thank you your honor good morning made it please the court my name is nancy swartz and i represent the appellant's darryl holiday mr holiday is currently serving one hundred and twenty month sentence for the distribution of a total amount of less than one is overbroad when compared to the relevant federal comparison our boate and its definition of cocaine as well as the conduct found to violate the statute i want to begin by briefly addressing the government's notice a supplemental of forty followed by a effect own the data federal sentencing control for purposes of comparison to the state statute which was directly contrary to the district court's ruling in polities case this makes a difference because the substance i use blue paint was excluded in the current federal substantial step toward committing the crime of attempted deliberate intent to deliver a counter the crime under the commentary to the guidelines so that under oregon law solicitation of delivery of drugs challenges a crime because of its relationship to it and to warning please the court i name is karl a painter i'm here on behalf of united states district of montana and i would st like to begin by discussing the only issue of defense counsel raised before the district court in this case and that was whether or not the regulations was codified and the c f r controlled for the purposes of the category categorical analysis approach and here the district court determined that they did because the code of federal regulations reflect the updated re published versions of the most up to date schedules and that is supported by the very language of twenty one u s c twelve which stated that those initial scheduled substances were in effect unless and until as controlled substances now there is no question about congress's authority to delegate that decision making to the attorney general that was decided by the united states supreme court and to be back in one thousand nine hundred and one in that case the court time and the version is the most recent version and that's actually the only thing that teesta clarified for us part of this case but he still said that we apply the law in effect at the time of sentencing so in this case we would look to the most recent code  and reviews that decision it was based on a specific definition of marijuana and a specific definition of hemp as those terms were noted in the actual definition section not the record the that was not an argument that holiday ever advance neither and before the district court in a sentencing memo in a response to the united states sentencing memo or in its opening brief and it's important for this court to note the opening  filed four months before holiday filed his opening brief so this is a clear issue a waiver we did not address i have flu pain in our response because we relied not only on the defense not raising it but the defense essentially explaining it doesn't apply if you go back to the defense's opening brief that page seventeen she says quote the relevant portions of the regulatory definition has not changed you see no advancement of i assume pain at all in her response br so we made no efforts to address it or distinguish it and again this is before we had the cheese i can't stress enough that the chief is not controlling for the court's purposes today the most analogous case is vega ortiz and again that's the context of the state's statute what it did say is that silence as to an exclusion at the state level does not necessarily mean that it's overbroad and again noted the realistic probability standard something that defense counsel defendant has never advocated in this case we've seen no explanation of a specific instance has been prosecuted the defendant or anyone else for the possession of a food paint moreover we can't make that definition that distinction as to  overbred based on the regulations themselves because as we've noted in our our brief there is no definition and we have cocaine leaves and i'm sorry coca leaves and cocaine is included as a subsection of coca leaves we do not have a broad definition of cocaine as we did in battiste with marijuana where it was specifically defined in the definition just want to touch briefly on defense counsel's argument as to offers to sell judge by as you're exactly correct the district court was bound by and you recognize that in your concurrence and sorenson and it's also important for this court to know that this isn't just an error this is a plain error analysis so in order to agree with holiday you would have to come to the conclusion that not only was the district court wrong and deciding or not to respond say discussing offers to sell it was wrong for not explicitly disregarding binding precedent so in conclusion the government believes there's there's three ways that this court can decide this case and they are in ascending order of complexity the st is to rule that the regulations listed scheduled substances already the code of federal relations your honor if if it did that was only to include specific subsections of coca leaves again when we talk about describing cocaine we have to be very particular about the language that we use because we don't have a definition of cocaine and any sense in which congress has addressed cocaine and has specifically identified it as a subject we don't have that definition moreover we weren't afforded the opportunity to discuss how cocaine relates to i flew pain because defense counsel did not make that argument until her reply brief therefore we were left to the twenty letter and in the few minutes i have for th controlling case and dispositive case for this situation where we have a specific regulation noted in the c f r so this court can decide to take up the issue of iowa flu pain and decided based on the rd and final way for this court to so that we can develop that factual record in those legal arguments to explain why this case is not the teesta and why this court cannot say that cocaine at the state level is overbroad under the federal regulation nuclear if there if there was it was it was not a part of the record you have what was presented to the district court we would we would know that holiday has never contested that his conviction was for anything but cocaine the like i disagree with the government that congress didn't mend the statute after the regulation and i put that history in my st brief also i would also disagree with the government that the court use the current regulations i think on the last page of her decision before the sentencing hearing she clearly indicates that she was using the regulations that were in place before i who was was excluded she's using the regulations that were in place at the time of holidays