please the court caroline platt on behalf of timothy ward i don't usually do this but having two arguments in a row in a similar topic i'd like to just say you know the three is sort of broader point i'd like to make and then i'd like to address a point from the last argument if i may mr word that the language the phrase specific phrase controlled substance in section four b one point two of the guidelines his argument is that this court should agree with the nd circuit in towns and that that refers to the federal controlled cocaine as opposed to schedule one or two and thirdly in this case even if the court is inclined to find the statute divisible by a specific type of trial by which i mean heroin the government in this case did not meet it  it doesn't say not that either right i'm right of sierra as you know says that man's or it's not they don't have to prove mens rea as heroin or cocaine specifically and when used the word type because i don't want to get into the repetitive argument with  it's not being followed broadly at my understanding is that different offices do it differently and lots of indictments in the substance and lots of them do i think different offices have different practices so our argument is that it cannot be that it has to be that the indictments have the name in them because there are many indictments that don't and so to us that is evidence to say it's the government's burden to show that statute is is that a prior it makes the enhancement happen but we have provided evidence that this is not an element that the fact that something is heroin or cocaine is not an element of the offense in virginia and therefore the statute is not divisible and also i will say that the virginia model jury instructions that i believe were referenced in the sierra but also that we referenced in our brief i believe it's model jury instruction in virginia and it's not mandated by the supreme court statute one of the options under the brackets is you can say heroin or cocaine but you can also just say a controlled substance when you're instructing the jury in virginia which i submit is further proof along with the indictment that the jury does not need to find the identity of specific chemical substance being to it heroin or methamphetamine all of this goes to show again that to the extent that the statute is divisible under subsection c it's divisible to schedule one or two just controlled substance but not down to the heroin or meth level of etc as to this case to us to mr word mr word in this case distributed one th of one gram of cocaine and instead of being charged in virginia state court indictment of his priors his virginia state partners that we're discussing and so here even if this court is inclined find a visibility in the way that we submit is not the legal interpretation we favor in this case the government has not met its burden e categorical approach applies and that this case is like the last case can we take the step back to step mills seems to instruct us and we were bound by it you can ask later to section forty one point two of the guidelines with respect to the meaning of controlled substance of facts that is exactly our question in this case says you apply the categorical approach when you are charming what is a controlled substance offense for purposes of four b one point two have got lines so emotional so yes however you define controlled substance you can counterfeit the same way whatever approach you i don't understand how they would be different from a logical perspective i agree t section of the guidelines with regard to counterfeit versus controlled mills answered the counterfeit question very clearly i'm not asking you to overturn it nor will i ask the quiescent for the rationale equally applicable so when you look at that if i could just one  second look at the language of mills where the court says at page two hundred and twenty four dollars the sentencing commission by specifying federal and state violations service a predicate offense for career offender status clearly intended for repeat offenders of both state and federal counterfeit crimes to be subject to an enhanced sentence why isn't that the case here in other words if you are just worried about your s definition of controlled substance offense wanted to include every substance controlled by a state law as opposed to because it does say controlled substance offense under federal or state law  they wanted to include every substance controlled under every state so what judge richardson was told by a counsel in september i'm not going to say i'm in charge that's that virginia controls fifty two dollars substances that the federal government is not i don't want to kind of but yeah but aren't we talking about the definition of consoled substance of bents and it's seems to me that that's where the case this case reaches the fork in the road because the nd circuit's analysis talks about what's a controlled substance but the doc guidelines definition is of controlled substance of events and if it is controlled substance offense why isn't state law which is referred to in the guidelines defined why does it matter what's in the federal so heroes and so the definition you're talking about refers to state law only as to the offense and not as to the substance there is no definition of controlled substance at all in the guidelines so the courts have to provide one and that's where you get to the question townsend answered which is ok what is a controlled substance mean we have no definition in the guideline substance is matter controlled it just means controlled by law but as in john as you answer though it says an offen said the controlled substance it doesn't say controlled by who so for example if you're just going on a plain language definition which is what our far and also my calling in government are used for alcohol is exceptions controlled by law to acro you know we're in richmond there's about somebody and the federal controlled substances act is the best definition of that because otherwise plain language doesn't mean anything there is no singing defined in for being one to be the definition is of the  of controlled substance of correct but without can provide a definition of what is a controlled substance it could be what is to say it is disallows alcohol and tobacco from that there is no definition whatsoever of controlled substance so a matter that is controlled by law could be anything in the absence of a definition