the next case today is united states versus raymond rodriguez rivera appeal number one point one five mister lerma whenever you're ready good morning you're on is again i'm kevin learning on behalf of riemann rodriguez rivera  a previous conviction of section eight hundred and forty six which punishes agreement only conspiracy to commit a controlled substance offense this appeal asked the court to hold that section eight hundred and forty six is categorically not a controlled substance offen under the guidelines in order to reach that holding the court faces three questions st does the categorical approach apply to conspiracy offenses as listed in application no one second is section eight hundred and forty six categor overbroad when compared to conspiracy generic contemporary definition and rd is this court freedom reached the issue on the merits the answer to those questions are yes yes and yes st the  categorical approach applies to section four b one point two and its application of that text and commentary of section four b one point to support application of the categorical approach to conspiracy convictions the plain language of application not one lis a generic offense of conspiracy no prohibition in the guideline reflects any intent to create a dichotomy between state and federal convictions when they're being assessed regarding conspiracy conviction and when the guidelines simply name a type of offense without specifically defining your nomenclature alone does not control this court must look to the elements of the specific offense to determine what the generic offenses and what the predicate conviction before the court is could i it is a question that's personally i don't see what the categorical approach has to do with this at all it seems we're a step before the categorical approach which is we have this application note that defines a controlled substance offense as conspiring to commit certain other offenses so we have an interpretation issue just as the court did in taylor here we have been tailor was what did burglary mean here we have to ask what does conspiring mean in that application no and the categorical approach doesn't help us that's what we use once we define decide on the definition so it would be most helpful to me to understand why you say we should really conspiring in application no one has we advocate for reading conspiracy as an offense in the same way any offense is assessed under the categorical approach and that is the reading that's compelled by the statutory interpretation of the application know the actual language of the application note defense refers to offenses of aiding and abetting offenses of conspiring in offenses of attempt this court has already applied to categor trunk which is referenced in our briefing and there's every reason to apply the same analysis to another in code offense which is listed side by side attempts you understand that to apply to apply the categorical approach you st have to define the elements of the crime yes only then can you define can you apply the categorical approach and so my question is does conspiring is one of its elements an affirmative act or not because if it is then you win if it isn't you lose and there are two definitions of conspiring out there there's the one that requires an affirmative act there's the one that doesn't why should we pick the one that does that's what would be most helpful  to know and that's what seems the circuits are split on the arm the circuit split as i understand it has to do with whether to apply whether to even reach the point of assessing what the generic contemporary definition is there in this case there's not a dispute as to what as to whether section eight hundred and forty six dollars meets the generic definition require an overt act overt act conspiracy is the generic definition and there's also not a dispute here as to whether section eight hundred and forty six dollars requires an overt act it doesn't require one to help me like this  conspiracy statute i i don't have any statistics to cite but i i think that that's most likely the case that one in five decisions that we are does it's doesn't seem odd that the sentencing commission would then write an application no in the context of the federal sentencing guidelines that would cover a conspiracy but in exclude essentially one hundred percent of the conspiracy and drug offenses it would seem odd if the application no wasn't already applying to so broad a range of statutes it conspiracy conspiring modifies not just state offenses but federal offenses and not just controlled substance offenses but also crimes of violence so in that in that scope federal jurisdiction is just one of the jurisdictions of prior convictions that is in compassed so there even though the of the federal offense shares the same name you know it as as the generic text of the application no it isn't even though it might it might seem odd it does not that still oddness would not demonstrate the intent to include deep this federal conspiracy statute it didn't in taylor didn't it wasn't that the way the court went it rejected the common law test as to narrow it to constraining that would preclude the use of too many convictions  took the fuehrer element there for a broader application prevailing state test here you want to sort of flip that you want to take the state prevailing state test which has more elements and therefore a narrower application than the prevailing federal statutory tests so it seems you may have flipped tailor on its head it not exactly in tailor there was a wide range of legislative history regarding changes that hadn't occurred in the arm career criminal act where definition of burglary had been removed and the  that court did reject the common law definition of burglary because of the indication from the legislative history here we're not involving any common law definition and there's just simply far less legislative history from which the court could infer intent and in addition to that the commission could have at some point and congress could have easily stressed or applied a definition that would have income pissed on non overt act conspiracy at