well on the delatour we're talking about the use of his prior state drug conviction writing the aca predicates and it just seems to me that every state statute in every corner of the country you know was has been challenged on to this basis and this is a redo basically he didn't challenge that prior state drug conviction and i don't see  why any later cases have now made this newly available to him we've been holding for a long time that the categorical approach applies to this you know i'm very sympathetic to not clogging the pipeline but you do have an obligation to raise arguments for your clients and so many of these arguments were were successful as we picked through all the state laws one of the time when  but the but the nature of the argument was surely available to me i realize again they're just you know statute books worth of statutes that we've been testing to see whether this is a good actor predicate and whether this matches you know using the taylor methodology or it doesn't and there's a concern of course for phonology you can't use the accident of of a raymond on one thing to reopen the whole range of arguments resorted back to echo the language from taylor about looking to whether statutes substantially correspond to the federal standard which might or might suggest statute or the federal you know generic or the federal statute in this instance and the state law they don't seem to be all that different that they're i one can certainly find differ and we would like the opportunity to provide any additional factual information that we couldn't provide the procedural circumstances of the kinks but i don't think the calmest can stand before the court and say that these substances don't exist states and they kept to that or also clear either subsequent factual discovery or changes in the law and with respect to the primary issue on which my colleague mr hill is focused on that being the distinction between the definition of illinois cocaine and federal cocaine there has not been an intervening change in the law nor has there argument have been in existence since taylor and nine hundred and ninety the rationale being we don't want to go through a mini trial and sentencing added to that sheppard in two thousand and five and which the court added the underlying concerns decision below with everything he could throw at it me he wanted below and you managed to get the district court reversed but i don't think that's a situation where he has forfeited anything and i arguments preserved in the district court gives way to the mandate rule this court is set so so regardless of what side he was on that he had the the obligation if you want to preserve the judgment of argument alternatively and so this court and the st appeal saw as he represented there was one issue one issue only and whether smith should be overruled and he asked for a full briefing excuse me i was his say there is an important difference between the two because he had prevailed in the district court on the smith  issue he had lost in the district court on the aca the prior drug conviction right so he would have to cross appeal i s had the obligation to argue alternatively that it's not that he was incorrectly designated as an armed criminal if if the court and properly considered him and properly considered the nd conviction for the drug trafficking mentioned which he didn't object but i mean it's the court's remand is only going to be defined by the issues that were jurors now braced for the st time the success of appeal to pick up again on judge hamilton's question about substantial correspondence is what they focus on as one solitary difference between the definitions of cocaine by the state and of the federal government definition substantially correspond and then if we look even more particularly at the definition of a nice summer weather to a stereo  formula d of the underlying molecule cocaine seventeen carbons however many hydrogen's nine nitrogen and oxygen and so we're getting down to the organic chemistry level and given that they have the same molecular formula it's hard to argue that they don't substantially correspond even though positional isomers are included in the illinois definition but not the federal definition and then when we look at the states concerning cocaine just from a policy perspective that's very very problematic to seize on this modest difference to create which is certainly kept all of us gainfully employed secondly perhaps an argument even for congress which could write a different statute wanted to your argument depends of where these things are in the on the chain and you maybe it does here we agree that it could have a different effect i think our argument st place based on the fact that we're here under the plain their standard and yes we would like the supreme court to reconsider the categorical approach that we think that based on the categorical approach as applied by the court in costing more most recently  quarrels not to seize on modest differences between state and federal laws and although they said that in the context of generic burglary we think it applies equally here looking at the modest difference between positional eisma that has the same compound as cocaine and we pick up on your question we think i think the point you're making that related to that is the no realistic probability but without getting into that part of the analysis just looking at the two definitions putting illinois definition next to the federal definition and saying that the substantially corresponds even if even when we see the position included in one and not the other but then added to that we do think that they were tora left open the argument regarding realistic probability given that the footnote in that case that that said that the court took no position on the scientific merits and did not limit the government's ability to percent such arguments in future proceedings here we didn't have the opportunity to present the realistic probability argument because he never raised it he never raised the positional isomer argument below and the answer is not to remain and particularly on a double forfeited issue and say well we now get a  opportunity the answer is to apply the plainer standard ask is this clear or obvious if there is a substantial that there is not substantial correspondence between the two definitions and we suggest that it is not clear or obvious and so he shouldn't get the benefit of a rematch and to then further develop this argument that he failed to make twice and either the sentencing hearings i want to address quickly and i don't i'm not sure mr hill is talking about that and the visibility of the statute if he was talking about section four hundred and one as a whole or just getting down to the definition of cocaine or cocaine or an analog i think that the visibility of just to be clear the divisibility of section four hundred and one as a whole is very clear given the different penalties based on different amounts and different types of drugs that is very similar to the federal statute  and elements questions there aren't there's no differentiation among controlled substances counterfeits or or analog as long as it's the same thing so i don't know why this shave it up that far i think you can shave it up based on what i mean elements of the things the prosecution has to prove they stay on that this so but you can prove two different means of you know so there's a controlled substance and you and you have three different ways of showing that that controlled substances there is a controlled substance itself a counterfeiter an analog right well  st it to get to the distinction or not i would say not understand should between the term controlled substance or counterfeit substance illinois definition of counterfeit substance is that so for example cocaine is a counterfeit substance would actually be cocaine but it's mislabeled as my understanding so you would still have to prove it's it's cocaine i think the difference between proving something is cocaine versus proving it's analog is looking at the definition of illinois or illinois definition of animal one i have that at the state would have to prove the chemical structure is substantially similar nd that it has a stimulant or excuse me  that that's not a control so it's intended for human consumption secondly it's not a controlled substance and then there's a rd part of that definition that either has a chemical structure substantially similar to or it was specifically designed to  d also look at the definitions of those two on a microscopic level and they are in fact different and analog is proving that something isn't and that that's always true when they're different means you know one kind of weapon versus another kind of weapon the evidence is going to be different but the supreme court has instructed us that there's a difference between means and the generic element a dangerous thing if you're right and the difference being is what the government asked what the state has to prove and well is that but it doesn't just because the evidence is different doesn't mean that you aren't proving that somebody used one of the forbidden that the things elements are the things that the prosecution must prove right right and we look at it and we look at the illinois statute that says here's the definition of analog so if you're going under an analog theory you have to prove that it was intended for human consumption it is not a controlled substance which is the opposite of proving something as cocaine and then one of the other alternatives and it either has a substantially similar chemical structure or was intended to have that effect of cocaine but i think you're about out i know i know if you want to if you want to wrap up i should have warned you the one minute mark the nd mark now that's all right then thank you very much mr hillis thank you mr walters we will take this case under advisement