else would impose it doesn't impose certain it can be finally imposed in the sense of the final judgment becoming violent i think works in it's a party for imposed meaning anything other than the district court i think there are two ways to look at it of course you have the court decision which found exactly before the date of an act the act and then it goes on to specify that specificity specifically it shall apply if the sentence has not been imposed now that language is viewed by the government as a restriction on the x a i think we're congress understood is that this court generally presumes that judgments of sentencing are going to not be on up until the appeal period is concluded and when it said they're not viable we view it's the same way that this court reviews final judgments and final orders those are deemed under statute and rules there is a final judgment entered by the district court that's what makes a final judgment or order appealable that's why this court can take advantage to take it over but still this court then consider it in this context in terms of applicability that it's the judgment is actually not final final until it until the appeal period is concluded so there are two different ways to view these did was take the phrasing is different isn't that experience find it impose means final final final in the district court and finally the court of appeals aren't you know i'm saying that it has to be finally imposed again we're working against the presumption the changes in the law are going to be applicable cases on direct appeal until the judgment becomes pile and we're talking about imposition of a sentence that means the sentence is not finally imposed the judgment of sentences up only imposed until you get to the final appeal period and again i think that exactly congress simply say that the it actually does apply because the purpose of the act is so clearly remedial we can go beyond that and by necessary implication we find that congress intended to apply particularly to these circumstances in cases which judgment a sentence has not been imposed congress looked at that looked at the result did not want to occur in this case with the fair st step back and so addressed particularly that situation what the what the language in this case does not tell you it does not restrict it anyway the applicability of the act to cases on direct appeal so at that point you do need to i believe look both at the other language in the statute in the act and also to the purpose of the act and i think that really gets to the point where you see that it has to apply to cases on direct appeal and i cite this court with respect to the text to two particular provisions that is  which deals with the applicability of the safety valve provisions and in that circumstance the act states and forward to be that the the amendments shall apply quote only to convictions that are entered after the date of enactment that is a limiting language only two that's what they use though they did not use that in this particular four hundred and twelve and then you look at four o three which deals with the fair sentencing act and in that provision congress made amendments to apply even to post conviction motions and so in that circumstance they really specify what should apply here in for a want to see it makes reasonable sense to just to assume that they struck a middle ground they wanted it to apply to create are circumstances after entry of a conviction to cases that were pending while the act was enacted at some direct appeal the language is not necessarily clear as to applicability on cases on direct appeal and if you go down to the purpose of this particular act i don't think there's any question that this is quintessential for media legislation that is intended and designed to protect in the federal criminal justice system from the draconian sentences previously authorized by section eight hundred and forty one dollars b and those individuals include not only people on direct in the district court also individuals who are on direct appeal whose judgments of sentence have not become final you can still benefit directly from the act and could you go into the predicate acts we have a situation here where mr obvious was convicted and in his indictment and in one instance in his guilty pl standard medical reports there's no question that these three statutes do not satisfy that approach because they include cover in controlled dangerous substance in the travel ban so you have to go down and you have to find that the statutes are de biz of all because drug by drug type that is you statute may be deemed divisible the nd question only if you find the statutes are divisible under state law based on drug type only then do you get to the issue of whether the can the records of conviction actually show that heroin was the drug involved  it not be defensible we have this list of drugs but the point is you have to look at the fact that a an itemized construction is provided an itemized list of facts as provided in the statute does not establish or creat presumption that those facts are independent elements that's what happened to find the fines that would be attributable depending upon the drug are different the point is now point to the fact that there are elements and not means you know this and you're talking about to prove it in thirty five dollars for you know the fact that this is the element of the statute in that particular case is that the value of all control dangerous substances that's the element now the facts you have to determine in terms of figuring out what how that element  satisfied or what controlled substances are involved and what their value is but that can be different it doesn't matter what the element his it's the value of those so you could have three separate cases in which juries find the value of one hundred thousand dollars in the st case the controlled substance  exclusively heroin in the nd case exclusively cocaine and the rd case is the mixture of that including the transit pam or anything else that doesn't matter those findings are what mathis referred to as facts means they go to the element they are not underlying element hiding that is not an element of itself so in other words whatever controlled dangerous substance is actually found at the location it doesn't change what how the penalties are going to be applied it only changes the finding of the jury what what the final finding that is the element of the value of the controlled substance whatever they are it doesn't matter the element is the value of all controlled substances on the nalgene would be if the statute instead said the value of all contraband nobody would argue in that circumstance that the car you know whether a car is present is an element of the events whether stolen jewelry is an element of the feds know what those are facts those are what i said and that this group facts that inform the filing of the elements not elements of themselves and that's how both of these new jersey provisions especially view with the facts underlying the finding that there is an element of a controlled dangerous substance the nature of the controlled dangerous substance doesn't matter because it doesn't affect the penalty it doesn't affect the nature of the crime it doesn't affect the grading certain could play into it could play into basically any case but in this circumstance i think there is a very good reason because we have a question we have a statute which doesn't distinguish between drug type for penalty purposes which doesn't create