factual dispute between mr resi and the government it went to the heart of mr refuse objection that he was acting in self defense and therefore did not commit another felony together these two mistakes more than doubled mr wright s outset that this is a plain air question but i believe that if you look at the supreme court case law and this court case law on the categorical approach of this error is plain every single time that this court or the supreme court has gone through the categorical approach whether defining a term in a statute or defining a term in the guidelines there has been one on bendable rule which is that every term mu follows that rule but the proposal from the government does not and one of the other things that's very clear from all of the case all from the supreme court in this court is that if a party proposes a seemingly uniform definition that in fact depends on what the state has chosen to criminalize or how it's dave has chosen to label a crime that's unacceptable that is i think clearest from the case that was in the twenty eight day letter that i submitted this week s q l can find a versus sessions where the government proposed a very very similar definition to what it proposes in this case there for sexual abuse of a minor and the unanimous supreme court sad that said did you know what the government did it turns the categorical approach on its head by defining the generic federal offense of sexual abuse of a minor as whatever is the legal and or particular law of the state where the defendant was convicted they rejected that out of hand and that's exactly what the government has done here the government says oh it's a commonsense dictionary definition the problem is is that the dictionary that they chose refers back to which states that if we don't have a holding in this search in the presidential can we look at other circuits and if they're split and you'd have to acknowledge they're split on this  favor that that's probably going to be the result but there's a number of cases wolf maybe where the court has also said if there is a circuit split we could still get around that circuit split and here i story says a circuit split is not to dispositive on the question of whether an error is between ballots as this is so even when no authority for the supreme court or this circuit would has been hanging out at the doorway and i think that there are very good reasons to go through it in this case one it is that this is how the categorical approach has worked since i was in elementary school and the government in case after case has proposed definitions saying that's not how this would work let's try this that this court in the supreme court continues to reject but the other reason i think if you look at the published cases from this circus that have come out the other way you see where they went  stray and where they went to straight can't be fixed and is inconsistent with supreme court oneness law and that the law is this or that excuse me so one of the things that these cases have found most important is that the felony expunged trap of that substance distribute distribution of physical force crime of violence all of those terms have been given a single uniform federal definition it is not dependent on state law what the state has chosen to  why or how which state has chosen to leave all that of the other mistake that the circuits are making is that they are they're creating a false equivalency so they like this court h chasing counterfeit substance counterfeit is not a term of art here counterfeit just mean counterfeit the dictionary definition means faith those courts say well in that case then we must not be using the controlled substances act here and we must leave something else but the problem is the next step that the courts take which to say will therefore let's just go with whatever it is that the states say it controlled substance in whatever the states have actually decided to control in the word count of that and the word control are are just so different that this is a false equivalency she trolled simply can't mean anything outside of regulated by the state you beagle in the state something that is dependent i think finally the mistake that these courts make is that they they have these two proposals in front of them they spend most of their time rejecting the defendant's proposal but they don't really grapple with the government's and that is well then you can look at the laws of all the states if you don't think that controlled substance is a technical term and i do believe that it is and i get into that in a minute but even if you don't believe that that's a technical term it still needs to have a generic federal uniform definition and the way that this part of the supreme court looks for that again is not to see what a state has regulated but to see what all of the states have regulated and here over th amendment and the express purpose of that in the end was to clarify the definition of controlled substance that that there's nothing that says it's trying to change it it's trying to broaden it or anything like that it is trying to make it more clear but i also think there's a couple other important things about this amendment which is it never say controlled substance as defined in the controlled substances act that's what the a c c a sad it didn't say that and so it's not like the guidelines commission took that out some rather instead of using some offensive and saying and similar offenses it changed it to say ok well if a state or federal offense that involves and then it lists all of the different acts that are involved in those statutes i'm involved manufacture import export or distribution in a controlled substance or the possession of a controlled substance with intent to do one of those that to me so i don't think that that is the guidelines commission saying we're getting away from the definition of peaceful substance it's rather the guy going fishing saying you know we need to clarify this and just listing a bunch of statutes it's confusing we're going to list what that actions doesn't your argument lead to that because two people selling meth one of them a state that only includes federal controlled substances and the other in a state that includes federal controlled substances and then a couple other substances which for all we know have never been prosecuted so the person in this nd state where they have one hundred substances listed and they have another three that person is sentence differently because under the categor you consider anything that can be prosecuted under the statute so if the sentencing commission wanted to allow prosecutions under that state's law to be considered would not use the language it did prosecuted under state or federal law for controlled substances and that and that would lead to greater uniformity so that two people who sold meth would get the same sentence  in your honor i think that that would be a reason to get rid of the category approach entirely i don't think that that's what this is that this guideline would say if the intent here before should override the fact that there's a split in the circuits on this issue no your honor because the definition of crime of violence in this very same guy mine says any offense under federal or state law  here an offense under a federal or state law there any offense under federal or state law those are not distinguishable and the supreme court has made very very clear as is this court that we're not that that's not what that so this phrase that these courts have honed in on and that your honor is asking about those are everywhere but during all of the statutes that we always use the categorical approach to interpret and i understand the concern that your honor is raising but here the term controlled substance it doesn't derive from the federal legislation but that's really where it was st use was in the federal controlled substances act which was followed shortly by the state uniform controlled substances act that most states adopted including oklahoma that tracked the federal schedule is exactly what happens to be that oklahoma has changed and added over the years they've added and subtracted and they haven't followed the federal government w be done that and that creates the same problem as states that have burglary statutes that are not divisible between residential burglary and other burglaries and i see that i'm out   st the district court judge reviewed the p s r police