what point do you begin this time period where you say the commission could have addressed this when when the court decision started coming out in two thousand and sixteen or prior to that do you have a view of a time in mind there i have two main times in mind one that slightly beyond the scope of this case where courts questioned in the in the ninety's whether application no one over extended the authority of the commission or was in conflict with the guideline text itself at that time that the commission could have clarified that just as the commission lists specific references to the u s code in the commentary to the guideline i think it became clearer after camping and mathis that there were interpretation issues with the guideline and that's why there's a constellation of cases from around tw to current day that are applying the categorical approach more specifically to the offenses listed in the application no thank you does the court have additional questions  approach in whitley that stated a forty six conviction was not a controlled substance offense and mister rodriguez has waived any argument by not confronting the law the circuit doctor in his opening brief not how this court applied application one to determine whether a conspiracy conviction for a controlled substance offense pursuant to the law to the guidelines qualified and what the court did in hyper it says what we need to look is the critical determinant echoing feel what it is a conspiracy to do what so the critical determinate is what is the controlled substance offense and then looking at the plain language of application don't want which this court recently held is binding precedent if it's a conspiracy to do a controlled substance offense then that conspiracy conviction qualifies as the controlled substance sense and to answer your question your honor also the way that this court explain what happened in piper and lewis on page twenty two was the following we held that a conviction for conspiracy to possess with the intent to distribute over one hundred kilograms of marijuana c serve as a triggering offense for the fear career offender purposes so long as the crime of violence or controlled substance of plants was the object of the conspiracy using that same test here we have a myster how do you define conspiracy conspiring correct it was not but it was so why you barking up the stream always trying to give you many signals that we don't consider the circuit authority to invent fully resolved on this and we're very interested in hearing the merits yes you are in the the only reason that the government is barking up the street it's not doing it and it turned into be disrespectful but because it is the government's belief that the law of the circuit doctors here does apply because although although paper did not discuss whether a generic conspiracy has an extra overt act element it was something that was discussed in c r if we look at footnote four and the court found that argument that the rhode island general conspiracy that it did not have an over element to be unconvincing and it said that that exception would swallow the rule as for now if we were to move on to that if we were to move on to the merits of the argument can substance offense they will look at the plain text of the guidelines to show that the sentencing commission intended for conspiracies for conspiracy to modify either a controlled substance offense or a crime of says a conviction for a conspiracy is a controlled substance offense itself when the object of the conspiracy is a controlled substance of paths so the klein meaning of the text and related commentary and that also meshes with what congress was trying to do when we look at eight hundred and forty six dollars forty one cents they both have the same penalties there is no difference so at least in congress's mind they should not be separate and we and it's not to say that the commission when promulgating application not one was trying to make that difference as the sport explained in piper that the purpose of the application one is to help us interpret into clarified what and how they should be applied here it says conspiracies for a controlled substance offense are a controlled substance offense it's not mandating an extra method of analysis where you have to compare to the generic and that's recently the  circuit in tap found found in favor of the government again holding that the plain text of the guideline here controls and you don't need to go outside the four corners of the page this is also consistent  a little different with what this court has said in mckenny when when explaining whether conspiracy is for are up in the aca context a serious drug offense it didn't require analysis to the generic whether there an overt act or not so it's the government's contention that if we want to look at the service even assuming there is no law of the circuit here our past precedent shows that we look at the four corners of the guidelines and met the guidelines provide the answer you don't need to go outside the guidelines but the government sincerely does believe that because piper took feo it is the method of analysis which rejected the need of a generic comparison but it is close your honesty the interpretation advanced by the government and adopted by on the circuits mentioned we respectfully contend is mistaken in fact to reach that interpretation the court does have to look beyond the four corners of the guideline and the application note and as the th circuit and the th circuit have put it those holdings to the contrary all divined the intent of the sentencing commission without offering any as the court noted in piper if the predicate offenses would change based on jurisdictions it would produce a crazy quilt of punishment results in terms of reaching th issue i would briefly point out that courts often decide particular legal issues while assuming without deciding the validity of antecedent produced propositions and such assumptions aren't binding on future cases we would agree that the thank you thank you of thank you that argument in this case attorney learmonth and you may disconnect from hearing at this time