and we'll go to united states versus leonard  the conviction has to provide for a maximum of ten years in prison and the second and i think the focal point of this case is that the conviction has to be one involving manufacturing we're distributing a controlled substance or possession with inten to do one of those two the governments admits that it gives conviction under delaware law meets meets this definition in this case the jury would have had to have found and gibbs in fact pleaded guilty to the elements of the underlying felony which was possession with intent to distribute cocaine gives doesn't dispute that he also doesn't dispute that the underlying felony possession with intent to distribute cocaine itself step would be to figure out whether this conviction in fact involved manufacturing distributing or possession with intent to view those two and the government was urging at that point that the court would have to apply them modified categor determination at that point the district court said that it wasn't going to do that because as judge slover judge pointed pointed out if thought that the government didn't have to prove that the defendant didn't have to plead guilty to the elements of the underlying possession with to distribute felony that's simply incorrect and gives has conceded that much on page two of his brief up front he says that the delaware statute does require the prosecutor to prevail and that's when one felony and in this case he cases judge fisher where you have a statute that can be violated in several ways some of which would support that handsome and hundred ninety four even some of which would not in this words if you have a stature well this junk if in the sense that there are several ways in which it can be valid it's not just junk in the sense that the statute itself lists all the ways in which it can be violated it wouldn't we submit makes sense to say that only in those cases where the statute actually whistle all the ways it can be violated could you apply the modified categorical coach because what you would have in fact would would be a situation where you would say well the statute doesn't explicitly incorporate or excuse me the statute doesn't list them out so it doesn't list out every felony in the delaware  code if it did then you would apply the modified categorical approach but simply because it shorthand and says felony and we know based on delaware law and again gives us conceded that the government has to prove or the  distinction and if so in a case where you have multiple modes of committing a crime you're still focusing on what the jury found or what the defendant admitted we're not suggesting that the court needs to look at the facts   the general mode in which the court analyzes the park conviction is to just look at the stats statutory definition of the prior offenses and in this case this the statute can we say that the sentence required a mandatory fifteen the police required a mandatory fifteen year sentence or do we send it back for the court to determine some of the remaining issues years i didn't want to withdraw he want to get out of that that plea but i think with the government putting him on notice and the litigation that with the government putting him on notice of the fact that the arm court that was an option that was given by the government in a letter the government offered essentially to sort this out at the district court level to put him on notice of what the problem was and said we will not oppose your motion to withdraw the plea they could have sorted out the district court saying that well the statute one thing that the armed group criminal act is a sense we don't have to give no this sentencing and hansen's even though like in this case they're going to take the potential range from seventy two months only of the fifteen due under due process is notifying which notify the front which convictions are at issue and affording an opportunity to be heard on those convictions congress has made a judgment that certain kind of offenders people who have indicated that they are there they pose an increased degree of danger were they to possess a gun they please the court my name is dan siegel i represent appellee leonard gives in with your permission i'd like to begin by addressing judge fisher's question regarding the disjunctive statutes and the modified  you because i think judge fisher's question turns on an important question of fair notice and of due process cause i then like to turn to judge fuentes question why the modified categorical approach matters i want to briefly discuss the rule construction and then you know i always tell students doesn't terms in its body and which doesn't use drug terms in the caption of the sentence in which this place under the circumstances the government is using this as a drug predicate and the problem with that is a problem  due process and fair notice because normally when you're talking about fair notice of the offense you're talking about fair notice that you're getting from the text of the statute that's why this is distinguishable from the case the judge fisher dealt with before the question of disjunctive statutes because usually you have defended where his body armor during distribution of drugs or manufacture of drugs or simple possession of drugs and then how do you get this here notice argument you mean the defendant you have your notice that if he wears of the statute the drug conviction which exposes my client to fifteen years to life for a drug problem person who wears body armor during the commission of a felony is guilty of wearing body armor during the commission of court indictment that said that he was wearing body armor during the drug crime but that prosecutor presumably read the text of the statute that i just read and didn't get notice that it involved a drug crime that's the problem you see when you deal with disjunctive statutes like we normally do in these cases at least the statute gives you some no yes i'm not judging here bottom line point are you saying that under no circumstances could this be back to the charge into the modified categorical approach has always been applied to statutes in the disjunctive that was the case the judge fisher decided the the garcia case now the government say well no it doesn't have to be a case in the disjunctive actually doesn't have to actually say drugs in the statute and there are good reasons to do that but the government doesn't cite any case where any body armor during the course of manufacturing or distributing or simple possession of drugs we would concede that that statute could be used as an on career criminal predator but due process and fair notice means you get fair notice from the text missing you just because it doesn't say drugs in the body armor statute it's a predicate offense what i'm saying is the modified categorical approach has always applied to statutes which in some way make reference to drugs i'm saying that if you expand that you have a dangerous issue under the fair notice doctrine because the statute doesn't give you fair notice the drugs involved i think  notice when well he's walking around he's walking around with three convictions yes and you know what this is what this case is all about as he should have known better  shouldn't have had a loaded three fifty seven magnum honest person and ammunition that he did yes ok now are you saying that because that delaware statute to which he pled didn't used the drug a felony if you where body armor in the course of many a felony and there's the problem a person of of common intelligence would not necessarily know that that's a potential drug crime look this defendant