st to as mystery epis with leave the court my partner will provide two minutes of rebuttal there are two past to decide this case the first and most narrow path is to agree with prior decisions that have held that  thirteen three four zero eight is overbroad and indivisible as an aggravated felony and as a controlled substance offense if the court agrees with those decisions at a minimum remain is warranted to permit mystery epis to apply for cancellation he is an l p r he has lived in the country for thirty five years and this is his only conviction the second path well thirty four a wait is divisible right your honor madrid farfan a very valid being us from this court held that thirty four zero eight is indivisible it the second path is also to address the c i'm t and reason to believe grounds if the court agrees with their arguments it may terminate if it does not it still studies quote indicated that the compounds were both essentially inactive with no evidence of abuse potential and quote well if i or my lives less look at thirty four away we're looking at thirty four only a seven right and it would seem pretty she's sinful that if we were looking at thirty four or eight a seven and we're only looking at a person shall not knowingly transport for sale disagree with you on what you just said but let's go to three four zero eight a seven if i look at a seven and it seems to me pretty simple that if i'm only looking at knowingly transport for sale or import into this state or offer to transport into this state or sell transfer offer to sell that would make it divisible but in this particular case we're not really arguing about those are we were talking about a narcotic drug correct your honor so we're really talking about whether a narcotic drug is divisible right correct your honor and what statute or case or whatever would suggest that a narcotic drug would not be divisible especially when if i look at thirty thirteen thirty four thirteen thirty four zero eight a seven and i compared to thirteen thirty four ost seven that would be divisible thirty four zero seven is to visible is no question but we're looking at thirteen thirty four zero eight seven a seven so i guess i'm trying to figure out why that would not be also divisible correct your honor and math is establishes that only one element of the statute must be indivisible for the statute to be invisible and madrid farfan surveyed arizona cases and noted that quote arizona course of up held convictions even where the prosecution did not prove the specific drug type and quote and as your just a minute there are also cases which would suggest that like for instance state vs patea state first but d h had a defendant he was played guilty did to two possession of the two different drugs and he was for two different specifically rejected those arguments because of a case like state because three in an arizona court of appeals case where where the arizona court of appeals held quote it is sufficient for the state to show the defendant knew he possessed a narcotic or dangerous drug neither our statutes nor case law require the state to prove that defendant knew which particularly drug defined under our laws as a dangerous or narcotic drug he knew he possessed and quote and for madrid for fun that was the reasoning that excuse me  the fact that juries did not have to agree on the particular narcotic drug in order to sustain a conviction was enough for the for the court to agree that the statute was indivisible but i guess my worry has been and always has been that when i read the government's briefs and i read all of those cases in which there was it seemed to me that at least as the thirty four zero seven the drug was important in determining whether there was a conviction or not why would it be any different in thirty four await groener the case was different for thirty four of seven thirty four zero eight perhaps i why would it be any different especially when i could look at all these cases where i'm sure thirty four zero eight one has been convicted of two different counts for two different drugs perhaps i didn't i don't want to speculate into the court's reasoning in those respective cases but perhaps the reason is that thirty four o eight has no separate punishments for the type of narcotic and b contrast thirty for a seven criminalizes identical conduct is thirty four for those with control over dangerous drugs but thirty four zero seven assigns heightened punishment based on the identity of the drug for instance all acts involving methamphetamine under thirty for a seven  criminalized as a class four felony rez other drugs are punished as mr meters thirty four zero eight has the same punishment scheme for all different types of narcotic drugs and view of a chance or finds a significant both in finding the disparate punishment scheme divisible and an equal punishment scheme indivisible on the second path with regard excuse me so on second path arest the court can can determine the see i'm seeing reason to believe  that there was no evidence of abuse potential to be i hear the us was wrong when find that the deregulation and the lack of abuse was quote irrelevant and quote to the c i'm t analysis under matter of corn was to be i relied on trafficking drugs regulated under the federal c s a r c m t's because of congress long history of drug crimes and the evils of drug trafficking which was deemed quote murder on the installment plan and quote selling inactive non abusive drugs which arizona happens to regulate