good morning good morning may it please the court kevin ritz of the united states this case like so many others requires this court to interpret and apply a definitional provision in a criminal sentencing and hence meant the good news is that the statutory text in this case is very broad and provides a clear roadmap to the right answer the question is whether the promotion of the method of manufacture of methamphetamine involves the manufacture of methamphetamine it does in the district court got this wrong this court should reverse the course should of course start with the statutory text and the key word that everybody agrees upon here is involving that is about as expansive and broad of the word as you will see in the sentencing an months the case law uniformly has interpreted that word in a very broad and expansive manner the test that we have set forth as to what that means is that the conviction should relate to or connect with  manufacture of a controlled substance here methamphetamine mr eason suggests this court should add the word closely we think that's unnecessary to give effect to what congress meant here either way we should win and either we would win under even the relate closely test this is a different conviction was for purchasing acquiring are delivering an item that can be used to produce methamphetamine not not the actual drug it's so so the s c c a says a controlled substance you could have an item used to produce methamphetamine that's not a controlled substance no absolutely your honor and that's what i think could have water for instance water i don't think that's reflected in the case law but coleman fuel ammonia lithium strips i mean though that i'm sorry sudafed the one that everybody or and i think that gets to what was going on when the legislature in this state and many other states passed these laws about fifteen years ago they met that methamphetamine manufacturer is a little different from other drugs that can be done by anyone in this room purchasing legally purchased will ingredients in what the legislature's were trying to do is to target the first step of that manufacturing process which is amassing these ingredients and the the promotion or initiation which is also a crime in the state of tennessee and certainly the manufacturer itself qualifies as involving manufacture and and stuck to supplying a product to i mean is that is i think in terms of when you make a product to you you're using the ingredients to make the product typically that whoever makes the ingredient isn't viewed as manufacturing the product if they're actually manufacturing during green or supplying the a green how do you how do you say that something really supplying the a green ingredient is part of manufacturing we don't say that your honor and the statute the tennessee statute requires selling purchasing acquiring or delivering an ingredient but then it goes on right and it has place so delivering on a green an ingredient is and under the statute to get it under the can for a conviction it's it's the act that is enough but then there's the extra mins reya element that has to be done with intent to make i guess my question is under the a c c it's is as to be manufacturing of a controlled so you're saying involving manufacturing so to deliver the ingredient would be enough to of the individual and the manufacturing of the controls as long as you're delivering that ingredient with the intent or with the reckless disregard and it's really crucial your honor that involving is the word and it's not is manufacture distribution this court has a large docket of crime of violence violent felony cases where it has to decide whether something is burglary or has as an element the use of force this is much broader involving is much broader in the key obviously argument that mr eason is is setting forth and where the district court in our view got tripped up is on this reckless disregard language and the statute that's pretty much what we've got to decide on it that precisely triggered precise yes and it's at least amount of evidence that you have to have correct so we take mr eason type pathetically that someone could be prosecuted under this statute for it's purchasing an ingredient with reckless disregard that it's about to be used to cook meth that's enough and a few things here first the there is no monroe listed in this a c c i definition and the cases have pointed that out second mysteries and has actually shown no tennessee cases whatsoever we cited several in the cases don't really differentiate between whether the defendant in those cases were was doing it with intent or with reckless disregard but i guess third most importantly reckless recklessness is a robust standard recklessness means you are aware of but consciously disregarding a substantial and unjustifiable risk that something's going to happen that a meth cook is going to occur in that's means you you know something is going to happen or might happen or there's a good chance it's going to happen and yet you do this action anyway that's a robust chander this court the supreme court has engaged in a lot of litigation as to whether recklessness is crime of violence situation so whether it has you know a record assault causing bodily injury has as an element the use of force well this court has actually said yes but if that's a close call this is an easy call because again all it has to do is involve the manufacturer so reckless causing bodily injury reckless assault causing bodily injury certainly involves an assault and certainly involves a bodily injury are you getting your definition of reckless disregard from the ten code your honor