immigration case dealing with the categorical approach as outlined by the united states supreme court case and matters of united states in particular the means versus elements there's really only one issue in this case of the colorado possession statute eight hundred and forty three dollars does the statutory term a controlled substance is that an element of the offense such that the proof of a particular controlled substance a prosecution is simply a means to satisfy that we believe the answer is yes matters provides chords with an instruction to look to authoritative cases or excuse me authoritative source of state law to answer that question the statute the penalty range the statutory structure as did a definitive decision by state court clearly holding forth on the elements and other definitive sources of state law and only in situations where those sources don't definitively answer the question should a corpse speak to the underlying record of conviction but that peak itself is only meant to clarify whether in our the particular alternative is an and where there is confusion where there is not certainty mathis requires that the statue be found we think the stakes of the statue answers this question subsection one of the statute outlines the statutory elements of the substance of crime that prescribes as an element the term a controlled substance subsection to outlines two subsections that create different penalty provisions but is related to a schedule and in ariano a panel of the score unequivocally ruled we find that substance is not an element of this offense the court found that the plain language clearly spoke and demonstrated that and they point to an illustrated example that it doesn't matter what the underlying particular controlled substance is it could be cocaine it could be more filling as long as it's a controlled substance that meets a substantive element test under the statutes that speaks clearly statutory text as a practical matter isn't the prosecution always going to have to prove what derivatives i don't believe so your honor may have you are you aware of a case where the closing argument was it may be cocaine or it might be methamphetamine we don't know for sure but we know it's one of them you should convict the person and send them to jail i'm not aware of an an argument about that  however there are two records of conviction submitted in the record that relate to present are entered without articulating an underlying controlled substance one is for a use plea and one is for possession with intent to lease the courts in those cases accepted those pleas they found that it was sufficient to demonstrate that it was a schedule one or schedule two controlled substance i don't know and i'll give you an example maybe another example to demonstrate this that is a really good question but let's use the  he was required then if you had a conflict in evidence where levin people were persuaded beyond a reasonable doubt it was pethidine which is a specific controlled substance and one juror thought it was maybe pethidine b because the tests came back with an expert wasn't clear or maybe the testimony of the witnesses were demonstrating that there was confusion between which specific controlled substance the jury agrees it's a controlled substance but they would return a verdict of not guilty that's where this the government's argument breaks  this is where this drives back to the statutory clear text that was passed by the colorado legislature a controlled substance i think the illustration goes further so for a three point five governs possession jury models are instructions yes your honor the monitor instructions they directly mirror believe it's one hundred and eighty one dollars directly mirrors of the essential element is a controlled substance only after a jury makes that determination isn't concerned with the facts of the case and the jury instruction says cater to the facts of the case so the jury instruction could elect for example if i wanted to secure a conviction as a prosecutor and i wasn't sure if it was methamphetamine or in federal mean i collect and secure a conviction but under the government's interpretation the defense would be not guilty the nd explanation is because in that situation in the larger statutory framework as you move into apprentice sentencing modifiers there are certain situations where in iraq the tories after finding guilt in a substantive offense of a controlled substance will because all of these statutes were passed at the same time they're all past post print the and they all sort of harmonize with one another in the statutory structure so for example under eight hundred and forty five dollars the jury must st return a verdict is it a controlled substance if yes conviction if not no conviction that allows a jury to return a guilty verdict based on a certain level of information that is instruction factors such as drug type and quantity from the elements of the crime and you'll see that in the instructions the way that the law works in the statute so if you're found guilty of possession with intent to distribute a controlled substance you're guilty of one level of crime the next in a rocket or it only if you return a guilty verdict on the control in a controlled substances doesn't mean a quantity but it's only a quantity of a schedule one or two controlled could show that something is an element if this is a good enough we really wouldn't we have to go as far as you're saying that just prior agreement can never ever showed up an alternate is in fact you know i would agree i don't think the rule of an agreement in any ways instructed to the court as an authoritative source of state law or to clarify an authoritative source of state law we have the statute and the rule levin here would directly contradict both the statute and at least six to seven different jury instructions promulgated by the colorado supreme court but that would make us you know we're not al to contest that they've admitted the essential elements of the crime they're subject to the same sentencing penalties based on the statute itself there's no reason no incentive no motive no legal justification it's a battle that i think the and heman has also explained that to that charging documents allege that elements that are essential and oftentimes enough facts are extremist facts that are required for a conviction and i think that is where the tension would lie and also even the peak would would would create a major tension between the the model jury instructions which are an authoritative source in the statute and at the very least that wouldn't satisfy matheson's demands for certainty i mean your old  position though is that you never you never take a peek because unless you can't decide on the other factors the beat does you know you never reach the peak that would be our position would be that arianna did accurately decide this case but looking to the plain language of the statue the statute means what it says and that as a result of a controlled substance is the element and whatever is used to prove that is the means to prove that element and that would fit directly in line with a decision it would align the statute with both that essential statutory elements articulated by the legislature and the apprentice sentencing aggravators that that arianna recognized simply related to schedule may reserve the rest of my i want to start with a question about the peak oil it's fresh on my mind because i'll probably forget otherwise so assume that we disagree with you and we agree with your opponent on the is yes we still would get to the documents your honor because as the strongest indication of divisibility here is the government's twenty a j letter inverses of people decided by the colorado supreme court in two thousand and nineteen there the defendant was found in possession of methamphetamine mixed with trace amounts of oxy and heroin and colorado convicted him of possessing three different  for each of those controlled substances and divisibility a statute is divisible if the alternatives describe different crimes not alternative means of committing a single crime so melton versus substances that would fall into this room or a schedule one or schedule to and i'm not aware of any and it would be inconsistent with nelson to find such