gradations like the like the pennsylvania statue did in united states versus henderson with a very different two sets of cases here two sets of statutes excuse me which can be interpreted and i think should be interpreted in accord with the rule of law of the not to be divisible and in fact i think that makes all the more sense because this question is based principally on state law and there are no state decisions holding the drug type is an element under these particular projects stuck it back to the fact that we have heroin clearly indicated in the document but three you peek at the documents the judicial records to see how the process speak you're looking at them and they can be china tip can they not know they cannot be your honor that is because work for these purposes what you're doing is peeking at the documents to see how they generally treat drug do they generally treat drug type as an element rather than a fact the question here is not whether they actually show that the offense at issue was poor heroin it's whether it treats as an element drug type heroin and besides when i am peeking  in a case here where it's very clear from the court documents that heroin is involved why can't we simply acknowledge what is in the record because in that circumstance you without making a binding st that drug type is an element under the statute you would be basing the finding that the categorical perches been met not on the elements of the statute but on the conduct of angels dancing on the end of the key and it is not your honor  was well we can see that the conduct at issue here was heroin that this was an heroin offense that is a conduct inquiry that is not the inquiry prescribed by mathis in terms of visibility we're looking at the court documents only to see whether they actually treat heroin as an element and these documents do not and if you look at the indictment in the new jersey offense forward maintenance of a controlled dangerous substance facility you see this if you see the indictment and it's appears on page by forty six per count one it refers to that if you are go good morning your honor student serving on behalf of the united states looking st of the st step act i believe the language that congress included in the st act it's clear that the new reduced penalties would not apply to mr v a s here because his sentence was imposed prior to the date of an act meant that is the best reading of the statute is that sentence imposed means exactly what your typical person would think that it means when the district court says i sentence you to in this case life in prison not upon further review when i do agree with mr sorenson that the reason congress wrote the statute that way was in response to dorsey dorsey reach this exact same result and said look what we're going to say that we're going to apply this statute to folks who are sentenced after the enactment not before but for crimes that were committed before hand and when you look at assume that the defendant he shows up or sentencing he's brought in from custody judge comes on the bench but the judge is told by the defendant that this isn't just going up this morning that morning it is time so was  things that was talked about in dorsey however was how i view minimize those disparities and i think that if you look at yes you might have a situation where that occurs because the language is clear in the statute that is only one's a sentences imposed and if a sense is not yet been imposed in a case like that then it would apply if they came back four and a half months later after the relative was in better health however you can say that there would be perhaps even more likely examples of the opposite happening if you follow the interpretation his case so you could have two defendants sentenced to the exact same sentence on the exact same day if one of them chooses not to take an appeal but the other one chooses to take an appeal no matter how prevalent and it takes a while for the court to decide maybe for legitimate purposes dorsey looking at what how we going to minimize those kinds of disparities because congress has drawn the line where it has then it makes sense to go with the standard language you know what most people believe sentence imposed means and in fact dorsey also discusses if you want to avoid the overall strictures of the saving statue you have to employ the language here you must use in to look for interpretive considerations that point clearly do something that you know cuts against what the saving statute would with force of on interpret in courts and there's certainly nothing here that clearly says or you're going to treat this is being a sentence imposed as meaning once all review is exhausted and even even turning to the rule of lenity what is what is the basic consideration for the rule of lenity it's putting defendants or potential defendants on notice but what we're talking about here is actually giving them a more complex maybe not to lawyers who deal with this every day but the potential defendants saying wall imposing sentence doesn't mean one of the court comes and says i sentence you to life in prison it means something else the courts would be really burdened with a lot of the most difficult sentence as well those that are kind of in the in the pipeline are on appeal where there's a life sentence congress might have i don't know might have been you also about the burden on the courts of having to rescind all the toughest cases and i'm very about the th amendment suppression of the franks hearing presumably he would on on the bottle do you want to talk about that at all or is it well i mean the overarching point i don't know there's much that i need to expand upon beyond what i put in brief however was the key here is that at this stage that the court was proceeding at the time it was the burden of mr avila's to prove or at least make a substantial showing i think that that's the language that likely reason for this you have a general statement about how controlled by it's happened and generally control buys involved mark currency or photocopy currency in this case there was other personal property that was use you did not have a situation necessarily where he the police officer is trying to hide the fact that there is personal property being we know we just don't know that that's exactly what he's asking for full and you're assuming good faith an innocent negligence if you will but how can we assume that without the least some kind of hearing in finding small that there is the problem an error in hearing it under firings it is the  burden of the defendant to make that preliminary substantial showing that there was reckless disregard and in a bit the court and wilson and youssef has stated what that standard is and it's higher than just oh i've pointed to something that may not be true it's you know some significant or substantial showing that there is willingness to affirmatively distort the truth with a high degree of awareness of the falsity and that the appian must entertain serious doubts about what he wrote and  versus negotiable instruments and he said straight forward that there were those items that were exchanged and i believe two occasions as opposed to market currency be so there was no false would that i found i relationship between the told that bet is an argument that there was a separate relationship that is an argument that mr sorenson has raised however when you look at the transcript the context of the question about this other relationship makes it clear that that relationship was that the