and it's i believe it's thirty nine seventeen so i don't have it in front of thirty nine eleven three o two your honor is the steps t expanding this statute was really have over how to how to expand it and how far to expand it and during the course of that history assuming you even get there which we don't think you need to because the tax there was concern expressed about drugs and violent crime going hand in hand there's actually reference back in one nine hundred eighty six to methamphetamine laboratories and how much of a problem that was becoming mr recent is not someone who's outside the kind of the scope of what we think about when we think about our own career criminals at thirty eight criminal convictions on his record these were the only five that were potentials for the a c c a and handsome but he actually had two other drug felonies felony evading arrest which in the old days would have qualified under the residual cla and then when he was in this instant case when he was prosecuted it was because he tested a loaded firearm and had actually a small amount of drugs on him or it's it it might correct that judge lippman got hung up not on whether or not reckless disregard or intent works but she had a problem she thought that we had that the government had to establish that there was intent to engage in a serious drug offense i think that that's that's a little different than the question you pose she said i think there has got to be sufficient intent reckless disregard can't show intent right and i'm not sure i think we're saying the same thing in the in that there does not i mean then then one goes next to involving how does in valving fit with that current and it didn't seem that judge lippman went to that next step about involving being a broad encompassing feature and we certainly don't think that judge lippman interpreted involving in a broad enough fashion and the reason is because she seemed to think that there was still an intent requirement subsumed what exactly is that am i correct that that that to me seemed that the if there is a disconnect and we don't yet know but if there were a disconnect here it seems to be in her worry about defining intent to commit a serious drug effects correct and the fact that she was actually asking that question then involving that at all right and mr hughson has a little bit different take on on on the district court's ruling you know the this is a dyno question it's a legal question of course and so the question is you know does this conviction fit or not in in our view it does for the reasons the technical reasons have stated the case law which i referred to but the case law is really overwhelming in our favor there are a lot of i should say circuit level cases that have addressed these methamphetamine promotion type convictions but all of these other convictions that these court cases have looked at offers to sell there's actually the gibbs case that mysteries and cites is possessing to go back to judge certainly judge she as i read in her colloquy at sentencing she said she's not sure how the definition of recklessness fits into the categorical the modified categorical approach would you follow that then follow that through for us let me try your honor and i think there may have been some concern about that or or i guess confusion in our view i think that we agree m reason and the government agreed that the categorical approach applies under the modified categorical approach he was convicted on of this subsection one that we all agree as to what the the tennessee statutory language at issue is and i think the district court was there too i think everybody was on the same page on that point and then the question is really does every violation of that statute not necessarily mr reasons in particular that's the whole get a corbel approach does everybody lation qualify and that's where you know in our view going off on the on the the an alice point about whether intent is required and whether reckless disregard is the surprises was in our view erroneous you don't really even have to ask that question even if you do comparison as well to the federal statute which is very similar to this tennessee statute in our view it wouldn't make sense for the federal statute which would qualify as an ac a a c c a predicate if there was an intent to facilitate the manufacture of methamphetamine for that to qualify with this steak and state convictions like it frankly for it not to qualify that would be inconsiderate statute use this reckless disregard term your honor it does not it has something about reasonable cause but the only way the federal statute violation would qualify is if there was an intent to manufacture or facilitate the manufacture of methamphetamine that would jump it up into the ten years or more situation i have my time for a morning nappy's the court my name is peter oh i'm with the federal defenders office in memphis and i represent mr charles eason the key word in this case is involving and i think that we disagree with the government in some ways a measure term true in the criminal context it seems to be broad but i think we know from civil cases that there are far broader terms that are available relating to arising out of or even in any way involving those of the types of terms that truly give for example contractual terms there broader scope involving is it term that is somewhere in the middle why do you say that what what what case or grounds would you say well that it that it doesn't naturally it's not naturally an expansive term is an expansive term your no but it's not as expansive as other terms such as relating to i'm saying some