n morning honors may please the court jacob russia vote for the appellant donald thomas this case turns on whether the uniform generic definition or plain dictionary definition applies to controlled substance offenses in the guidelines because this court has already answered that question holding that the uniform generic definition of lies mr thomas's prior conviction for distribution of an imitation controlled substance is not distribution about counterfeits absence under the guidelines you agree that if it's the dictionary definition then the governed your blood properly here but we haven't made any argument against that ok so this point  happens but we never get there because in united states versus domingo's rodriguez this court held that possession with intent to distribute a controlled substance was an enumerated offense to which the uniform generic definition applied likewise distribution of a counterfeit substance is a numerated offense that must be given its uniform generic definition and to determine a uniform generic definition this court first looks to the federal statute considers the majority of states as well as any secondary sources including treatises and model codes he could i just ask you about the guideline we're working with here it's for b one point for the one point two a and those break out pretty cleanly as elements and the numerator defenses but this one doesn't really read like either one of those so so what kind of a offense that you know that must be given a uniform well let me my question is a bit of a setup for the next one which is whether it really makes all that much difference because we're dealing  with the term counterfeit substance and as i understand it you want to say well the generic definition but can you all just also just say that legislatures in the majority of states and the u s congress and the uniform law all define it it's a settled definition as far as they are concerned so what they're fringe doesn't make whether we call it a generic or an elements why aren't we just looking at what the meaning of counterfeit substance is and go from there right i mean either way it doesn't really matter whether you call it a numerated offense or or something else all right to now that is a broader question about how to do statutory interpretation but if you've got a phrase like we have here counterfeit substance and there's a dictionary definition and then there's the definition that is sort of a legally one but they're in conflict and it sounds as if your answer to charts suggests that you think they are what what is the how do you resolve conflict i mean what do courts say when they're confronted with a conflict between say a common law definition and a dictionary definition which one prevails rights of the general rule is that the common law definition or the generally accepted legal definition of well established legal definition prevails over an ordinary dictionary definition right now do you have some good the good authority for that yes johnson versus united states in the supreme court consider whether the common law definition of force or the plain dictionary definition of force applied in in johnson they said that basically the common law definition which would usually control that is an assumption that congress tends to employ common law definitions would be a comical misfit in this situation because the common law definition of force includes mere touching   of the slightest touching so that so in that context they said that it was a comical misfit contrast that with castleman where the court was again considering the definition of force in  so in that context they said the use of the common law definition of force would not result in a comical misfit because in context they didn't have this modifying term violence associated with it  so because it wasn't a comical miss that they had to default to the assumption that the well established legal meaning applies so again under this president it's it's a much cleaner argument that possession with intent to distribute and numerator fences clause you still give well established legal terms they're well established legal meaning absent a comical miss you're saying that the canon of construction but every can as exceptions my problem here is if counterfeit means what you say it means why is it in the advisory no is it in the comment because it adds nothing there's absolutely nothing that would be no offense that is added that can be considered a controlled substance offense by adding or a counterfeit substance in parentheses in the in the i should say in the comment in the definitions ok can you give me any example   surplus and when they are surplus it's and we agree allow it it's usually a long list when they want to make sure everything is covered here it looks like there's specific content here to say or counterfeit and together with that you have another indication and that is when the word counterfeit is used in what is it two d one point one i see the application notes pacifically refer to the statutory definition of counterfeit and you wonder why it would refer specifically there and not in the nother section in other words obviously the sentencing commission knows how to incorporate a statutory definition as opposed to a dictionary definition if you if you respond to those because your general argument makes a lot of sense maybe maybe you'll even carry the day but at least several other circuits have been concerned about what i mean you as crews which have already gone have established that the uniform generic definition applies in this situation they did apply just the general canons of satch tory interpretation and they and they all started with the assumption that an ordinary dictionary definition applies which i would say we're not just dealing with competing canons here because because this court has already said as has more of a rule than just a matter of that where the defense or a word is not defined in the guidelines then we apply the generic contemporary meaning or the uniform generic definition so it's more than just  canon trying to divine the intense of of the commission that's it's a baseline rule that that is what applies absent some comical mischief as far as the express reference of the federal definition in two d they're referring specifically to the federal statute because it's for a federal offense so they're just making clear that this that a forty one