our final case for today is united states against robert tate mr connors in the thank you for hearing this case on behalf of your talent robert take the issue one of the issues that's been raised here question is whether the district court erred by taking the probation officers recommendation that applied the controlled substance offense provisions found this to be a violent up of that and one of the qualifying predicate offenses which elevated mr tate's base off its level from twenty eight to thirty two is your big issue that this was an attempt offen kind of evolved on this topic it it's it's based on the fact that first of all in hydrous ammonia is not a listed chemical which was somewhat of a surprise to me at first prize it really i mean you know unfortunately we've all learned a little bit about conviction already required to link to to the men and that him that to me forget it indeed it does and not aware of anything that excludes attempt offenses that maybe you can tell me well like your honor i think first of all that  clearly the government's position was that because this was a class one felony and that the illinois legislature said that if you add the tag line intent to manufacture with respect in hydrous this is a serious drug offen should qualify but i would suggest that that's maybe a pathway to the first part of the analysis but you can't get away from the guidelines to the specific provisions of the guidelines which are laid out under forty one point two which quite clearly describe manufacturing and so i suppose that to that extent your honor i agree with you that since this was not manufacturing per se attempting to engage in the procurement of something is in quite as i' suggested my briefs well for p one point two also includes the possession with intent to manufacture it doesn't just cover manufacture well the it covers and i guess you almost have to look at what he did what he charges specific were attempting to correct any circuit conflicts on this point b because there are obviously was some confusion on it council because i mean you've got a terrific textual argument frankly i think given the very specific provisions for the three necked flask and equipment in listed chemicals and what we've got here is not a listed chemical and he's not convicted of u g g and manufacture but i guess why would the suns in commission have drawn the wind were he did were and where you are you would write well i think to some extent because it's chemistry and i think that congress congress has to ask the question should we else you need and and you're getting all set to when everything is called this is shake and bake method of manufacturing your methamphetamine it's not a big stretch for me to think that the sentencing commission thought that though that wasn't you haven't yet manufactured it but you put yourself very close to being in the position to do it and they thought that counted well obviously the illinois legislature felt that for purposes of making this a class one felony it did qualify i guess the real question is in the context in fabric of the career of federal guidelines there is some notice and a playability issues that are relative to just fairness and due process and in terms of this particular offense i think you really do have to look at whether possession is significant or not is a constructive possession but the attempt to engage in the procurement by that language alone wellness are expressed lee's swept in under forty one point two and so then the question i've thought about some of the possibilities what if you pick up the phone and you call out to a factual increase it's just a legal and crude inquiry about the elements if this is an attempt offense it's and as long as it's judge recognized that this was a gray area and i think it's that but he did not say that this would be harmless he didn't say he would do this regardless of the legal doctrine he did not he clearly sided on the side of the fact that this was a predicate offense designating my client as a career finder statute on the relevant conduct question i gotta say that looks like a pretty pure credibility finding to me read ability finding your honor absolutely give us your best shot or well th the the fact of the matter is you have an enormous swing of relevant conduct and it's all part of this conspiracy but it's not clear exactly conspiracy with him just because he's in a romantic relationship with one brandy pierce you have a point two grams of meth on the table in trial and four hundred in the closet so it's all notional suggested based on that not literally in the closet not you know joran i want to you don't want to use that term were involved miss huston involvement was that she provided a place for mr tate and many others evidently including herself to make methamphetamine was this the conspiracy that the government proved what was used what this test was to prove the relevant conduct somewhat differently but the same is brandy pierce who if you see that colloquy between not only and directed cross examination indicated that if you really she believed she had nothing to do with it she didn't really admit that she was and she signed it pills and crushing the pills though yes she did have some involvement and the question is is all of the defendant's meth making part of the conspiracy simply because she said if she simply represents that i know he made meth every day but does that represent of the conspiracy with with anybody else and including her ok to your arms thank you very much substance offense under the commentary but if you possess an hiders among a necessary chemical it isn't i understand i guess i would address the court to there is a federal statute involving stealing and hydrous ammonia for the purpose of manufacturing method that i mean and the controlled and subs subs are section and if you attempt to steal and hide your somalia to do the same thing it would be a controlled substance offense under federal law so i'm i don't think this is the sixty four there is a federal statute under that's under title twenty one that it's unlawful for any person to stealing hydrous ammonia or transported across state lines knowing intending or having reasonable cause to believe that it be used to make a controlled substance and i suggest state statutes just like the federal statute but the mens rea is even more specific in the state statute you have to definitely intent to make methamphetamine with the federal statute it's knowing or intending or having reasonable cause to believe ok so help me with the text with working with the application oh do we have unlawful possession of the listed chemical with in manufacture of a controlled substance but it is manufactured who does art but he didn't manufacture and we've gotten to notice that extended to certain kinds of preparations but not others i understand your honor i'm the only thing i could direct the court to is there's an eight a it's a legal issue your honour's are far more equipped than i do to and allies the statute but i thought the government believes that squarely fits into the guideline definition of a controlled substance to this make it different it irrespective of the career fender status he had a number of convictions a number of those though i believe were only one point convictions because he received probation so he may not  listed verses on list of chemicals and it said that those that there should if there are provisions of the sentencing guidelines are intended to be harmonious and complementary of each other not some type of thank you very much all right thank you very much and you took this by point