authority first order taking that position september of two thousand and thirteen united states franklin the ninth circuit came out with the case it's the citation is nine zero four f third seven ninety three and in that case ninth circuit makes the same observation that we make in our opening brief that relating to is naturally a broader term then involving and we also see it from our civil cases that i think we cite in our footnote that relating to can be construed extremely broadly to encompass even connections that have congenital connection i think mckenney the first circuit i think has got it right it can't be read too probably can't be to read too narrowly it is in some ways an expansive and at the same time a measure it's a term then that gives rise to this line drawing inquiry that we focus on in our brief the first circuit talks about it we as a matter of law the six are going to hasn't spoken so this will be our chance right if the arguments about reckless disregard are pretty hard to overcome aren't they to as as real as relating to involving if i could address the court first i think the government makes the argument that if this statute were applied in the federal context that it would naturally on automatically be deemed a serious drug offense under the arm creeping like we substantially disagree on that point and i think that the government has largely conceded that issue although i'm sure the government may have a rebuttal to it here's how the eight forty three a six applies that's the federal statute that's analogous so if you have a material and you either know or intend or have reasonable cause to believe that it will be used to manufacture controlled substances then that's a violation of a forty three  however it's very clear that the only way that a violation of that statue can rise to the level of a serious drug offense triggering the arm per criminal act is if you actually demonstrate specific intent to manufacture or facilitate manufacture of methamphetamine so our argument from the start has been this when you're talking about it assistance where you are purchasing ingredient that can be used to produce methamphetamine with reckless disregard of the intended use mens rea actually is one significant component that the court can consider in determining either the closeness of that conduct to the actual manufacturing or the remoteness of it and congress seems to recognize that honey cut versus united states is the case that construed eight forty three eight six it determined that if all you are able to establish is reasonable cause to believe that an ingredient will be used to produce manufacturing in that case the district court explicitly gave an instruction for deliberate indifference which is very similar to reckless disregard the maximum penalty is four years imprisonment under no circumstance can that type of conviction qualify as a serious drug offense under the federal statute even with one more pride drug convictions under age forty three a six the maximum penalty is eight years it's only if a jury finds beyond a reasonable doubt that that individual had the specific intent to manufacture or facilitate the manufacture of methamphetamine that under the federal statute you get a serious drug offense sufficient to then later on say you have a gun you have three of those you know serve at least fifteen years imprisonment so i think even congress recognizes that when we're talking about someone who goes somewhere  purposes and ingredient and he may give that a green to someone else that person's proximity whether he's actually in ball with that manufacturing that happens down the line mens rea can be critical if all you connection to the manufacturing their proximity to it or their remoteness to it their level of intent is important in assessing exactly how close they are to that when you factor in i think congress in eight forty three eight six recognizes that that's part of the analysis i think the district court judge women also recognize that as well she did talk about this idea in ten versus reckless disregard for her alternate holding was manufacture and you recklessly disregard that other person's intent under those circumstances the district court correctly reasoned that intent versus reckons this can be one of the factor that the co consider in assessing that individual's proximity or remoteness to the manufacturing what we know what we see from the transcript though of sentencing is that the district court was somewhat pflum extend said definitive holding that we would have preferred it was a hand up at one point i'd come and go up to this court perhaps i would disagree with that characterization but i understand the court's concern about the district court's ruling i do believe at its core however the judge made the district court made the correct holding and made the correct analysis that it really is about proximity or remoteness and that was the basis for her ruling and that was eminently correct if i may also go back to the issue of involving the government made the argument that the case law is overwhelmingly in its favor not so so here are the cases that we ha before us as we try to understand this landscape of involving obviously if you've been me ask you a quick question about the the text of nine nine hundred forty two when it says with intent to manufacture or distribute do you agree that that only modifies the word possessing that's correct or ok thanks when we look at the landscape of the cases obviously if you've been convicted of manufacturing methamphetamine or distributing cocaine i mean you're going to fall under that category involving manufacturing