drug offense is also flies to counterfeit substances and that's when you would apply to d s for a federal crime the that the career offender guideline doesn't specifically reference the federal definition is because and we're not arguing that the federal definition of plot federal definition doesn't imply there is no expressed preference and i'm not asking this court to say that there is a reference or that it's implicitly referenced what i'm saying is that in the absence of a reference the uniform generic definition applies so in this case the uniform generic definition but the guidelines is not directly employing that definition as far as the redundancy goes the fact that we're done see is confined to a parent at a poll suggests that it is just for clarification purposes and it's not unusual that the clarify as are others that clarify anything if it means what you say i mean it just later find that it applies to controlled substances you couldn't be prosecuted with respect to a controlled substance if you there's a case of you know the second circuit where the controlled substance was imported and then the defendant relabeled it too to make it look like it came from a legitimate u s manufacturer and there was a prosecution for creating a counterfeit substance that particular offense could not have been restated as creating the counterfeits of creating a controlled substance so that there isn't redundancy in the federal statute regarding counterfeit it's an additional or maybe even an alternative crime of mislabeling something that's a controlled substance i don't think it's correct to say that but i mean it does i don't see why that crime couldn't also be charged as possession with intent to distribute a controlled substance presumably they weren't labeling them for their own use and so i mean i have a hard it still seems like that there's if it's not literally one hundred percent overlap in the federal statute it's still quite close your honor i realize that you can finish your sentence well ok and i just would want to add that it's not unusual to add redundancies in  parent that a cold just for clarification purposes and i could submit a twenty j of a letter a few statutes where they do add kind of clear fix lying language for example you know i don't have that language off the top of my head but it's  the court should rule on behalf of the united states i want to do two things the first one i think will directly address your series of questions judge mathis and involving the common law numerate offenses approach and that's going to be talking about why this doubt standard method later that first point absent some definitional provision this court and most courts as a default will typically use the plain language or pay plain meaning approach but there are exceptions for instance when a statute it's unique history w suggests that we should use some specialized approach if it uses common law terms this court and other courts will often look to the common law history to figure out what the common law meaning of those terms are likewise in taylor versus united states the supreme court came up with a specialized approach for dealing with the great defenses because it had a statute there the are career criminal act that defined the term violent felony in relation to specific enumerated offenses and if you look at page five ninety seven of that opinion it emphasized this is burglary language as part of the reason that it was not going to use a common law definition of burglary but was going to use this new rate offenses approach into a generic definition nothing in four b one point two b sentencing commission sought something other than plain meaning approach these are common law terms yes a majority of the states use a statutory definition of counterfeit that's similar to this one although there are eight states that would call what the government is calling counterfeit counterfeit  but those aren't common law did you were down to five those in your brief i did not i can identify them now or give you twenty eight jail i was there or florida georgia maine north carolina which would call this both counterfeit or imitation and then also arkansas massachusetts ohio and tennessee counsel i think i understand your point the statutes are not common law but why should we let the editors of webster's tell us what this means rather than what they are the six state legislatures the united states congress and the uniform substances act tell us what it means because when the sentencing commission is the violence things are also going to be defined this against the background of what they know courts usually do and one of the background has a well settled meeting meaning it doesn't given that there are eight states that use different meanings and so yes there's a majority that use that particular meaning but if they wanted to use the definition of counterfeit that the other side's using they could have done exactly as that was done in in no to the one point one and referred to eight o two and then they could have accomplished at that because they chose not to do that so so absent some indication that the sensing commission wanted to bring in the taylor approach or wanted to use a common law or was necessarily just relying on the federal definition that is used by many other states but not every other state use this unique definition to is because when we if we're going to start using the generic approach for all these different things in four b one point two b it's going to make it harder for criminals to know what the actual provision means as well because these fifty state survey clause i'm saying it doesn't all i'm really saying is it's not in a numerate offenses clause it it's which is all that really matters because if it's not enumerate offenses clause then we have no reason to use the specialty approach the other elements clause is just using plain language approach because we don't have some specialized approach for causes and i do believe that it is taking something more like an elements approach given its introductory introductory language it's talking about talking about a shorthand for a collection of elements we're not focusing on just one element yes possession with intent to distribute happens to also be the name of an offense that at the same time describes the main con but that's involving but  the other things and for b one point to be for instance an offense that prohibits