firearm at sentencing the district court enhanced or effectively doubled mr maldonado as offense level from fourteen to twenty eight before acceptance of responsibility on the basis of erroneous procedural rulings first the district court concluded that mr maldonado had to predicate convictions for a federal felony controlled substance offense as defined in the sentencing guidelines those offenses were from the rascal in iowa that had the effect of increasing although from fourteen to twenty four and then the district court based on authority from this court enhanced mr maldonado guideline offense level from twenty four to twenty eight on the basis of a ruling that he committed another felony offense in connection with his unlawful possession of a firearm i'll start with the issue of whether mr maldonado had qualifying controlled substance offenses in the eccentric time or interest all address the other felony offense issue toward the end and the issue of whether mr malden auto had controlled substance offense convictions under the guidelines requires careful consideration of the supreme court's recent decision in mathis versus united states effectively there are two steps for this court to take to determine whether the predicate convictions from nebraska and iowa constitute a controlled substance offenses the court must determine whether the nebraska in iowa statutes of conviction are over inclusive and statutes over inclusive in this context if it can be violated in such a way that's not a controlled substance offense under the guidelines the court mus analysis or mathis analysis that another step and determine whether the statutes of conviction are indivisible or divisible and it's mr maldonado is position the both of them are asking i was statutes of conviction are both over inclusive and indivisible and therefore he did not have qualifying controlled substance offenses if i understand your argument right you're saying they're over inclusive because they include offers to sounds not right direct your honor i couldn't distribution is defined in both the nebraska i was statutes as the actual constructive or attempted transfer of a rolled substance in the question becomes how do you interpret that language and what i'm saying is i'm analogizing to nebraska from nebraska and iowa in the brief and if you were to sum up the four nebraska i would state cases cited in their they would hold up the proposition that merely facilitating a drug transaction could be at least aiding and abetting a controlled substance offense under nebraska or iowa law or attempting or something of that matter and i agree there is no nebraska or state i would state case that i could find express lee on point for the proposition that an offer to sell would be enough but you could imagine it wouldn't take much to stretch from those nebraskan i was to cases that are cited to get to the point where you're dealing with a mere offer to sell so for instance if a defendant arranged a sale of drugs whether or not he or she had possession of the drugs but her his idea was to see who would actually purchase the drugs didn't actually have a bonafide interest in conducting the transaction our position is that that could be enough under the very broad definition of delivery or distribution  in this argument does require consideration of circuit authority from the fifth and second circuits where those circuits have held that an offer to sell is not a controlled substance offense under four b one point to be the the distinction of course is that in the fifth circuit with the texas statute and in the second circuit with the connecticut statute those statutes expressively included an offer to sell in the definition of delivery and i agree that that's not the case with the nebraska and it was statutes but for the reasons i mentioned i think those statutes could be applied in that matter it's not just theoretical when we can't find the case on point very difficult to research state laws theoretical doesn't it in a way it's not we can't point to a specific instance but it doesn't require a fantasy or anything like that to apply the statute in that easy question but relative to the question of whether the statutes include an offer to sell i think that ideas in this instance for divisibility look at the texas statute of course that's where you start your luck to state case law and then if those don't give you a conclusive answer you can take a peek at the record documents that were submitted to sentencing as defense exhibit c and d and when you when you look to that authority it becomes clear that delivery is in divisible under both statute or distribution the i mean the same thing in nebraska in iowa law and what that means is when you look to the math this case the court says that if if there's a factor in a case that needn't be proven beyond a reasonable doubt to sustain a conviction that it's a means of commission or simple fact it's not an element to the crime itself and the argument here is that there's nothing to suggest either in the statutes or in the case law or if you take a peek at the record documents that would suggest that the prosecutors in nebraska and iowa are required to prove the means by which mr delivered or possessed with intent to deliver or conspired to distribute the drugs can we go back to the offers to store is it your contention that offers are encompassed by the term distribution that used in the statute used in the nebraska i was statutes correct term distribution right right well isn't isn't that the exam term that used in the generic offense and if so why why would we interpret them any differently in nebraska and iowa we have the benefit of unlike the guidelines we have the benefit of separate statute that defines delivery in distribution and delivery in distribution are defined alike in both the brass and i as the actual constructive or attempted transfer of a controlled substance so that's the prime textual difference between four b one point two and the nebraskan i was statutes and so what about that definition in iowa nebraska suggests that distribution includes offers to say that's where you have to look to the case law to determine what nebraska and iowa mean by for example a constructive transfer or an attempted transfer answer the question of whether that's broader than we would construe under the sentencing