jury trial for being a felon in possession of a fire he challenges the sufficiency of the evidence as well as increase to its base and that's level i will reserve two minutes for a bottle starting st with the sentencing challenge the district court erred by increasing his base offense level base pad to prior convictions and i would delivery of a controlled substance conviction and illinois deliberate controlled delivery of a controlled substance conviction turning st to the illinois specific challenge mr illinois statute of conviction is overbroad and does not qualify as a controlled substance offense up to the guidelines because it criminalized the substances not covered by the cat by definition understand has garcia controlled substances as define didn't address the issue oliver sorry our latest case follow rules with respect to section eight hundred and fifty one without citing our car decision in jones was the guidelines case as as this one is the analog in illinois law is the same as the m one up in the federal statutes of the sun loses this is this issue is a little different but  was relying upon it all or that all of it didn't involve any challenge to the guidelines so it didn't address whether ruthless controlling on that guideline issue that wasn't part of the oliver decision and  that acknowledges there's two different frameworks at play between the two courts the th circuit says that it's limited to the c s a the th circuit says it's not so that's why but my point is jones is now controlling because argued it included analog within the illinois statute and because the plain language of the controlled substance offense guideline doesn't include an a lock that it was over broad and the court limited to that specific it didn't qualify now to determine whether it allows for part of the controlled substance of fed's definition the jones court looked to the c s a and said oh under this federal statute it includes analogs and therefore it's within the definition of controlled substance effect said to the guidelines so just generally kind of as a broad statement these kinds of drugs over bret substance arguments are quite frequent and so when a court addresses that a drug statues overbroad for one reason it doesn't that for close every other potential argument that could be made so even though let me just grew the thinking precisely through these cases it's not clear the this issue where this issue that clear good all it's been decided but doesn't at least require us to address the conflict in the circus and which depend on state law the other is because there's ambiguity whether what controlled substance means under the guidelines definition and the drum up presumption comes into play and under that these federals spectral guideline should be interpreted in accordance with federal law so i get all i want to talk to you about your arm so i will be great group with you the joneses are going trolling because it was a different issue but i'm less convinced that serious garcia answer the question and i'll tell it you know it's not conclusive to the argument we need to make it's if the court wanted to be more definitive that it wasn't binding then it would have said so and sanchez garcia has been cited in a later case  santos for the principle that it's limited to the c s a for purposes of a controlled substance offense guidelines and i think it's not just the th circuit that i think has set that state circuits position i think the nd circuit has also indicated that they have circuit is on this side of the circuit split welch of course that's not necessarily binding but it is indicative that this appears to be a strong holding that controlled substances clear because there's no you know just as a controlled substance it doesn't say controlled substance under state law that means it's ambiguous and that's why the drone presumption comes into play and says when it's ambiguous then we need to interpret it and  accordance with federal law i think that's also consistent with taylor it's also consistent with the overall just purpose of the guidelines the guidelines are there to ensure uniformity in sentencing if there's no you know really solid federal stat federal standard then you're not going to have this uniformity and that's why in the ward th circuit case the concurrence the chief judge said that's exactly what will happen you know you could have one state which punishes a certain controlled substance and the little comprehensible in this context is that the reason why you did go and why i think there's three reasons why this doesn't apply the st is i think he's relying on a check to two facts the district court makes a reference to what the conduct still applie the defense counsel had objected to the narratives in the p s r and the government didn't put on any sheppard documents to prove up these park convictions so there's no evidence of any conduct nd at this misstatement it's confusing the district court talking about prior drug trafficking offenses that's not what the court was dealing with here the court was trying to determine if they were controlled substance offenses and finally just the idea of it seems to be not an alternative sentence considering and fifty three a factors it's an alternative sense by saying this categorical pro choice you know i know we're supposed to do this kind of technical argument but i still think these qualify and appointed and make the brief that's struck to this well is that this statement didn't occur when the district court was pronouncing sentence which is often when it happens because the court is going through the thirty five dollars to three dollars a factors this came after the ruling on this guideline challenge there are still other guideline categorical protests still that they should qualify so it's not enough to establish harmless there that's close go thank you may it please the court miss click my name is andrea glasgow and i represent the united states of america in this case i'll pick up right where he just left off and that is harmless error the government's position that this case can be affirmed o st the conviction should be affirmed because the evidence was more than sufficient based on both eyewitness testimony and circumstantial evidence but also that the sentence should be zero for both because these convictions do qualify as predicate offenses under the guidelines because i don't see that anyone your honor so i'm looking at page four of the sentencing transcript where the court states so i find paragraphs forty six and forty seven provide the support for the base offense level of twenty under  sensing guidelines or rather twenty four rather both of those family drug traffic offenses qualify and if for some reason they did it i would still apply them to the conduct and that the guidelines are addressing that is someone who possesses a firearm after being convicted  trafficking and is someone who are of more concern to the court than someone who has it and here he clearly has been convicted of those offenses and i think from that statement your honor to serve it was stating that whether or not they technically qualify as miss like said the cases on this issue are various at this point but the court is recognizing that delivery of a controlled substance under both iowa and illinois law which come before this court frequently article are drug trafficking offenses and they're very poor  more concerned with that behavior than someone who hasn't and they find that an aggravating factor for sentencing and i think that's what the court is saying there but moving then to the interpretation of the guidelines i think what was being insinuated earlier or  following the definition under the controlled substances act the guy minus definition makes no such reference and certainly as it's pointed out on in several of the cases the sentencing commission knows how to make a cross reference and in fact in the same definitional application  violence commission did make cross reference to statute and so if the intent was that the controlled substances act definition be controlling then certainly the commission could have stated that additionally the fact that the guidelines that addition does include agree with you you still lose and so the what there question of whether the controlled substances act definition was controlling for purposes of the guidelines was not before the court in sanchez garcia and i think that reading of the that opinion is clear that that was not being decided or held that the court was simply stating that's how mr sanchez garcia framed the issue and even taking it as a friend that he still  the rose reasons we don't believe sanchez garcia is binding on this court to believe that ruth out of the th circuit and ward out of th circuit will have persuasive analysis on this topic that the inclusion of state offenses in the guidelines the lack of reference to the well i think that the thing to consider is what makes sense in this in this area and i disagree with what was said before i think that's the point that judge darby was getting at is there is a reason for consideration of what conduct is being dealt with here is not a statutory enhancement that requires the court to enhance the sentence it's a guideline provision which states that a recidivist someone who has committed prior controlled substance offenses is more dangerous and when they possess a firearm and that's exactly the case that we have here because we believe that the evidence was sufficient uncle's eye witness testimony and circumstantial evidence and because we believe that mr anderson's prior convictions are controlled substance offenses for the purposes of the guidelines calculation and alternatively that it was harmless