had emitted to using drugs nothing more there would be unrestrained discretion and charg decision to adopt the government's argument that it's really a church council possession and use or not are not identical conduct are they know and that's key the difference between the two is that there's great a complicated culpability when one is found in possession of a drug so that's when you get put in that well ok then i mis understand it seems to me if you're making an equal protection argument the argument is that if a defendant has engaged in conduct identical conduct that could be one crime or another you're argument is the prosecutor has to go with the offense that is punished less harshly but possession and use are not identical conduct no they're equal so what so what's the problem the problem is if you think of two similarly situated to take one step colorado does have a far more reaching equal protection doctrine than its federal count and i is it is clear that a prosecutor can have that on restrain discretion so many comes to that thought experiment consider two defendants that only admitted to using a jury if the government's arguments adopted the prosecutor to charge one with possession they would face a harsher penalty and don't like to completely unrestrained for no rhyme or reason but the nd one only gets a misdemeanor under the use of under colorado law that would be  the difference has to be with the harsher punishment comes when you engage in more well d let's let me not to belabor the point but let's take let's say someone pulls out a gun and shoots another person the prosecutor has to decide whether it's st degree murder or nd degree murder but the conduct is the same for either either charge does that mean that the prosecutor has to charge nd degree murder no and that's a new mission that this doesn't really fit if we lesser included offenses box of how we sort of or how we normally consider these equal protection challenges because the additional element here the use which diminishes the culpability comes with what could be viewed as the lesser included charge and in the case of the murder scenario you would have an additional element of probably premeditation need you to explain to me why campbell versus people which pretty clearly says what judge matheson was articulating that use and possession are different types of conduct and that it's not an equal protection problem how federal law and under federal law in the least in the th circuit you can rely on evidence to use as support for a possession charge can i'm not sure only if there is a standard that used could most likely not as i can see them certainly but so even under federal law it's it's apparent that you would be punished for more than a year dealing with what the person actually was convicted of but this whole process requires the sentencing judge to thier eyes about what crimes might have been what the sentence might have been the court kelly winslow on behalf of the united states i want to start with what i think is actually the core issue in this case and that's the question of whether or not courts can properly consider the sentencing enhancements when determining a great violation in the context of when determining a great violation so what the defendant in this case is actually asking is that not only do we overturn the precedent in this circuit down on this decision and i've been clear about sentencing enhancements in this context and the defense asking us to do this on the basis of an application note and the defendant's reliance on the snap occasionally is misplaced for multiple reasons it also does not explicitly say that you could not look at sentencing and handsome and it also does not explicitly discussed but it doesn't say that you can either right yes that's accurate your honor and that is really what the defendant that issue was not raised at the sentencing hearing and it wasn't raised in the briefing that came before the hearing on the revocation for a supervised release as well i'd also note that implicate using this application note and implications that you can't look at sense and handsome and actually goes against the rest the guy lines which when you're determining an offense level for for someone's conduct you are in fact actually allowed to hansen's one example being in the context of a nine hundred and twenty two g someone's offense level might be say a fourteen however if that individual had previously been convicted of a crime of violence they would then be looking argument about double counting i think that's what the implication is and what this court has actually said in other courts have said that that is permissible permissible because criminal history and status of conduct are two face of all this case law that says they can is is inappropriate and the defendant has incited any type of case law to support that so we go to the next issue which is assuming that we can in fact look at the sentencing and handsome and did the court properly do so here in the governor's position is that yes they did and what the government specifically did in this case is they found that there were aggravating factors that would make the defendant's conduct punishable by more than one here under the colorado state statute and these aggravating factors were specifically the fact that the defendant was on a form of supervision at the point in which the defendant was found to be possessing a controlled substance and the court made this specific finding it found the specific aggravating factors and also found that even if it wasn't in the list of the numerate in factors under the collar of colorado state law it could have found it under the actual catch all that's also included not colorado state law that says you have these aggravating factors listed you can also a judge can also find an aggravating factor for other reasons as well you know i know the cases say the are different acts different types of conduct but i do have some trouble in determining where that line is drawn obviously if you're using a drug or possessing it at this at the same time and there's some logic to the argument that they eventually collapse into the same conduct and you know why isn't that why isn't that a problem and even though even though the other cases suggest they're different isn't it really a logical fault fallacy that they really are so i think that the course is that it's sort of in different ways you see the court say it assumes possession in st possession use necessitates possession and we've seen this as you mentioned at the state level we've also seen this in this court in the context of three thousand five hundred and eighty three rockwell on hand and also other circuit courts that said this and and i think that's a that's a fair question is sort of what what is the line there right when does it go over but i think in the context that we are in the question is did the contact with him do the conduct amount to possession based on the final report of court and was it reasonable for the supervised release hearing was that he used cocaine multiple times throughout the month of june two thousand and eighteen and he also because he also tested positive for for cocaine and how the violation was actually written use of a controlled substance it was violation one and the defendant admitted to that violation and the underlying conduct which i just articulated and so based on that what the district court found is that the defendant had in fact possessed a controlled substance and the district court actually did discuss the issues about knowingly be able to to use a substance that addressed some of the questions that have been raised by other cour contraband contacts however the case is the sort of treated that's the same going forward they look at possession and use and said we're talking about possession use broadly not necessarily adjustments in the specific instance of contraband but under colorado constitutional law with the possession in the use charges here merge such that you can't you could only rely on the use so i think what we've seen is that generally all to me at least people are getting convicted the possession of the evidence of the uses is merging with the possession charge and what was discussed a little bit and what we have found is that the court has found that there is no protection issue right and this most recently and the camel case and one nice quote from campbell that sort of illustrates why dissonance is an issue saying the fact that use of a controlled substance necessarily requires possession does not make that conduct identical call for equal protection purposes and so what it's saying is that these are two separate these are not identical acts even if you might be able to use evidence abuse to show  how would you address that why would address that in that the use in possession statutes actually have different elements so ultimately if someone was charged with possession based in part of evidence and use they would actually have to be convicted based on the unlawful use of a controlled substance and in the context of sashing statute it's on an unlawful knowing possession of a controlled substance and so it's obviously you know there's a fine line here right because we're saying that evidence of use can go towards possession but what the courts have found when finally there is no equal protection is the fact that the elements are different is one of the reasons why we don't have an equal protection violation in this context can you have use without knowledge under colorado law no so there is so you do need knowledge under the it doesn't say it in the statute itself i'm looking at the jury instructions you do need knowledge which makes sense right because they're trying to avoid situations you have use you have possession right i understand what you're saying and i think that's where the line the line has been and i think you can have a situation where someone may end up using but isn't going to be charged with possession maybe they'd be in the situation where you just how hot you way or actually i think it's and could get all they made the distinction of someone having a magic mushroom put onto their tongue and they said that would be a situation where you panel to affirm and is there any case law or federal case law that's comparable on this possession and use issue to the colorado case yes your honor so i briefly mentioned rock violation if you have federal possession and the individual i had a previous conviction for possession under state or federal law just to touch on a couple points about  the argument that this would preclude the pork from considering the federal offense although the court ultimately didn't make a decision on whether or not the federal funds would apply here and we also have several other district court or i'm sorry appellate courts that was a different statute and that required can an actual conviction so what they were saying is that if you're looking at an actual conviction you can't hypothetically say what the state would have done because we already know what the state had done the supreme court did say that in considering whether or not this conduct would constitute an offense punishable by more than a year under federal law you can go to the real world application of these statutes