guidelines context in attempts are specifically included under the guidelines right correct correct and the question becomes somewhat more difficult when you look specifically at than the brassica conviction for mr maldonado he was convicted or offense that i frankly never heard of before in the criminal attempt to conspire to distribute so there's many layers of what he was alleged to do there and even in i'm not saying you should but even if you were to engage in a modified categorical analysis and you would look at the nebraska record documents it's really not very clear at all what mr maldonado would have had would have had to it met for purposes of that attempted conspiracy to distribute conviction but as i was saying with respect to divisibility there is nothing either in the case law or the statutes or a peek at the record documents that would suggest that mr maldonado would have been required to admit the means by which he possessed with intent to deliver or conspired to distribute the means of delivery is not an element under nebraska or iowa law we don't have the benefit of a good case from nebraska on point i would submit that if you just look at the statute it's pretty clear that it's in the visible but in iowa we have the williams case from the iowa supreme court cited in both parties briefs which makes pretty clear that i was supreme court has said that the section one twenty four point four zero one at a  different nomenclature back during the williams case but that doesn't define multiple offenses defines multiple means by which you can commit the same controlled substance offense i mean are you familiar with the first  circuit cases that suggests that an offer to sell could qualify as a controlled substance offense if it required actual intent in the a bill if the statute state statute required actual intent  look at the the definition of delivery or distribution under iowa or nebraska law the actual constructive or attempted transfer if those states are excluding the the instance in which there not a bonafide intent to transfer the substance in the air and so that's our distinction with the first in the six circuit cases and that's why i believe that this case falls a little closer to the fifth and second circuit authority on a offer to sell that doesn't have actual intent to complete the transaction as i was saying if even if you engage in the modified categorical approach it's not clear from the record materials what exactly mr moulden auto it needed in the context of pleading guilty to those nebraska iowa convictions so i ask the court to find that he was not he did not have predicate controlled substance offenses briefly i move to the other issue of whether mr maldonado had another felony offense in wethers offense level should've been enhanced by for this court is bound by the two thousand and fourteen decision in walker and i'm raising the issue primarily to preserve it  future appeals for mr maldonado i would ask the court to pay careful attention to judge by separate opinion in the sanford case explaining how this iowa carrying weapons offense is is very unique in that while it is armed with a handgun within city limits obviously most of the cases that we get are from the city limits so there's not really conceptual difference between carrying weapons in the federal offense to which mr maldonado pled guilty i would direct possession who had stone a firearm from a police station while doing community service work six circuit said it was fair to apply the four level of hands been in that instance because the possession happened at the same time as the theft and the six circuit said that the triggering application for the enhanced it must be a separate must be separate and distinct conduct from the under underlying offense so we have a split here on that issue with the eight and six circuits i simply asked the court to take a look at the issue and we preserve opinion that you authored and it is not cited in my brief frankly i became aware of it yesterday and i will with permission of the court submitted twenty eight a letter of this is the fletcher case and i think it's clearly addresses a different offense but the same context of the categor approach and how we look at a categorical approach and in that particular case and it's a a west law sign i can provide that in just a second and says category the categorical approach requires a realistic posit excuse me probability not theoretical possibility that the state would apply its statute to conduct to conduct that falls outside the generic definition of a crime and that's quoting a united states supreme court case  or other cases in which state courts did apply the statute in the special manner for which he argues in this particular case there is no such authority in the state of nebraska there is no such authority in the state of  iowa and frankly we don't get past the the categorical pope approach we never get to the modified categorical approach and we never get to whether or not the statute is divisible or whether or not the statute is indivisible basically in this particular case defend language the nebraska statute doesn't include that language and the courts in iowa and nebraska have never so interpreted their their statutes their drug statutes to reach them in fact if you take a look at the iowa and the nebraska cases cited in the briefs they don't encompass conduct that that goes to a mere offer to sell they encompass conduct for example i think in the brown case they encompass conduct where the defendant stood there waved down two police officers gave hand signals indicating what amount of crack cocaine he had for sale or what amount of crack cocaine he could provide drove them over a road with them over to his supplier to obtain cocaine that is not a mere offer to sell that's actively engaging in the in the process in the case a and i can't recall the name but i think it's mckinney or mckinney out of nebraska in that particular case that defendant called her drug supplier to arrange him to come over for a methamphetamine sale so that he could sell methamphetamine to the third person and she did that in the hopes that she would also be provided with methamphetamine again not a mere offer to sale she actively participated in the drug transaction so the burden for the defendant in the burden the defendant can't meet is that