has waived that argument by not raising in the district court but aside from that we know that other circuit courts have used the categorical approach in certain circumstances although the case law is a bit murky on this area and some courts find that as this court did under either approach the result would be the same so most recently this court and brock miller decided that either way you have it under circumstances or the argument that this is so broad as to include all drug offenses essentially and found that the categorical approach is appropriate because you're talking about whether someone was convicted of an offense not whether they committed the offense you know so then with that we go into the categorical approach framework which then necessarily gets us to whether it's identical or overbroad and in this case and the ninth circuit  fifth circuit have been kind of on the forefront of this over breath of drug statutes there are two substances that are not covered in federal law that are covered under the arizona statute and that would make it over broad under the case in the ninth circuit and certainly considering that of the medina lara case in the ninth circuit some of the fifth circuit cases fast clare's is the most recent one best course for six sessions to use the categorical approach that's how we get to plain language but what a change i think we do have a plain language program into you look at the just simple mass amounts of convictions that it would bring in and that the supreme court has said that that's not appropriate certainly the supreme court is looking to limit this in some way they could have said everything that involves drugs applies and we're done here granted it was a different statute but it has similar language to it how one talks about how when you're the statute talks about being convicted then you use a categorical approach in addition it's not an individualized circumstance or a determination it is based on whether this predicate conviction applies or not there's a mandatory sentence if it applies unlike some of the cases that the government cites torahs the tour is with the z which is about the federal death penalty act that's not an automatic mandatory sentence that just means someone's death eligible if the finding is made and finally the statute refers to a generic crime through burgess the supreme court said essentially that this is meant to be this definition under eight zero two forty four is meant to be a generic or all encompassing crime or definition of a crime and that generic crime leads to the categor and then of course as detailed in our brave when we get to the categorical approach is a little bit easier of of analysis although a categorical approach is never an easy analysis it is broader than the federal statute as overbroad and while that may seem like perhaps that would take care of all these convictions get rid of all these convictions that should otherwise apply it is a very limited circumstance which actually in this case the statute has been changed so people who are convicted of mr elder's crime now or even after one thousand i'm sorry two thousand and seven would no longer has this quote windfall and that in many states actually adopt the federal schedules so illinois is one of them in illinois the federal schedule so there is no overbroad after a certain date in illinois state crimes involving drugs we get to the next step because it is overbroad that it is not visible because that's where the mathis comes in the mouth is argument comes in that is not visi because dangerous drug is an element and all the dangerous drugs listed are means i do wish to talk before i'm into my rebuttal time a little bit about her most error the district court said when mr elder indicate if you wanted to appeal that you know your guideline range won't change and that is certainly the case where the guideline range is not going to change mr elder got a below guideline sentence that of course is down from the mandatory life sentence he received the first time around because one of his other convictions he only has two the other convictions fell out this is the only one that's left he goes on is a two hundred sixty months all the cases that are harmless error involve guideline error and where the the judge said life give you the same sentence regardless of the guideline range this is a statue range changes significantly the amount of time and the amount of discretion the judge is allowed to get and we believe that the judges qualification of guy by an error indicates that he would consider if the statutory range changed unless the court has i mean would you agree then that if we were to accept your argument we would remained for a pal of the you know type of decision by the judge i'm not sure i would necessarily agree to dean was a discussion recall not based on the changing of any range necessarily but the changing of the way the judge would impose sentence i believe this case is different in that the statutory range changed that being said i'm not going to have to please the court brian writes for the united states i would like to start by addressing judge ripples question about the plain language we would actually cite the court to footnote nine of mooley which i think at least in verse addresses the situation here so  that i think the judge here said only lawyers could appreciate and i think that's probably right you believe that the statute is divisible by looking at the entire statute correct not not just a subsection so i think it's agreed that the subsections are divisible i think it becomes a much different are just miserable our divisions are divisible so the subsections one two three four five six seven you can definitely divide them out k i agree with that too but but isn't it more appropriate to look at the subsection of the statute i'm going to refer you to a case called edwards i think you guys talked about it right and in that case judge sykes wrote the opinion  we have i think a very analogous situation where you have the drugs for for section three their possession of the equipment to manufacture dangerous drug and the drugs include more than the controlled substances and federal statute that would be required to have a prior felony conviction and trigger a twenty year mandatory minimum and in in the edwards case this court found that these different  places of where the burglary could occur were means rather than elements because a jury that the jury is not instructed in in in a drug case to find a particular type of drug so  therefore it's not an element i mean we instruct juries all the time in the district court on drug cases we specifically say you don't have to find a particular type of drug as long as you find it's a controlled substance so we agree that the first level one level the visibility is insufficient on this case certainly people it has to be divisible earn that in that scenario dividing between the subsections is and if we apply the strict quick categorical pro choice isn't enough we also agree that the dangerous drug certainly look like means not elements however arizona complicate it complicates it a little bit on that because it has the separate meth sentencing structure and if in if the defendant is subject to a stricter sentence based on that under ma pretty it has to be an element was ok and you say that that difference in sentencing depending on the type of drug yes now is is is now in the statute yes and to be higher in the statute when this gentleman was convicted it was in the general statute but it was not in mr elder specific subsection a three we agree with that but moving back we don't think that the categorical approach applies here we think this is the reason that right if we do apply departure well below the guidelines so are are harmless error argument applies even if even if the court applies a categorical approach and finds the statute is indivisible and mr elder prior conviction doesn't you apply that standard as the court always applies that this would be harmless because there's no indication that the judge felt constrained by the twenty year mandatory minimum the sentencing hearing all was about the guidelines and the judge basically talked about the guidelines and how it was below guidelines sentence moreover i think we can combine both ends in hearings to show that it's harmless because the judge was admittedly frustrated if not outright annoyed with us at the mandatory life sentence so he was relieved upon the remand as he even said on the record so i don't think there's any reason to believe he would have gone lower based on the mandatory minimum the guidelines drove the sentence here and again we think the court should affirm on harmless error and gives the court a way to avoid pretty clear in our brief at least i hope i do that we're talking about eighty three specifically all the other subsections of the statute really don't matter because he wasn't convicted of those some of those are are internally divisible a one is internally d footnote nine i'm not sure it goes as far as the government's willing to let it go but the way is instructive about the categorical versus circumstantial approach regarding harmless error i don't think th guidelines drove this judge says sentence and you have mr elder's guidelines were three twenty four to whatever the top four or five maybe and you got two hundred sixty months the judge was frustrated with the mandatory life sentence this is a man who essentially  very minor prior drug convictions but then when it came back i think he did a different terminations on the sentence not necessarily our mathis issue he did you know he adopted his prior findings did a very different determination but