reports nine hundred and eleven call body cam video of the victim interviewed at the incident audio recordings of an interview that  victim two days after the incident a sworn statement in the protective order and hearing the defendant's version of events through his counsel the district court then found that regardless of whether or not the victim was at some point the aggressor that there was a factual basis to show the defendant possessed the firearm in connection with a felony assault and battery with a dangerous weapon the judge correctly overruled the defendant's objections and applied the enhancement nd the reasoning and thomas and not cancer you should be used here because we're looking at a broader more inclusive language in the guidelines not the a c c a language that the sentencing commission clearly intended to apply to substances controlled under state law now i'd like to make a few points about some of the things some of the things opposing counsel talked about in her oral argument st with regard to the circuit split on the on the drug controlled substances offense reasons the press such an exception one obviously that there was a supreme court or th circuit precedent to that there is an ambiguous statutory command which was what was happened in the bomb case  or rd that there is a th circuit or supreme court authority on identical statutory language which is what happened in the solace case or th circuit decisions had actually themselves been abrogated which also happened in th solace case and none of those half are the case here and because that we think the circuit itself would indeed make this airplane another thing i want to address that council discussed was the versus session supreme court decision that she filed this week and if you look closely at that case they actually specifically the cline to define to disposal sale import the statutory definition into the statute they're looking and they do that in part because it was not specifically cross referenced and also doing so would needlessly exclude numerous state also with regards to uniformity which is connected to that the i want to point out the united states versus castleman decision in the supreme court and in there they found that one reason to reject the defendant's interpretation of force in the domestic violence context of eighteen u s c nine hundred and twenty two g nine was because the definition would have rendered that statute ineffectual and at least ten states that is another reason why here that many of the drug laws would actually be excluded would be a reason to reject the defendant's proposed proposal another point i'd like to make in defense counsel reply brief they rely on the case united states versus dell jawad which is a th circuit case and they say that that case defined the controlled substance offense as one from being specifically that well one it's important to know that in that case the court was actually looking at two  one point one and it's important because it's different to different guideline that we're looking at here but also they were looking at defining a controlled substance offense for a federal conviction  a prior conviction but actually the thing that the defendant was convicted of in federal court so obviously in that case the controlled substance would have to be federally regulated but also that court does something really important and i want to point this out circuit there recognized and i want to quote this and while the word controlled may have a plain and ordinary meaning whether a substance is controlled must of necessity be tethered to some state federal or local law and so this court has already recognized that the word control doesn't he have to be tethered to some law and that it could indeed be state and so even though in that case it was referring to it's other it's a federal law it was because it was specifically looking at what had to be a federal conviction another point i want to make with regards to some of the cases in the circuit split so when i point out both ward and ruth which are two of the most recent current recent decisions from circuits that decided it that agree with what we're proposing both of them relied on rd decisions and reasonings that they made in defining counterfeit cases they were at war relied on mills routes relied on and this is exactly what we are asking this court to do today and rely on the analysis that this court has already decided in thomas with regard to counterfeit second i'd like to point out that in ruth the circuit court there did not apply statutory enhancement for twenty one dollars u s c one looking at the same conduct specifically because it was overly broad for that statutory definition but they found in the alternative that the language of this particular guideline for be one for b one dollar did include the same conviction and rd with regards to counts and i think where townson went wrong civically its reliance over reliance on the drome presumption and the drone presumption says that we should not rely on state law but it says in the absence of a plain and the cation to the contrary and i can't imagine a more plain indication to the contrary than specifically using the language that we have here that it includes federal or state law another thing i'd like to point out is that in the defendant briefed in their reply brief in particular the defendant praises thomas because selling baking soda as masquerading as cocaine is distributing now counterfeit controlled substances the country over but if this court except the defendant's proposal distributing actual cocaine in oklahoma and numerous other states would not be a qualifying offense the country over if there are not any more specific questions on that issue i'd like to turn to the another felony  the in the other felony offense issue rule thirty two requires that the court rule on the dispute or determine that that is unnecessary because it doesn't affect thing or the court won't consider it in this case the judge did both he ruled on the objection he ruled on the dispute and said that there was a factual basis that the defendant committed  connection with a felony if him specifically assault battery with a dangerous weapon he also determined that the specific factual dispute whether or not who was the initial aggressor was it was unnecessary determine that because the facts support it even if at some point the victim had been initial aggressor and i want to expand a little bit on the ion case which we refer to in our brief united states versus i which is th circuit case in that case the similarly the defendant argued self defense and the court overruled the objection and applied the four point enhanced and the court in that case or the in the case said that a ruling on a disputed issues need not be exhaustively detailed but it must be definite and clear and that's the case here the judge did not get into a lengthy description of the factual basis count over the other and that's exactly what we have here and that court said and i'll quote here we need not engage in conjecture to turbin the district court's reasoning as presented the district court had to choose between minute i understand that we don't know what happened here because there is a conflict he says that she had the gun initially because it was under well your honor i think that in the oklahoma state court there are cases which we cited in our brief where the even if there is an initial aggressor self defense that once that threat is gone wrestling right and i don't think here that we're necessarily arguing that when the gun went off was the was the assault with the dangerous weapon but the assault and battery continued and the victim was the same victim there was a witness in the in the living room and actually if you listen to the nine hundred and eleven call which is in the record here the defendant that is after the gun has gone off and they it is five minutes long and the defendant gun that entire time you can hear it in the in the audio recording and he does not originally he actually said that he never touched her and that's what he said immediately and then this this this goes on but i think that the the evidence on the record shows that the assault  did not have to determine whether or not there was initial aggressor because from all the evidence that he saw that regardless of if there was an initial aggressor there was still an assault in the fire i was possessed in connection with that which could have