there is no law in either nebraska or iowa that supports the idea that this drug statute can be accomplished by a mere offer to sell a further problem that the defendant faces or a further further burden potentially that he has is there is case law in other district that include another circus that includes offer to sell and i think your are you reference both of them the one from the first circuit and the one from the six circuit and in both of those cases there is express language i think in the connecticut statute and perhaps in the even though the language is in the statute they still require intent and that is required in the nebraska statute that's also required in the iowa statute and in fact the iowa conviction that the defendant has is a possession with intent to distribute so it actually has an active intent element so the problem again we don't get to the modified categorical approach in this particular case we don't have to look to whether or not the statute is divisible we don't have to look to whether or not the statute is invisible because frankly these statutes the i was statute and the basket statute closely mirror for b one point to the guideline definition of a controlled substance offense and that's simply where we're at here i don't believe that  defendant can sort of carry his burden in this particular case to convince this court or good be able to curious burden to convince this court that you should look to guidance out of the fifth circuit on a statute that has language that does not exist in the other two statutes and invalidate the prior convictions if however this court were so inclined and we did get to the question of whether or not this are these iowa statutes and the basket statutes would somehow sweep too broadly and would in compass potentially a mere offer to sell i believe you do get to to use the modified category work approach here because these statutes are in fact divisible and in nebraska that question is answered directly by i believe it's the state versus brown case which says that these are separate offenses and i think that in the context of the state versus brown case there was  a double jeopardy objection because the defendant was convicted of two crimes based on the same conduct and the supreme court supreme court said no there is no double double jeopardy problem here and in fact the district court who says he's convicted of distinct crimes they are the delivery and the i don't cough was deliberate possession with intent or delivery in manufacture those were distinct crimes so that statute would be visible the iowa statute is also visible and the court can look at the the charging documents here under the modified categorical approach because there are different ways to violate the statute the statute frankly accounts would have a strong argument if i were had a statute i believe it's one twenty four point four one if they have one twenty four point four one day which was manufactured and then one twenty four point four o not visible because it doesn't matter how it's delivered then it's a means not an element but instead i was statute is one twenty four for a one in the criminalize is the conduct of manufacture it criminalizes the conduct of distribution delivery  to be divisible because it carries different penalties for example possession with intent to distribute marijuana is a five year sentence possession with intent to distribute methamphetamine ten cocaine ten they carry different penalty so you would certainly want to see i guess a different element different penalties if you are the defendant and you're being charged with possession with intent to distribute marijuana so we don't get to whether the statute is divisible or not because categorically these are controlled substance offenses if we do get to that the statutes are in fact visible and the court can look at the charging documents and i would point out if i could some language i  believe that that came up and mr hanson argument too to your honor's could be was used akin to it's not much of a stretch to that shows sort of a heavy lift that shows that this court has to make this leap that these that this statute that's never been interpreted by iowa or nebraska will then somehow cover this mere offer to sell so if i could then simply like to address the second issue and i'll be brief i believe that this court is bound by the walker decision i don't believe this power can overturn that decision i understand counsel is preserving or asking to preserve the record potentially for on bop review i would simply point out that it is not in fact impossible to commit the offense as described if for example in this particular case victim of an audio was in possession of a handgun but never left his house he wouldn't get a four level increase because he wouldn't have violated the underlying statute so it's not a theoretical impossibility to violate the iowa statute at the same time that you have violated your honors with respect to the divisibility question i would direct the court to look at the i would jury instructions that are cited in the government's brief pages twenty four to twenty five and where as there may be some difference a defendant's convicted of a marijuana offense relative to a methamphetamine offense there is no difference and it's clear from looking at the jury instructions if a defendant is convicted of a mere offer to sell as a form of delivery or something more direct an actual transfer of a controlled substance that's why the precise means of delivery in both iowa nebraska is a means or a fact extraneous it's not an element and that's why the statute  indivisible with respect to delivery on the court's recent opinion in fletcher i've read it as well on the issue of nebraska terroristic threats and the distinction here is that the nebraska supreme court has spoken with some authority as to what a crime of violence is in the state of nebraska has actually enumerated offenses such as murder and armed robbery and kidnapping i believe to be crimes of violence under that statute and those to serve as a basis for terroristic threats here we don't have that limitation under your eye were nebraska law as to what delivery might mean and there's no limiting principle so for the read these reasons that i asked the court to reverse to district court and to remand for reasons that both sides