good afternoon america please the court my name is dan leading r t and i'm appearing on behalf of brian williams this case presents the question of whether a statute that permits blocking teaching to be based on possession of one or more grams of crack cocaine is a controlled substance offense under the guidelines mr williams was convicted of being a felon in possession of a firearm he was not subject armed criminal act is guideline range however was based in part on prior states that a person who manufactures distributes dispenses delivers purchases or otherwise aids abets attempts or conspires to manufacture distribute dispense deliver or purchase or possesses w seventy five in the past i don't believe it as a patient to address the specific provision at issue in this issue which is the provision after the provision i just read and after the penalty provisions which state possession of one of more grams of methamphetamine or cocaine base is prime aphasia evidence of a violation of this section from official evidence is defined as evidence that will establish a fact or sustain a judgment mr williams was originally charged with trafficking and the indictment specifically charged among other conduct that he did knowingly actually or constructively possess more than ten grams but less than twenty eight grams of crack included offense of the charge in the indictment looking at the government's brief in this case it would appear in footnote seven this is on page thirteen of the government three that the government can seize that he did be i d d is not a lesser included guilty to possession with intent to distribute your honor in reviewing the record today it did not appear that you got that far the argument did not get that far at the district court level and i think that the far back argument and the argument that was still not been vacated yet regardless what the individual crime his if in fact the violation can be based on possession of one gram one gram of cocaine or methamphetamine then it's statue so forth alternative elements that can lead to a conviction so mr williams may very well have walked into the courtroom and admitted that he possessed one gram or more of cocaine base and that would have been in fact plead guilty to possession with intent to distribute crack cocaine as it's written out on the form what box was supposed to be checked were they supposed to check defendant waives presentment to the grand jury on the theory that he had in fact waved a white box do you think they should have checked if it's not a lesser included offense it's not what he was indicted for so is this here to ensure that before you plead guilty to something you've either been charged with it in your indictment or you have waived presentment is that what's going on but i'm just  i don't know that i can answer the question definitively i don't know that in every case one of these boxes needs to be checked it may be the case that it's possible for a defendant plead guilty to something that is in fact not a lesser included offense or in the indictment if it is otherwise on that true field to call him feel that that doesn't necessarily mean because of the special provision of the statute that there was an element of that offense of intent to distribute i just have one last question about the form and then i'll stop if you are right about this argument that because of the crime if a she evidence provision you could be convicted of to set possession with intent to distribute based simply on possession then doesn't that mean that in fact possession with intent to distribute is a lesser included offense of trafficking i mean doesn't that aren't your two arguments inconsistent i thought the whole point of your argument that it's not a lesser included  fense was because possession with intent to distribute requires intent to distribute which you don't need in trafficking but the whole point of your nd argument is actually they're the same thing because you can be convicted of either one just based on possession so earning two pounds so as i was going to be even if the court concludes that mr williams was convicted of a crime call possession with intent to distribute the branding case addressing north carolina's trafficking but the court this court in the brandon case ignored that and said it may very well be that north carolina was was considering the fact the common usage of that term for have been means that a person didn't and to distribute it but that's not made an element of the offense in the statute and so we would submit that also in this case is not made an element of the answer because it can't be proven by possession alone certainly the general assembly could have set forth  that possession of one gram or more constitutes evidence of a presumption of intent to distribute and in fact an adjacent subsection of this very statute subsection d indicates that possession of manufacturing equipment gives rise to a presumption of intent to manufacture this provision is different it does not link to any particular element and it's linked to quote a violation already can i ask a question and you may have touched on this earlier and i missed it but of course we don't have the complete colloquy in this case we don't have a transcript of exactly what was said or not but if i understand your argument correctly you're saying that a defendant in south carolina could admit to a judge that i possess a certain amount of in this case cocaine over the amount that establishes the statutory inference of possession with intent never admit and intent to distribute and that alone would be enough to convict or accept a plea of guilty is that is that right your honor based on the plain language of the statute i don't know that we can say that it would not be accepted just as in north carolina   mission of possession