was provided with an indictment that provided a drug charge and a body armor charge he pled to the body armor charge in an agreement to get rid of the drug charge as far as he was concerned he was pleading guilty to this statute but the turn next to the question that was asked by judge fuentes why does the category modify categorical approach matter if you limit the modified categor approach to statutes where the drug crime is listed in the alternative then you wouldn't use it in a case like this but you would need it you would because it allows you to drill down temperately if if you think if you lose on that point where does that leave you it leaves us with a statutory construction you know there's a rule of statutory construction that you should always try to avoid reading a statute so that it produces absurd or counter intuitive results and we submit i think just aren't reading well let me let me tell you why i have a problem with the government's reading of the statute because it creates a state definition which is potentially much much wider than the federal definition of a serious drug and here's why when congress wrote the federal definition of a serious drug offense they were very specific about limiting it to dedicated drug statutes they identify the statutes in the t have fifty different sets of statutes and congress is sitting down there you have no way we can bring all these together when they're all different they're written different and i think a very logical answer that are well so then the answer is that you expand the just because the federal three strikes and you're out law specifically itemised the states that use it would be included oh i have to disagree with that argument your honor because the arm career criminal act eight years before the three strikes law i have the sights on that if you'd like me to give it your understanding that doesn't mean that in that they just gain that knowledge eight years later well the government is a implying the rule of the statement of one thing means the exclusion of the other thing but that rule if you look at it applies to where they write a statute before or contemporaneously the statute that you're interpreted statute eight years later doesn't explain why they used a strike which i really it's an example at least eight years later they know how to write let me give you an example  of a situation that shows why there's a problem with an expansive reading of the state definition is a federal statute that criminalizes money and one of the things you have to prove is a specified unlawful activity and one of the specified unlawful activities is drug dealing would this federal money laundering statute come within the government's expand the definition of a case that involves a drug dealer yes would it come within the federal definition under the criminal act of a drug offense no because money laundering is not an offense under the controlled substances act let's assume that the state of delaware had a money laundering statute and that if it had specified unlawful activities and that one of those specified unlawful activities was drug dealing under the government's expansive reading of the word involves the state money laundering drug conviction would count as an arm per probable predicate but the federal money laundering drug conviction wouldn't count as an arm career criminal approach that predicate and that we submit to you is a counter intuitive result and the rules terms and you try to read them in context you have to ask the question why would the congress want a state definition to more harshly deal with similarly situated persons who wouldn't get the and has one of the federal and you know let's keep in mind what's in stake here this is the fifteen year to life statute and the defendant pled guilty to a plea agreement that limited him to ten years and so my final  would say ok he can withdraw his deal we'll send it back now that he knows that this is the way this court interpret the a c c and he can he says he's free to withdraw his guilty plea what's wrong with that and what's wrong with that it puts the onus on us when it's the government who should have been attempting to withdraw from the guilty plea they said in that there was a material mistake the fact there was no material mistake of fact they gave us the state indictment in discovery the talked about wearing the body armor during the drug trafficking  and you'd run into sykes maybe it would have to be listed in the statute in this entire incident seems to be precisely what congress was targeting when it enact the a c c a because the defendants com by but this is a legal question regarding the reach and an expansive definition of the word in an extraordinary statute which forces a judge to give the sentence above the statutory maximum sentence of at least fifteen years and possible life imprisonment so we have to be careful even despite the equitable arguments that if properly raised about expanding the definition too far and we submit to you that if you adopt this expansive reading which would be the first time any court ever has adopted this expansive reading you would be creating a problem under the fair notice clause because there's nobody who could read this statute fourteen forty nine ed and come to the conclusion that it might and come to the conclusion that this is a drug statute and you cannot hold the defendant to a higher standard of notice than the prosecutor who  provisions may post constitutional questions if they do not state with sufficient clarity the consequences of violating a given criminal statute now we're talking about the cia here and i think the government's interpretation of the term involving is not going to leave a defended guessing as to what would qualify especially not in a case where as you have here the defendant state offense actually required him require the jury to find or him that's that's that's correct i think and that's pressure as to the expansive reading of the term involvement the term that my friend used it's not the government's expansive reading of the term involvement the term involving is itself expansive it's an expensive word for statute we're the government is advocating for a plain reading of the statute where you have a defendant who has term otherwise involves and that that term involves in capsule it's more than just the discrete can offenses that are listed before the government as is advocating for the same plain reading have an attempt to commit an offense that would be a serious drug offense where by definition the defendant does not commit you fritz and that would be in our career criminal predicate according to mr gibbs and yet a cocaine that that can be that and subject you to fifteen fifteen years minimum and life and he says there's no no this after you answer that i'm as i understand it that's precisely what he said that well i think as to the modified categorical prochoice your honor in the police actually concede that it does apply just it doesn't apply only in circumstances where the results would i believe he says contravene intent of cars and i mean i understood the modified horrible approach to give precisely the kind of notice he says it doesn't give in this  the answer would be that it seems it's it seems unlikely that a defendant who actually pleaded guilty to the elements of an offense that is possession with intent to distribute cocaine would therefore say they didn't have noticed that conviction could possibly involve one a manufacturing distributing or possessing with intent to do one of those two and therefore qualifies in an a c c a predicate it's not as if he were you have been committing a money laundering