confidential important informant was a buyer and of us was the seller so as far as what sort of separate relationship i don't believe there was one the government doesn't believe there was one there was a buyer seller relationship which is certainly made clear by the fact that the confidential informant is participating in controlled by his continuing her role in that same relationship as a buyer and  and then you know briefly to finish up on suppression issue there's the metairie ality requirement again cranks even at the preliminary hearing stage requires there to be a substantial showing of materiality and frank's directs the court at that point even at the stage to look at ok if we put in these facts that were emitted or we could in the accurate facts if they were inaccurate facts doesn't change the probable cause finding and that there's i don't see any way that you can say that changes here because you have all of this information that is provided by the confidential informant which is absolutely corroborated through independent sources and other information that the police already had participated in a controlled by total five with mr of us you put all of that together and look at the story as a whole there is still probable cause and that means all of these errors all of these omission  while in the in the briefing certainly listed all of the various information that was available to the police at the time some of it coming from a competition informant you know of us was known to them as a potential drug dealer she comes to them and she says look i have made buys from from this individual he is a drug dealer it confirms what they already know she's able to independently show that her knowledge of his residence they are able to independently confirm that she talks about how she has engaged in things that involve the black chevy tahoe that they find out is registered to his son and when they do control buys some one of them i think actually takes place in the taco another one he gets the drugs out of the top home and gives it to her there are the eight controlled by have to take those out what you would do because we're talking about omitted information that it was property you would tell the magistrate in that case or the warrant issuing judge look instead of currency it was property legal property that was and and our position is and most likely was just negligent grafting but back to your question so you would still include those two controlled by have to use information that it would be property instead of car it was that you want to address the issue of the predi statute united states versus powell recently decided and the fact is there is no clear case law out of new jersey that states whether the identity of the controlled substance is an element or whether it's just a means so then we have to go through that matches for a map and look at all the different things that justice kagan talked about in math is to determine whether they are elements or means and i think if you follow that road map and you look at things like the suggested pleading forms which have a space for putting in what the controlled substances you look at the jury instructions which have a space for what the controlled substance is you look at the punishments that are available in each of these two statutes either the jail time or the fines it requires a finding of exactly what the controlled substance is you then move on to the fact that you do have listed schedules a closed universe of what can be a controlled substance that was something that was royal relied upon in henderson that's something that you look at for determining that it's not just a list of illustrative examples which is what mathis was worried about and so what you have is is something where you do have to prove ways versus exhaustive list of crimes and you can you do that just by looking at the list well i think you say what you're looking at other things like i think in a western of west might be something along the lines of saying ok it's illegal to do a b c or d or something like that very much like the residual clause which we don't have to worry about it more or answer this is it's illegal to do heroin debt or that of that of that or x but it is a close list there isn't it vacation i needed after having dealing after having been dealing with the categorical approach as long as as i have recently and i think again you apply the math this test you go through that road map you apply henderson the reasoning in henderson this court has already applied to the pennsylvania statute which yes it's slightly different but not in any meaningful way as the organ powell that i referenced just i'm a minute ago did find that here using the material to the warrant application and while there were some discussion over whether there was a generalized statement that money was used in all of that and that maybe that was a cut and paste job there was actually a direct misstatement the warrant application itself states on page fifty how would there not be probable cause here in any event such that whatever was amid it was not material well i think in this case you have a few reason for that st of all you do have the two very clear discrepancies on what was what was involved in the control by and really do go to the component of the testing the informant reliability and her conduct and remember here we're talking about not the final probable cause determination by proponents of the evidence we're just talking about getting to a hearing where we examine the witness the informant to determine what was the negotiable interest what was her history but they did they followed up on all of the things they went to the property they saw up cars pulling up in the back for a short time and things being exchanged in the window they went and saw his prior history i mean they they confirmed that he was a drug dealer with their own independent best again i think that that may be the final conclusion of the district court the difficult would be entitled to make that determination in the st instance what we're talking about here not to belabor the point is whether there should even be god hearing we're only talking but materiality is the heard but they're not here but only if they're like you said that does not require that you show material materiality by it merely shows that there might be an issue with materiality you might be able  to stablish that you have sufficient evidence to call some question and i want to get it would make would be what is the late night of the lake that would possibility i think if you can examine the issues of the informant maybe she had she did have a preexisting relationship with mr v is maybe she was acting out of unable to ask about and that's the purpose of the franks hearing itself is to allow these questions so we don't have to engage in what you call correctly you did have a full pre trained hearing it while i don't it wasn't a full creeping thing because we were we were not able to in examine the informant for instance what the negotiable can you simply throw out the bad descriptions and focus on the good ones depends on the nature of the problems and it depends on the nature of the emissions and depends on the nature of what they didn't disclose regarding the informants heroin addiction for instance although it may be necessary to throw out all the information she provided which is done in places like a club or a law or it may not be but the point here is that at that point the descriptions you're talking about in terms of when you throw stuff up what