over the threshold amount would result in a conviction for trafficking i mean i would imagine though that the judge and a player would recite the elements and but i suppose if you didn't want to admit the element of intent that a judge could still give be within its rights to accept that their plea is fully supported by the facts based on the base on the statute that's exactly right and that's exactly right your honor in the borough case of course there was a plea transcript essentially i guess the gold standard of a shepherd document is it's just so much more like on one specific crime assuming you have it available statute the defendant was convicted of but we don't have that here we have one shepherd document certainly as this court has seen and he says in the past the south carolina sensing sheets sometimes leave much to be desired in terms of their clarity and that has resulted in i understand many cases coming to this court on appeal regarding the south carolina statutes because mr williams could have been convicted based on possession alone and for all what we don't know what happened and it may be a totally different situation if we instructions are very clear right that this is just a permissive end friend senate doesn't relieve the state of the obligation to prove intent and the jury's still going to have to find intent beyond a reasonable doubt would that not transfer over to the i mean i soon the same would be true when a judge takes a guilty plea right where your honor and i'm just having trouble squaring your reading of the statute with the all these pattern jury instructions i guess is my question i don't understand the question from actually proving beyond a reasonable doubt the element of intent to distribute but i mean right so what you're saying to the extent the instructions say that it's inconsistent with the language of the statute that's correct second a conviction for south carolina he would under that statute requires the state prove beyond a reasonable doubt and intent to distribute and rd south carolina  under that statute is a controlled substance offense under section four being one two of the sentencing guidelines because those three things are true the district court could not bear in  honors there was no error clear or playing in the district court finding mr williams two thousand and three conviction was for peewit crack cocaine the government or the and sentencing to show by the hundreds of the evidence the facts underlying that prior conviction that supported the sentencing and handsome under the higher clear said well your honor i admit that i possess that two grams of cocaine in this case and that's all that i'll admit and the court then looked at the statutory inference and said that's all you need to admit you're guilty pleas accepted and that's the colloquy that we have in front of us would you concede that that offense applied to modify categorical approach and in looking at the facts of that coll that contested trial that relied solely on that evidence to prove guilt and the stated move for a directed verdict you think that directed verdict should be granted if th possession yes i think that if the fact father cannot find beyond a reasonable doubt that there was intent to distribute then that conviction and i don't mean to send you here because i don't know that i don't think this case was cited by either party but there is a supreme court case called johnson versus state on those very same facts and the side is for a the south and thirty three where the court denied a motion for a directed verdict by a defendant on the ground on facts it's to show that simply possession the court said that possession alone given the statutory inference was enough to allow that case to go to trial so that i'm having a bit of trouble then understanding it that's the the state of the law how we can say that this is a controlled so serious a controlled substance offenses sufficient for would seem strange that that would be enough mean agree with your honor that it is odd language but i think we have both from this court and from the south carolina court of appeals and supreme court cases that support the idea that this is a permissive in france that does not negate the state's obligation to prove beyond a reasonable doubt that element of intent to distribute in this court in marshall this court sorry i didn't mean to interrupt but so let's talk about what that language permissive statutory inference means it would seem to me that what that what that suggests is that if a jury or a fact finder of fact could rely solely on the quantity of drugs involved in a particular case and find solely based on the quantity that that's inconsistent with personal use more consistent with an intent to distribute and that that evidence alone you know based on the quantity of the drugs involved would be enough to convict you don't think that's a reasonable inference in a case that a jury could make i don't think that that is statutory language in what the statute requires in south carolina i think that it is an evidentiary presumption but i don't think it negates the element of the crime hurts no no no you go go go judge just so i don't mean to beat a dead horse but it doesn't matter in your mind what the quantity of drugs that's involved the state has to present something more besides corner in order to sustain that conviction for pee wee under three hundred and seventy five dollars b yes the state must resent that additional element of intent to distribute i think under the south carolina my algae no i'm sorry because i just wanted to make sure i understood see you are not just saying that under north south carolina law the jury has to find beyond our reach a reasonable doubt intent you are saying that that cannot be based on quantity alone even if the person has and