our sixth case for this morning is channel against attorney general sessions mr carpenter to champaign illinois to attend college he was unfortunately convicted in champaign county illinois of possession with intent to deliver ten to thirty grams of marijuana in violation of seven twenty i also yes five fifty five part c in two thousand d it's like when you were in math class you know are you looking at the greater than sign or the greater than or equal to sign in this seems to be more than thirty grams which is why your argument is thirty point zero zero eligible for that relief but for determination of an aggravated felony on either one of the two convictions the immigration judge agreed with our position in the ten to thirty grams was a small amount taken into account the moncrief mandate that the lesser  of looking at thirty to five hundred as though it was a very tiny amount about thirty at the low end they looked at it is going all the way up to five hundred or perhaps even looked at the underlying offense conduct as opposed to don't really say why it's not a small amount instead they simply rely on the upper limit of thirty grams as articulated in a couple of cases which didn't say that they said that it was a useful guide post only right and that's obviously the crux of our of our  that amount almost over the counter for recreational use of mean allows seventy three grams to be purchased over the counter now so the world has changed there's no question that some out of recreation that yes that's there's an argument for that to be sure  so at the end of the day i think you know argument is contingent on the reading of what constitutes a small amount there's no disagreement with the fact that there's no remuneration required by the statute there's no disagreement between the parties that the monk creve analysis should invest here in that the lower end has to be considered and there's really no disagreement that both tribunal's that more than thirty was just necessarily not a small amount and that's pr held that that useful guidepost idea was very much in play in the context of the possession and distribution had to be considered and that certainly was not considered by either the i j a or the board in this particular case because no testimony was  the united states the petitioners conviction for possession with intent to distribute more than thirty grams but not more than five hundred grams of cannabis under five fifty d or five d i should say categorically constitutes an aggravated controlled substances act that's not an immigration statute and secondly the floor of the south part d offense you know is thirty point one grams or whatever zero she won you know a shade above thirty grand and so under the categorical approach we need to look at this is though this is a thirty point one gram case and we all know what the facts are but we're not looking at those and moncrief doesn't have a word about the rigidity of that thirty gram lie that the government is arguing for here in there i don't see how that doesn't lead one to say this is also a small amount and you know if illinois had a thirty to one hundred gram band in it statute instead of going all the way up to five hundred you would just say we don't get to the aggravated felony until you're at the hundred to five hundred level just as happens bill and i didn't write the statute that way but you're absolutely correct that the thirty grams that was mentioned in cast was just simply the guy put this is exactly what my that was what was mentioned and margaret from which petitioners also argued and there's no dispute about that it's just simply a guidepost but just because of the guidepost doesn't mean you can go it can't go below thirty does i mean i don't know it's a categorical determination of when and we have this legal issue is this particular offense under illinois law the greater than thirty but not more than five hundred range something that is an aggravated felony but mine prove tells us we look at the greater than thirty and because you could be charged because we're not looking at the underlying conduct and it seems to me when you do that it's completely arbitrary to draw a distinction between thirty point zero zero grams and thirty point zero one  it's just recreational you know the guy's not really doing anything probably not even illegal at this point your honor one thing i would have liked to your attention to it would be just the structure of the statue itself i mean the structure of the statute lists first section being criminalized as two point five to ten grams which is of considered mr i understand that and first he gets the c offense and then he gets the d offense i'm saying if de was divided up more finely maybe this wouldn't feel as annoying to you but it's de happens have a fairly wide range you know from from roughly an ounce up to half a kilo is what d houses and it goes on thirty grams and goes up to five hundred gram know it but this goes up to more than thirty grams you would agree could mean thirty point one often times you measure these things in milligrams absolutely but i suppose the argument could be it could be less than thirty grams too because we're just using the guy posed if we're looking just at the statute the statute provides as more than thirty grams of five hundred the the the board as the and the immigration judge they have an average of the obligation to figure out is that a small amount of the is well i think what some of this discussion has gotten out is if you're running a prison for example you might be worried about much less than thirty grams you might not want any you know marijuana in the prison because prisons need to keep control and so forth but that's not the context of this case it's not the context of mr chen's conviction and what you're telling us is even though you're not the board itself is not charging the subpart c offense as an aggravated felony but it's the thinks that the thirty grams that we need to look at for the s supposed to focus on that's correct r and i would also look to also the fact that it's just in this case as the burden of proof has the burden of proof for proving eligibility for cancellation rupe of removal and that therefore he has the burden to show that he was not convicted of an aggravated felony the great the i agree with all of that but the point is the characterization of a hair above thirty grams that's the legal issue has a reasonable guy post for what we consider thirty grams or below is a reasonable guide post for what constitutes a small amount the book market didn't reject that they didn't they didn't accept it either but they didn't reject it as that thirty gram guy posed what the board simply did is they looked to the thirty gram guy post and said hey this is in this particular case his conviction is for more than thirty grams up to five hundred even if it was thirty point zero zero zero zero one it's more than thirty grams and i actually say that i'm looking at the board's decision that the board just assumes greater than thirty grams is more than the small amount contemplated by the court in mind cre to prevent deportation basically to be a way to get out before taishan so it does show up thirty grams to show up some place in the eye and then that's why it's castor oil rig is used that amount is just sort of a reasonable guideline to use for what constitutes a small amount but in well that's another old case looking at offense conduct not looking at the categorical approach that's correct so it's a flawed precedent for our purposes but it does analyze very carefully what constitutes small amount and if you look at th i think you first i don't believe that the thirty gram the idea of thirty gram limit comes from the eye in a work section to thirty seven for remove ability under the irony of the you know that the idea of a small amount within the c s a is very much independent of that i would agree with that depending on context the problem here is that the immigration judge in the port of immigration appeals treated it as a limit and used that word and that's the real problem here and didn't didn't specifically employ the moncrief approach of assuming just over thirty that was deemed to be small by the immigration judge the third circuit disagreed mattie involved sixty three point seven hundred grams and the reason why that's the mountain atlas and thirty grams as a government asserts is because in that opinion you'll see that the i g didn't believe the resp testimony that only part of the marijuana was his within the apartment so that was predicated on sixty three point seven three europe's and you know it is all about statutory structure and the limits within the statute and the moncrief court was very aware of that and said when they  rendered the opinion that they rendered that they had knowledge that larger traffickers of significant amounts of marijuana would be able to avail themselves of that decision but that those offenders you know within the categorical approach those necessarily would be able to avail themselves of cancellation of removal but they preferred that degree of imperfection to really getting all prosecutions and they wanted to err on the side of under inclusiveness because ambiguity in criminal statutes reference