imports of a controlled substance offense isn't necessarily a common name for the offense really talking about what it is that's prohibited so i think this is more like an elemental clause that saying this singular individualized thing is what we're getting at we're not using burglary or some other shorthand that is for another collection of elements that we're talking about like you do with a in part it is dealing with a different different section four b one point one and actually i think if something's going to be controlling it would be a decision they cite in the reply brief united states versus qur'an that's a decision where they they cite the proposition that four b one point two and two referenced are twenty eight j letter cherry takes it's the definition from a wire and if you look where it's taking the definition from a wire it's in the section where it wire says there's no difference between the dictionary definition and the legal definition of distribution and so acquires basically got this the plain language is the same here cheri says that's fine and now qur'an incorporates that approach in the four b one point one and so it would appear that would be one point one is actually using plain language approach in the earlier decision here the  taylor into that provision where it doesn't actually belong but i would acknowledge it to al case you're going to be you would be bound by doing this rodriguez on that finally applying the meaning is rodriguez or some other definition of  frazier have all answered this question the way the district court below here did and said these particular offenses qualify as counterfeit offenses i think the proper interpretive approach has to be defined by the language that you're interpreted and if you look here if you have a statute that's referencing common law terms then yes look to the common law mean if you have a statute this dealing with enumerated offensively and yes using the generic definition approach but absent some indication that you're using one of those specialized approaches you should default what you normally do which is plain language or plain meaning because that's what the sentencing commission would have assumed that you would do when it's putting this language into the provision unless the court has for the  n makes an interesting argument so i still think if you if i didn't feel that the word counterfeit would otherwise be superfluous i'd probably be more persuaded by the by the other view  the argument counsel made here is that the parent political you can have surpluses and in parent that are calls that simply explain you have any response to that do you think that it's be proper to interpret the word or counterfeit the words were counterfeit or a counterfeit substance that's simply being exploited or clarification i really don't see how any how it would really be adding anything given simply that it simply it's also controlled substance and so if you said controlled substance all of these would fall and under that case and i've seen where they've choosing not to give separate meaning to the parent that it will and choosing to use it as something else or usually when it's somehow contrary to the text outside it which i don't think is the case here so i think the proper way to give this meaning is to give it meaning whe government has done that otherwise i think you're actively reading that parent poll out of the provision and there's no reason for it to be there could i ask you if using the dictionary method so you look up the word counterfeit grokked and see what the dictionary says and if the dictionary or maybe multiple dictionaries all say the same thing then that means there's a plain meaning for the word counterfeit is that how it works it and i think the basis for that is absent some sort of specialized reason for thinking otherwise want to think house or the person on the street is going to think what this term means and we think that that's the most the most likely definition of the  so if i go to the dictionary though and i'm looking i can find the entry in tree for counterfeit but am i going to find an entry for counterfeit substance no but you're then going to look at the definition you have for counterfeit this is a this is a these are terms to go together and they're defined in the federal statute that and the sentencing commission certainly had that in the background in fact they had that more in the background than a  modifying substance and yes there's a meaning i don't think my point changes because it's an adjective if the two words can mean something different than that than the individual words standing along and we don't have a dictionary entry for those two words certainly i mean if they said counterfeit toy that would have some different meaning but care fit what doesn't appear in the well i know i don't want to belabor the point i'm just i'm just saying that it isn't so simple as going up and looking up the exact phrase that's in this guideline but i'm going to take some steps you're saying while you look at that you look at the definition here is that an adjective is it and now i think it's an adjective ok you've got substance over here what does that mean now let's put them together and figure out what they mean and all of a sudden that isn't the same thing as just walking over to blacks and and and and getting the answer i think the post as opposed to walking over to the us code and getting a definition of the exact words i don't think that i think you're talking about with terms up this means moreover if that's what we're looking to if you look at all those states that choose i don't recall that they're all actually saying now i'm going to look at it i can't remember that they necessarily all say counterfeit up and i thought well i think a lot of them are defining the term counterfeit as opposed to and granted it's in the in the section on controlled tension between do we do we follow strictly the categorical approach when dealing with an undefined term in the in the guidelines is a good career offender and they're considering what is the meaning of the word conspiracy in the application notes of the career offender guidelines which apply specifically not case they were considering it in the context of conspiracy federal drug conspiracy  and they essentially came out that even where that basically the the categorical approach the uniform generic definition controls over what