cannot fall in that category if the federal c s a is not the bright line which drugs are or are not included and thirty four awaits inclusion of the very few substances that the federal government no longer deems dangerous or abusive cannot be a c deregulated cannot be a c i'm t on the reason to believe ground the i j noted that the government has the burden to prove this in admissibility ground and as a view of the holder noted an inconclusive record is insufficient to uphold a reason to believe finding for five reasons this record is also inconclusive first so really what your argument is as to reasonable belief is because there is a record it reasonable belief you win correct your honor in this case is unique because we are not arguing that that conviction records can never support a reason to believe finding or understand that but what you're saying is that based on this record attempt to transport a narcotic road for sale as a class three felony and then it says thirteen one zero zero one which is the attempt but all the other provisions of that  amended count are the same as the information that he was charged with in the first place correct you are the original information the statutes are the same however the original information charges a substantive transportation crime and specifically mentions cocaine however the amended complaint instead only charges if you make the amended complaint which is incorporated the plea agreement only charges an attempted crime and only mentions narcotic drugs as he thought was cocaine there was no reason for him to contest one officer's testimony not a court finding but testimony in a collateral hearing at his cleat hearing azmath to says quote to the contrary he may have good reason not to or even be precluded from doing so by the court and quote second the key fact is that the only mention of cocaine comes in something that is labeled in the record as a partial transcript there is no finding made by a judge the officers testimony again relates but the partial finding when the only evidence there was a police report because the foreign affairs manual instructs fact finders not to base inadmissibility quote solely on the conclusions of other evaluators no matter how trustworthy transcript is of  transcript of what oh what was attached to the transcript of what it in the record it is just labeled as a partial transcript we may be able to infer that is a partial transcript of a motion to suppress hearing but we are not one hundred percent sure that's why i thought judge bail was asked you know but it was introduced as a part of the plea right it was introduced as the factual basis at the  responded guilty this is in complete contrast from martinez lopez for example where the trial judge asked martinez lopez on or about december thirty first one thousand nine hundred seven did you sell cocaine base point for two grams of cocaine base he responded yes and as a third as a third reason for the reason to believe ground this record is as efficient as the one in the view of the holder in which this quarter versus the reason to believe finding there the charging document in heroin but mr v was plea agreement and her judgment mentioned only controlled substances if you will found this evidence inadequate because when the fact finders left to speculate what specific drug was involved in a crime even under the lower reason to believe standard good morning honors and no worries for the respondent attorney general of the united states the court should deny this petition for review because one there's no record evidence that compels the reversal of the finding that the attorney general had reason attorney general has it has reasonable either drug trafficking could cocaine record which includes the sworn testimony of a police officer and he testifie in court that it was cocaine the original information the factual basis shows that it's cocaine he had originally from a show that the information with the original charge we're talking about the  is that a basis it my point is that there's no indication that it's any drug other than cocaine everything on the record seems a little a little out of it because i tried  i tried it and i tried to have him talk to me about that i tried to trace this through to see whether we could have any idea that it was cocaine because the only place we got cocaine is in the original information and i got no way to trace from the original information to the attempted plea agreement to anything else your honor two points first in the plea agreement in the plea agreement we're transcript we've already talked about here worry didn't even talk about it he the state court judge stated asked included the transcript as a factual basis and original information is of no relevance here because it's not pled to it is nothing about it i can't find anything about it the best i've got is the plea agreement and this transcript and i don't even know what it's a transcript of which was attached to the judge saying are you guilty or not and he says guilty don't even know what he's guilty of i looked all the way through there to find that i think my questions were always going to be if you win on the issues we have in front of us you still have to go back and make this determination again i can't determine a deer on the appeal there's no way for the reason to believe serrano discusses there's no analysis of what the documents are we know that agents found marijuana at the border lopez molina they relied on a place report describing surveillance