which is why going under for example taylor or of all santana going to the federal controlled substances act and looking to federal law for the meaning of controlled substance is the best answer because it's clear and it's provided and it's consistent everywhere this is consistent going back now twenty nine years because again controlled substance apart from being the modifier of offense and control something offense has has no provided meaning there's no definition of controlled substance and black's law dictionary doesn't help it just says controlled by law but what we're asking this court is pick which law is it fifty one jurisdictions schedules or is it the federal controlled substances act in this country is there under that's the question controlled by whom that doesn't have an answer in the guidelines and so the government's trying to move under state law from the offense definition to a definition and it doesn't exist they're the ones who are trying to move language around and add words which is the thesis of their brief but there is no definition to add it to so we're saying that the federal controlled substance read which doesn't cite tamils or having a discussion about nelson it deals with a different part of for be one to mil's deals with counterfeit it deals with whether an attempt is included or not is not inter being controlled substance is what i'm saying like different part of it does but right ok then and i've sort of look at those two and i say will doesn't side it seems inconsistent with mills and then just beer  xcept this is the hypothetical and so that i believe mills is the prior case binds us over did do you have an argument under that hypothetical or would that hypothetical sort of would be a full hypothetical and the hypothetical st assume i disagree with that assume i think mills gover ok right in defining what's a controlled substance offense do you have an argument to provide a whole accepting that is the hypothetical i think counterfeit substance and controlled substance are different enough because counterfeit is a word that has a meaning it means fake and that has a plain meaning so under pharo or any of the plain meaning cases even using a categorical approach as a father did you can go to the plain meaning of a word like counterfeit and right not because the confederate definition controlled and so i can't i'm still having trouble seeing why controlled substance and counterfeit substance are different counterfeit is only has meaning by virtue of law all right i mean fake substance fake is counterfeit and fake are words that have meaning without regard to law i mean if you watch it as independent meaning that counterfeit to me is a legal term that you're converting to fake which is rough equivalence but you can do the same thing with controlled right so i think this is this is very very close i'm going to think if you if you if you're talking about handbags and you and you walked up to somebody and said you know this is a counterfeit gucci bag you can look up the word counterfeit or whatever and you can you can translate counterfeit into fake where is our purses controlled substance controlled substance doesn't mean anything except controlled by law to me doesn't mean illegal not controlled subs are illegal a lot alcohol is not illegal but it's controlled it's the government decides who can and cannot have it so it's not illegal for me because i'm of the age of twenty one it is illegal for my toddler niece right so controlled is only relevant by virtue of its legal meaning whereas counterfeit is a word that has a plain meaning independent of the law and so that's why  either i agree that those are so different that mills doesn't apply because of the nature of the work counterfeit versus control or mills does control and then court i don't think that you could describe mills as having a current circuit split towns and if you follow mills down the road to this case then you will be creating a circus but the towns and well but but if we don't i think there are three overarching questions here the st being in applying the career offender guideline here do you have to match the federal and state drug schedules the nd is assuming that you did is the virgin your drug schedule or drug offenses divisible by drug type and then the rd would be did we introduce evidence that would establish that this is a fence was heroin offense if the drugs offenses under s a heroin offense and so i think that answers that question the st question is do you have to do the matching drug schedules between federal and state law and eight or two of title twenty one courts of looked at that language and said that language directs the court to the federal definition of a controlled substance and that in those scenarios is putting you in the world of having to compare drug schedules that language is absent from the career offender guideline and when this court and mills looked at the definition of counterfeit substance this court said we're not going to go to a two dollars to seven dollars which has the federal definition of counterfeit substance we're not going to use them for that and we've got a lot of guidelines as refer to it and we're not incorporating into the guidelines do lots of cross referencing they didn't do it here the defendant says essentially well when the guidelines refer to a proof under guideline controlled substance immediately before counterfeit substance now you do go to a two dollars to seven dollars which is the federal definition of a controlled substance and apply that even though the next word set of words can counterfeit substance you didn't go to a two to six and that just doesn't make any sense  defendant we if we follow that decision point just said that in the past we go in essence is right back to your st point which is we didn't we're still looking at the same information you put in  to determine whether you met your burden to establish the the plain meaning of what a controlled substance offense it is but the framework is slightly different although you would say probably in this case immaterial whether it is could whether mills controls or whether the modify categorical control right i mean if this i think i'm following your question mark well a very good schedules i think the defendant's lead argument is townsend and townsend in turn is applying the what they refer to as the drone presumption and so that i think is their lead argument here federal act depend on state