distributing one step removed from that we have really the bevy of cases thomas from the sixth circuit king from the second mckenney from earth they deal with conspiracy  at the horror of that person's conspiracy or attempt is the manufacturing or distribution a step beyond that we have by now i'm in the eighth circuit in vickers in the fifth and they're the courts who are confronted with the issue of how whether or not offers to sell involve manufacturing i think what's really important there to recognize is that even with an offer to sell the court noted the courts noted that the strain on the pla language and they had to resort to the a c c a legislative history and that's where both by name and baker said look the a c ca was intended to target drug traffickers drug traffick intentionally inter the highly dangerous drug drug distribution or if you offered to sell you've intentionally into that world you've intentionally made an offer to sell cocaine under the legislative history in the purpose of the a c c is where you still qualify as an arm for a criminal beyond that i think is where we live are sort of in the gray area beyond that is where we first have to ernst it is  district court opinion but i think it is an excellent opinion if first no it's that there is this other line of cases both coming out of all these circuits but the circumstances there were more remote than those other cases it's a situation where the statute provides that you could be held criminally liable if you deliver controlled substances but the reality is that the district court held that that's that you you could be convicted under that statute or if you attempted to arrange a transaction between two other individuals the district court said look this is much different this goes beyond what binah vicars held in fi about offices cell we're out of around now where you are connection to the actual distribution where the actual manufacturing is sufficiently remote so that you are no longer could be deemed an arm for a criminal it does not sufficiently involve the distribution so as to qualify we're really only looking at the convictions not ok so the convictions of five are i mean the court doesn't need to go client for these under these statutes in tennessee thanks it sounds like you think the court is permitted to go behind those convictions not at all your honor we're relying on the plain language and the over breath in the breath of the tennessee statute thirty nine seventeen four thirty three eighty one and the extent of that statute is that mr east and could have been convicted for no more than the purchase of any ingredient that can be s i mean our argument is that is still sufficiently remote from the actual manufacturing three ziska i think you would quarrel with the with reckoning recklessness being appropriate standard now would not quarrel with recklessness being in the appropriate standard but i'm saying that even with that standard even had he been convicted in that standard that demonstrates a fish sufficient reminders for manufacturing to resist the definition of a serious drug offense under the here i think my time is rapidly be climbing in their opening brief and the government makes a long discussion about or i should say a discussion about the purpose under the methamphetamine a statute that was passed when we look at cases like brandon of the fourth and first circuits they're very clear it doesn't matter how the statute is described or labeled by a legislature what matters is what was he convicted of when we take all these things into account her position is that the statute under which mr eason was convicted and the over breath of that statute allows a determination that this was not an arm criminal serious drug offense the legislative history we believe is in our favor as well and even if the legislative history were uncertain the rule of lenity applies particularly here we're talking about a sentencing enhanced meant put two main points first mr o with regard to the case law mr omission of brandon and will kern and when we say the cases are in our favor we mean that the cases that almost uniformly found that particular convictions qualify under this serious drug offense definition those two found that the convictions it is you did not and the reason is because those were both possession only cases or at least those statutes allowed for the potential that someone could have been convicted under the state statute simply for possession but that's not what we're arguing we would not be arguing that possession itself would qualify because that's not involving manufacturing distribution or possession with intent mr easton though through his briefing in the litigation here is really given away quite a bit in terms of what does qualify as he said he conspiracy to manufacture methamphetamine would qualify attempt to manufacture methamphetamine would qualify buying these ingredients with intent to manufacture methamphetamine he said would qualify and so the question is really does this statute which allows for the recklessness minge reya all closer to all of those things than it does to into manufacturing itself then to the simple possession type cases the answer is yes i mean the the answer is as good solid put it you can't manufacture without the ingredients and what's going on is the tennessee is trying to criminalize the amassing of ingredients for a methamphetamine mean that involving again about as broad of a term as you'll see and if if recklessness is enough in the has as an element the use of force or even debatably enough in that case it certainly matter and issue an opinion in due course thank you