i don't know my numbers but a one thousand kilos of a controlled substance you're element of showing intent to distribute commit to as you just another question about the statutory structure which i'm struggling with so this crime of facie evidence provision applies to the entire subsection so how would it work if you applied it to the st subsection of be so say someone was being charged with manufacturing a controlled substance or methamphetamine is it still the case that possession of one or more grams would be prime a facie evidence now of manufacturing that just seems so odd and your honor i'm by have you asked that question because i think that is exactly one of the problems with the argument that appellant is making here is that that argument com multiple problems with different elements it criminalizes various types of conduct but it explicitly does not criminalize mere possession of the south carolina legislature we need not move far from the statute issue in this case you get precisely where the south carolina legislature did that in three hundred and seventy five see where felony trafficking is defined as zeshan of a fresh hold amount that is all the state need crew for trafficking possession with intent to distribute is a different offense and her wires proving intent to distribute frankly the three violation of that statute is proved by possession of a threshold amount and the difference between that and he would under three hundred and seventy five dollars be in south carolina he would require the intent to distribute element and that is why the brandon case does not decide this case in addition to the south carolina cases holding intent to distribute is an element of people with earlier on page three hundred and twenty of that opinion the similarity between the statute issue and marshall and the statute issue in this case and said that for our purposes the sole distinction between the mar statute and this statute is that the former applies to all controlled substances and controlled substances analogues while the latter specifically contract serves methamphetamine and crack cocaine does martial holding had seen all the cases and the jury instructions and everything saying that intent to distribute is indeed an element that must be proven beyond a reasonable doubt for p w id but that seems to me to be yet there seems to be some space between that and saying and you can't prove it by reference to a quantity of drugs possessed alone but you are saying both things it's a separate element it has to be proven it is not conclusive it's not that if you're caught with you know whatever it is one or more grams it's conclusive absolutely that counts as distribution i think it is clear that the case law says no  no intent to distribute you need the intent as a separate element but you are also saying and that element cannot be proven under south carolina law by reference to the amount possessed alone r mr williams the factual basis that led into his federal charge involved distribution of less than a gram and while i'm gone he engaged in two additional controlled bottles of less than a gram is just is there anything in the legislative history that explains what this provision is doing here was there an argument being made that i mean the only thing i can think of is a possible that there was an argument being made in some of these cases that the prosecution can't rely on the quantity of the drugs possessed even in combination with other factors to show intent like you're just not allowed to allude to the quantity at all i mean is that is that what this is here to say that like look you have to prove intent and you were allowed to rely in part on the amount of the drug that was art i think the south carolina cases tell us that intent to distribute is a separate element that must be proven or it gets a ban to it that the amount involved alone does not prove that ed you have to prove intent one of the ways that you can prove intent is by using that permissive imprint and so i hope if there's no other evidence other than that premis if there's just quantity there is intent to distribute now they don't have to accept that but they they but they often do and that's all they say does his that was position and there was this amount of drugs in and the state in your heart i would say that again the instruction would be that your partner to prove beyond a reasonable doubt that intent to distribute and i do not believe that the purpose of imprints language specifically says this amount is statutory police insist can't be fast and sentencing mr williams never can get contested that his conviction was for pilate crack cocaine and the government several times put forth the argument honor i think that there is no argument here that mr williams was convicted of crack cocaine council i mean i agree that it doesn't look like it was raised below but can you just tell me what's going on with this sentencing sheet why did they check lesser included offense what should they have checked what's what's going on here and here are i believe that under different subsections not at issue evidence that the government met at sentencing to show that picture i mean i think that i think that might be right i would just say that i've seen a bunch of cases recently where much like this where a lesser included offense checked and it probably shouldn't have been and i just wonder what's going on and maybe someone should do something about this because this may not be the right case to get to the bottom of it because i don't think it was raised below and so the disorder didn't have a chance to address this but i am sort of concerned and both that just questions are going to keep coming up perhaps needlessly if this is just a clerical error that perhaps people are supposed to waive presentment if they're about