law it's really bizarre to apply that to a statute that or here a guideline by its terms is covering state offenses and you know crimes if you were to apply a drone presumption to those you would say we're going to use a federal definition of burglary not the generic one supreme court created we're going to apply a generic definition or we're going to apply the federal definition of arson we're going to apply the federal definition of extortion that's just not done and instead we've got a set of generic offenses let's consider what would happen if courts were to say that really what the guideline here for one point two is doing is not a use enforce the federal standard it's not the plain meaning standard that mills used for counterfeit substance instead it's you courts create generic drug trafficking offenses and what you would be doing that is going out and surveying fifty states drug schedules figuring out what the consensus drug schedule is constructing it and then trying to match the state's drug schedule to this current federally created generic drug schedule that makes no sense it would be really burdensome it would produce all kinds of inconsistences if that were what the commission wanted to do they have the institutional competence to create some kind of a schedule that is their uniform schedule but they did find a defined by title as as defined in section eight or two of title twenty one that language is a president and the career offender guideline and that's a meaningful difference in mills the score when it looked at the adjacent term counterfeit substance said we're not going to the federal standard here we're just going to use the dictionary definition and the very same reasoning should lead you to the same conclusion here that you're just going to use a simple meals look is yeah you have to have a standard for it and and there is and it is based on federal law because mills cited circuit court cases in those cases they follow the federal definition of the crime  no i don't think so your honor so right mills said when we've got to define counterfeit substance there is a standard federal law that tells us what federal what kind of food substances under federal law that definition is found cross reference that provision which you see the current cross reference for a controlled substance and these other statutes like our per criminal act the immigration law but it's just not present in the career guideline and so they use the dictionary definition which was as it turns out much easier to apply and there is a black's law dictionary definition of controlled substance which is any type of drug distribute their own we know that that is regulated is because rare you know but categorically which you know there yeah because that's just a matter of applying language and legal definitions so it's not a nine categor approach in the sense that the category know that if you apply the categorical approach i would you know with big guy well so you ask yourself is it does this involve a conviction for any type of drug whose possession the whole landscape of the law it did not and i don't think that i think mill supports us and there is no tension with applying the categorical approach between with mils because it's maybe a step that application of the categorical approach isn't going to tell you important in a threshold for the value of the thing stolen it doesn't tell you how broader narrow the particular standard is it just says apply that standard categorically looking at a universe of of materials that doesn't require you to engage in a lot of fact finding that isn't you know found and you can do that with a simple definition it doesn't have to be a complicated definition that spells out a whole enumerated list of scheduled drugs and i'm confused about your position  the state drug schedule with the federal drug schedule if it's broader than ask yourself whether the federal schedule is divisible and then if it is divisible look and see whether this defendant committed a divisible offense that different i mean i think our view is that the plain meaning is the best interpretation of this this guideline and that it's analogous to what the th what this court did and mils but if you reject that we still win under  visibility so if you think you have to do to the visibility analysis the virginia law is divisible and we introduce the sufficient evidence records to show that this was a heroin offense and clearly heroin i covered by the federal drug schedules so we do win under that approach but in terms of interpret in this guideline under this court's precedent the better interpretation of the guideline is that you don't do matching of the federal and the state drug schedules that's the you don't have to go down that road but if the court says no we do have to go down that road then the government still that under either version you just laid out it's a categorical or modified categorical inquiry the only question is what's the standard under the mil's approach the standard it's only a question of what we're applying it against because categorical doesn't except for some definition we've got to get a definition from somewhere you're saying your colleague is suggesting that it needs to if the court doesn't have any further questions i'm happy to see the rest of my time but i don't want to fail to address a question o government in this case did not provide the indictment and i believe it was the plea there was no jury instructions as to my client and i did not start i mean you got a little quick on me so i apologize i read shepherd this morning it is not clear to me that the judgment order is a shepherd document undershirt if you look at page two thousand five hundred and twenty six of the shepherd decision the documents that are listed as shopper documents are charging documents indictments and jury instructions and findings of fact made by a judge i'm not sure that the as well and mathis has the same list and judgment and sentencing orders which is what they provided are not among the documents listed in choppered or mathis so i do not concede that they have met their shepherd burden even not just as to proving the s controlled substance it's defined by law that does not answer which law and under any other there is no plain language other than defined by law and that just gets us back to choosing state or federal law which brings us back to begging the question of police you know under taylor you don't default