a case like your honor i recall that in that what i'm asking you is wh and heroin which is a schedule one drug is charged separately on all three possession accounts is convicted for all three and a sentence separately for all three possessions so that is as clear as indication as any that colorado triest particular substance as an element rather than a means of committing a single type of crime and this is entirely consistent with the colorado supreme court's decision in a butin versus people versus a putin this hour in two thousand and five there the  said that those acts and manufacturing and the distribution and the selling that describe successive stages of a single crime and so that's consistent with those acts being means however in the course of so saying the colorado supr understanding that the substance is an element rather than a means and the statute is not contrary to that either you're right there's not speak plainly as to the means or elements if anything the fact that the statute criminal controlled substance is entirely consistent with how milton's turned out where somebody is in possession of three separate controlled substances and is convicted and sentenced separately on each of those substances and so that's distinguishable i mean there nuance here though and that is the case where you have a substance that is not a mixture it's a single substance but presumably the government doesn't prove exactly what it is it proves that it's one thing or another both a controlled substance but it doesn't prove exactly what it is that's a fair point your honor and again the government is not saying that melton is dispositive but it is a clear example of when somebody ha mixture of a substance and only trace amounts of other substances in the same schedule that is separated apart and the defendant is convicted of all three possession offenses and again the smoking gun here are the conviction documents because conviction documents at a are two hundred and forty four st define what an element is is as an element is something the prosecutor has to prove beyond a reasonable doubt so there is no dispute as to what element means in the plea agreement ok let me st person so let let's say that a prosecutor goes to trial and it's able to prove going back to my hypothetical that the drug is either cocaine or methamphetamine but for whatever reason they can't tell which do you have a conviction no your honor because it is an element they are separate ok and that is exactly why in milton they were charged separately drug it was that he knew that it was a drug and the colorado court of appeal said well there was no need to prove to what what drug it was well if the applied to every element of the offense including the actress radius of possessing a controlled substance then how does your d interpretation of mel reckon sorrow with the reality of people i understand your honor but the colorado supreme court look to federal law as an example or an analogue of how prosecutions occur and as your honour's are aware on the federal law there is not a requirement of a particular knowledge as to the substance substance is an element of the crime there are separate offenses and so that's entirely consistent with pera and it's consistent with the government's position and understanding based on the clear example given in nelson vs people by the colorado supreme court and i'd like to here as well that melton was not available at the time arianna was decided and ariano certainly could have been decided differently had this clear example been at hand at the time and returning to the conviction documents so dark that document the proposed jury instructions to ascertain whether something something as an element it's not entirely clear i believe the supreme court said the indictment and it your instructions that is jury instructions were actually submitted yeah it not only do we have convincing conviction documents but we have a clear example from the colorado supreme court so this is not a case where the state law is so uncertain and we can only rely on the peak documents we have very strong documents and we also have state law providing a clear example supporting the government's position that under colorado law the particular substance is treated as an element and not a means of committing a single crime and that's the government's position iran and that position is consistent with the statutory text and it also is consistent with the overall scheme of colorado's drug laws which places importance on the identity of the substance in affecting how the prosecution prosecute how the defense defen and how sentences happen so considering all of that together there certainty here your honor and recall that the supreme court of said between the state law and the conviction documents should be the exception and not the rule that the court should remain colorado's drug laws it doesn't look particularly it doesn't look at all as well that i mean that that's impeaching the analysis of it and i guess my question is different so if this was a published case where would you be i very publish case where would you be well under the united states versus to which this court issued in two thousand and seventeen this court has said that analysis must be essential to the holding in order for it to bind a future pa know the analysis was not because what it concluded was at a higher abstract level it said the schedules are divisible so there was no necessity to say that the particular substances were divisible ok so you got addicted of the same schedule drug being prosecuted separately convicted separately and sentenced separately ok but if i remember your argument about melton it was that it's not the spa's of but there those more helpful it is thank you not in the people speaks nothing about elements the board the immigration judge and the board of immigration appeals correctly concluded there is no  post matters that clarifies that question counsel concedes in his argument as written argument as as he should that this and state case law doesn't speak clearly on that issue knowing the people doesn't raise an elemental challenge at the trial court appellate or supreme court level it's a it's a which will criminal sentencing case related to proportionality were used was never presented to the court it's not relevant it's not dispositive and certainly doesn't clarify with certainty so the case law that the government presents is not relevant what we have here i think the argument the government makes is to to rush to the rule or to rush to the record to try to convince this court that somehow the text of the statute doesn't say exactly what it means and that the is don't say exactly what they mean and the statutory framework doesn't say exactly what it means but it does we do have in the record as it relates to this question about rule leavens an example rule that then i believe it's page ninety one in the record and that contains a different set of elements than the elemental that mr johnson did and it's in a different jurisdiction and in that one it says the essential element is a schedule two controlled substance that's important because if we're looking at the record of convention that's a clear basic elemental purposes and if they're defective there's a problem but if it includes extra information or they have errors that aren't specifically related to the elements that isn't a problem that's a situation in this case at the at the at the record of conviction the record of conviction clearly conflicts and contradicts the statute the jury instructions the model jury structures by the collar supreme court i think at the end of the day it's interesting because the argument advanced by the prosecution essentially boils down to a great defense argument if the specific controlled substance doesn't fit you must acquit and that doesn't make sense from the perspective of the statute the jury instructions and the th circuit are explained as best when it said if federal courts interpret state law incorrectly by finding that state laws include the central elements that state courts have not treated as such we could mistakenly doubt on the much higher volume of state criminal prosecutions under those state statutes matheson's demands for certainty are not met here the statute speaks clearly the statu