we believe for three reasons that the identity of the controlled substance under that subsection it's not divisible under the supreme court's framework and now this first the structural separation of the term controlled substance instructive the reason we find the structural separation of the term significant is under this court's precedent an elder where the term dangerous drug was separated from its definition and listed the controlled substances that could qualify as dangerous drugs the court found where there was not a controlling state supreme court president on point that that may be indivisibility clear  reason we find the touchable differences to be of note in this court's analysis is our looking at the tax you can see how c uses an umbrella term a controlled substance and it  not distinguish between the identities of the different controlled substances in terms of setting penalty ranges if you compare that to a and b which subsection b cross references section eight with particular subdivisions you can see that a is listing the identity in a way that makes it an element of the crime under a and its timing so separate identities two distinct penalties which  create see in a way that it's natural if you can't prove your case under ebay it's a tool for the prosecutor essentially and how how you believe it's functioning under the act is playing clean up if you cannot make your case under a or b then it's available to the prosecutor to charge under sea where the prosecutor could prove that the defendant possessed a controlled substance perhaps true that we do not believe that had very definitively answers the question and mathis and as applied in this court and edwards mathis is instructing courts in these analyses to look for state supreme court court had to discuss the elements that the government had to prove to convict under section four o two c and the reason we think that discussion is significant is because the opinion discussed is that the government needed prove that the defendant possessed a controlled substance not the identity of a controlled substance and it seems more likely that if it had to prove the exact identity rather than a controlled sufficient to convict and it discusses favorably a case where the only evidence that was proven the other evidence in that case had a chain of custody issue the only evidence that was proven in this case that hybrid it's disgusting is conviction anyways and since hybrid discusses that favorably that's another indication that here our theory is working the other case that we thing is most significant to this court analysis would be elder itself and we consider this the case of an absence of a surprise illinois state supreme court decision authoritatively determining the issue and  elder when it faced that laughter of an authoritative state supreme court decision went to the tatts it looked at how the term dangerous drug was separated from its definition and it to term and that the identity is not divisible now given that the b a s decision which is the appropriate decision for this court's review all did not go further than this divisibility analysis its decision turned solely on the question of whether the term controlled substance was divisible and it did not reach the peak which matters instructs if there trying to look at the people could go ahead and take a peek we do not think that these conviction records plainly establish that the identity is an element there would be two documents to look at on this record the first is that they are three eighteen the second is that they are three in one thousand and that is the sentencing document which uses the umbrella term controlled substance it does not identify the identity two we do not believe that is the case your honor and the reason that we don't is because we think that that legislative amendment in the preamble is targeting subsections a and b in the sense that it discusses substance is listed there and a it's actually listing them and they're in and incorporating them as i want to the offense and tying them to support penalty ranges see it's not listing there and then second the other thing that would instruct there is that that amendment was added to address the illinois supreme court result in manning manning was decided under a precursor to section four zero two a we provided that statute at the end sticks to the brief and that that precursor statute was a stone really blocking multiple convictions under that precursor to for a two way and those are the substances that the legislature targeted as more problematic serious drugs for which the legislature did not want to have to proceed one by one it wanted for those high amounts in those trouble drugs to be able to prosecute more harshly whereas spee please the court i'm erica miles for the attorney general section four zero two see is divisible we have the preamble of the judge hamilton just mentioned explicitly say listed in section one hundred which is the legislative intent codified for the controlled substances act and it says listed here in in section one hundred there are no drugs th interpret ng this preamble language this they refer to this as long as there are multiple types of drugs then simultaneous possession and can still result in the preamble so and but the absence of adjusting for o to see is where i'm going with this as carter points out the legislature knew how to override managing it knew how to authorize multiple convictions for having different types of drugs at the same time it presumably also the knew how to limit that authorization to say only with respect to certain substances or just say only with respect to subsections and b but the legislature did not do that the legislature in the preamble and and the courts interpret in the preamble provide no limitation whatsoever about specific substances or a specific subsections and in that absence it is completely reasonable to infer that they read forro to referring to for a two preamble to be referring to each and every substance listed in the controlled substances act as under the under the schedules and a few of the other statutes that specify or carve out specific substances a case differ from the court's opinion an elder where we found a similarly structured arizona case statute to be indefensible this case is different in every way except for the fact that the the umbrella term controlled substance there dangerous substance is used requiring cross reference to the drug schedules otherwise elgar is entirely the ninth circuit but there is arizona law and the court wasn't presented with the issue it was only looking at categorical match and the sufficiency of documents in that case so in elder the case the court didn't find a definitive case doing its own review not from from the arguments by the parties and it just moved on to looking at the structure of the statute with the umbrella term and having to cross reference to the schedules almost every other circuit that looks at that factor alone has concluded that it's not conclusive it doesn't definitively answer the question and they proceed to looking at state law interpret in the drug statute issue that didn't happen here we don't even have a peek in in elder because the documents there as i mentioned were challenges you consider being sufficient to establish the fact of conviction and the fact that it was a controlled substance so the peak didn't even happen in that case it doesn't need to happen here because we have preamble language that was  that just referring two well because if you look at section one hundred where it says listed here in which there are no drugs listed there and there are no subparts listed there and and  terms in that sentence it begins with the act it ends with the act the term this section doesn't happen until the following sentence so the very first sentences  referencing the act the controlled substances act and then the next sentence says for purposes of this section and that it talks about this section for two so i think you have a very strong indicators within four zero choose language when you look at the companion language in section one hundred which is talking about the legislative intent you had the carter case not carving out specific substances or subsections and then you have all the courts of appeals cases that repeat the same thing in a carter said reinforcing that you a person can be convicted as long as there are two types not some types not certain types as long as there are more true that we have to do we have presidential courts of appeals cases they don't press the issue head on but what they do show is that it's her miscible to have to which amending language that was added had been repealed so this happened twice this amendment this this preamble was added in but it was invalidated because it was procedurally de facto how it was  conviction otherwise it was entirely permissible and the fact that he had been can convicted in one thousand nine hundred six for that you convictions shows that it was permissible the white case involved charges for armed violence but the two a to see drug convictions had to serve as the predicate offenses to then examine whether or not the armed violence convictions were permissible the court there explicitly found that the two for  convictions were proper and those with one of the can retrieve excuse me want to make use of the armed violence conviction so reverted back to an armed violence conviction plus the second foro to see just drug conviction so what happens is when you're looking to get an armed violence conviction you have to have the predicate felonies which are the drug offenses and then you have to prove the gun the gun possession of e so the two drug offenses are subsumed into the gun armed violence so what happened at the and of white was that they kept the one armed violence which had the predicate for all to see conviction one they even did the second arm violence but then convicted kept a conviction for just the second possession for it to sit not the white case and the white case notably involves different a waiver of counsel issues so that's the context that this came out in forty i'm sorry to quarter gross what it did say it had to it had to address whether or not it would be a violation of double jeopardy to send the case bac retrial and they established that the evidence the two for a to see convictions were permitted by by the evidence so a retrial would be appropriate because it does not violate principles of double jeopardy so all  rebuttal i decided to speak to those three cases in case that's helpful we we do and i replied starting at page star then distinguish them and explain why we don't think they speak authoritatively i you know i don't think that any of these are directly on point directly holding that language but the court did not need to and did not directly address whether it was appropriate under the amended language and it did not say this was entirely permissible otherwise there the result was directed by the pre nent language white stated in dicta that the record would have supported two convictions here but it again it was not directly addressing that issue and again it also shed