sob as reyes there was a plea deal we're going to rely on a police officer's testimony sworn to says the only thing i've got the sworn testimony in the court there's also a radio log which is not a separate document but these are all substantial shepherd documents we've got about yet they are that the plea agreement which doesn't tell me anything under arizona law there must be a factual basis for a chain for a plea of guilty but arizona criminal rules state that it's well established and quite law there has to be a factual basis and this judge in the plea transcript said and the factual basis asked and then he said i take judicial notice of the facts as a deuced at the motion to suppress hearing and the nov eighteenth twenty ten which is the date of the transcript of sworn officer testimony he asked is there any further factual basis and the petitioners attorney said no judge and under arizona law that's enough to connect sworn testimony with this guilty plea and i tell me why i should even get there what is there that would  that i can get a get there under a c i m t or an aggravated felony in this particular situation when i'm trying to determine whether narcotic drug use to visible  responses to that first i think it's easy to get there under the reason to believe which would make him in admissible it just needs to be substantial of probative evidence and i would argue it is so he's in admissible for the aggravated felony ground which face of the statute as well as arizona case law or face the statute doesn't say that it's divisible it doesn't say it just says narcotic drug and as your honor had ok that's where we are that's where i thought we were to you started so why is it divisible it's what kay says it's divisible applying martinez lopez the analysis in that anything in your brief which would say that is that it is divisible i mean there are cases in there that would cite things but they really don't go under this particular statute i just thirty four zero eight entirely visited here i read the jury instruction that says they don't have to agree on the drug it's they don't result jury instruction corresponds with that i mean if you rea that a drug is a narcotic they would have to identify what the drug is otherwise how would you determine that it was a narcotic trial you're arguing that the arizona jury instruction supports your idea that nor conic drug use divisible i think it can be argued that way courts have found both ways i don't know that any arizona case that says that  judge by you go stand to the other side which is finally a court case which says you got to agree on the drug and all i tried to do was go at it different way to give you a different approach i think you will agree that both cocaine they are but i don't think that the jury can find i think the jury needs to identify the drug as an element and i bring it back to markstein as lopez because i think the same issue was that this is an arizona case yes but the analysis that they use they looked at arizona state law excuse me california california law that's why i tried to get you away from that i said that's our case it's on a different state well but the and now says that you know that the use they found that because defendants in california where were teen lee subjected to multiple convictions for multiple types of drugs used in one act therefore they had a definitive answer that the controlled substance was an element and you can apply that same analysis here in arizona i think you really cannot if you look at the state the salinas opposition council quoted a minute ago in state beastliness it says this is the arizona supreme court the elements of possession of a chronic for sale or one picture side to minion and control over the substance to the knowledge the substance is present three knowledge the substance is a narcotic and for possession of the substance for the purpose of the sale doesn't say the jury needs is sufficient for the state to show that the defendant knew it possessed america out of her dangerous drug neither our statutes nor case law require that the state prove the defendant knew which particular drug defined establish the element it's an unpublished arizona court of appeals case and applying the martinez lopez multiple convictions being routinely subjected to multiple convictions is  answer based on published arizona case law is stronger than these unpublished court of appeals cases that don't quite hit it on the head either they don't state that it's not an element they are dealing with other issues and so while they can be extracted and argue that it's not an element i don't believe that it establishes that it's not an element of the case but about attempt we look to attempt seems to me that attempt  solicitation of controlled substances does not constitute attempted delivery under the controlled substances act i see that my time is up who haven't answered my question the score it has and several published decisions sense taylor keep stating that it's a substantial attempts taylor only deals with the prong to the arizona statute doesn't deal with prong one which i think you could have a good defense on but probably prong three if i look at sand a ball there's no way for you to get around that and i  lawful permanent resident such as mr yet as the government bears the burden to prove that he can be charged as an admissible and inconclusive record is insufficient to sustain that burden this record is inconclusive it cannot sustain the charges if there are no furthe