to plead guilty to something for which they haven't been charged and they're not so it just seems like maybe someone had to sort this out i don't know if you're in a position to do that but just raise it as a concern that maybe could could be taken to someone in a position to try to figure out what's going on here because this is coming up an awful lot these days i understand that concern me i have a moment just to finish on where you can respond to just harris's concern and briefly we're up a certain i think in your arm i agree i think this sentencing he may have a clerical error i do not think that mr williams pled guilty to is ambiguous i do not think that the government did not meet its burden and i think there is substantial evidence showing that mr williams in this case pled guilty he would crack cocaine because that crime under south carolina law requires showing this action and intent to distribute i think it qualifies as a controlled substance offense under the guidelines and therefore we strange in a great many ways but not the least of which is as you pointed out that sort of presumption or statutory inference makes no sense in the context of the other ways in which you can violate the statute frankly when i read it i just assume that the legislature was focusing on focusing in on possession with intent to distribute and that's where the inference logically should apply but it doesn't seem to so you could read it differently well  i agree that it seems to be more naturally fit with some of the specific means or crimes delineated in the statute i think that it could fit with purchase that's one of them somebody in possession  end of the case the this court talks about that the presumption that the government argued for there could be associated both with manufacturing or distributing so that the quantity there they said could lend itself perhaps or at least the government argued would lead to a presumption of manufacturing have to acknowledge the statute it is maddening on several levels and it doesn't appear that this particular provision fits naturally with all of the various crimes that are delineated there but it does appear to work with several of them and the plain language of this provision and that's what i'd like to refocus on closing it does not mention a presumption and it is not a seal stated with any p crime says a violation so it refers to the entire subsection and when we look at the teaching of brandon you know the fact that it doesn't have a connection to any crime and it doesn't mention presumption should we interpret it as having that even though it's contrary to the plain language or should we interpret it that way in the brandon case which dealt with a threshold amount of twenty eight grams this court went in at lax about how twenty eight grams is right intent to distribute was not a statutory element it didn't have to be proven to the jury didn't have to be found beyond a reasonable doubt so just hypothetically what if i think that the best reading of this provision is that this case is different from branding you have to prove intent beyond a reasonable doubt and the fact of possession of one gram or more is not going to relieve you of that burden you're not allowed to say you don't have to find intent it's still an element that has to be found by the jury but if the jury wants to it can find beyond a reasonable doubt that there was intent to distribute based only on the amount of the drug in question if that's the situation it's still an element that has to be found beyond a reasonable doubt but what evidence the jury uses to find it might boil down to the quantity of the drug if that's what's going on is that a categorical match or not because i could understand an argument that that's still a categor because that's a very formal inquiry we just look at the elements and if the elements match up were fine and now intent is an element and who cares how the jury what the jury relies on to find out all the categorical approach asks is you know is there a match between elements ensure that your honor in all candor is yes that would be a categorical match in this instance we argue that it does not give rise to that presumption and i know them certainly the government's best arguments here are based on that your instructions that you mention judge hears and mention and the south carolina cases in dicta not really being confronted with what is still an already i'm sorry what what is a presumption have to do with it if in fact it's a categorical match and i'm not calling the question to be if it does give rise to a presumption and a jury would have to find the element of intent to distribute if that is the case is it then so your argument turns on your argument is intent is not an element of this crime the jury does not have to find intent to distribute beyond a reasonable doubt that's exactly right  called trafficking but the element does not exist because of this clear stuff for language the furlough analysis is is accurate then in that instance we look at is a reason for us to then impose a two to create an inference there and in light of the threshold amounts and the teaching of brandon we would argue that  reciting the elements of this offense would have to recite at least two elements right of possession of a certain amount of one not even a certain opposition of narcotic that fits within the statute and intent to dist you are you saying no that that's not the way does work that's exactly right where we're saying that the judge would have to you would instruct on the planking which of the statute which is that you can find these elements blaming the normal elements do that here obviously but we are grateful nonetheless for your helping us in resolving this this interesting case and with that the court stands adjourned sunny dot madam clerk