circuit we know it before you start and we know there are students are going to have to leave after the rd argument we've been really happy to have you with us and the lawyers in the th case will not be offended because they know you have to make a boss so it's no reflection upset that apparently none of these students will be attending the college of william and mary cheney on i'm sure they were all admitted we are here this morning for two issues  regarding mr norman's conviction and sentencing the st has to do with the unconstitutional search and seizure of materials from a vehicle in which mr norman was sitting on the day of his arrest and the nd has to do with the legal argument regarding the use of his prior eight hundred and forty six conviction as a controlled substance offense which enhanced his it was a proper this is on page two hundred and five dollars of the joint appendix quote it was a proper search which was incident to an arrest and based on the testimony also they had probable cause to search because of the testimony that there was in plain view evidence of drugs in the car  the search incident to arrest is bad because under arizona v can't mr norman was detained and away from the vehicle he had been arrested on a supervised release violation warrant and so there would be no evidence the supervisor of an known at this point there's no evidence in the record of what the supervised release violation was there was no evidence in the vehicle of that violation and he was detained away from the car and the deputy took him out of the car he searched his pockets and found nothing but cash and a cell phone with their rest of the  firearm was see no and well without you have to then the record have to show or the judge have to fire that they discovered the evidence in her hair or maybe the evidence argue not because the officer who was the initial officer who may have been involved in all this mcclary did not testify in this matter and so each of the officers who came to testify said that they they did not speak to either defend either the defendant mr norman or to the passenger and they spoke briefly one officer spoke briefly to mcclary i don't know what was said i don't know when the search of the passenger actually took place relative to when they found the gun in the vehicle  officers testify that they saw what they thought was they found the package the package of what it was in the car before they arrested him and the cash so there's also white stuff on the console they saw also white stuff on the console and the trial one hundred dollars in cash while a bundle of cash the problem is that what was removed from mr norman to pocket was only the officer did not count it and he put it back on the seat and in the photo you have a one hundred and some odd dollars showing on the seat and then there's some other amount on the floor of the front seat yes side yes your honor that's where the money was and what i find very interesting is that in one of the photos i think it's exhibit four you cannot see moment how much it was and how much they knew did they want to see what they thought with a packet of drugs and a bunch of money before they searched searched the vehicle yes going to that the white substance was on the console that the case was brought out well to that point your honor the officers do not testify that the judge didn't talk about that in the they if this dog clear from what the judge said are we entitled to look at the transcript and bird out for ourselves or have you all helpless figured out for ourselves if you're willing to admit that gourd to the testimony it all happened before they went  controlled substance issue in that correct that's correct never have to consider that question so you've got to you have to lose all of them on the seizure act with your he gets to argue about the controlled substance russian gets to stand up right after you tell us what the timeline is so that the best you can do for yourself right now is establish that whatever he's going to say is wrong right about this timeline correct and i do not think that the record is clear enough to be able to say that it's clear in the record as to when things happened to be candid the gun was not discovered on the st search that one officer did and it wasn't until another officer one you're challenging the where they found the gun well yes but i mean i would warrant that the entire you don't want any of that evidence right i mean i want a warrant the entire search of the vehicle is bad under arizona began imagine that you're so going to look at all of the various possibilities under you know arizona began to inventory search plane view inevitable discovery and you have to i have to be able to say none of those right and it would really if we agree with you that none of work what do we do with the case well you vacated his conviction and send it back to judge her along so that back to what dismiss the entire case although they i guess the government would still have a witness and princess why when judge are long be indicted to explain it further that a conspiracy theory yes or under that line of cases then a forty six conviction does not qualify as a controlled substance offense based on conspiracy being overbroad under the contemporary meaning the way you do with all the dicta in these other cases in which the government heavily relies involving this particular statu well what do you do with it is that it's dicta you know the express holdings of those cases were not contingent upon determining whether conspiracy under a categor definition of instant offense in the guidelines is broader that perhaps a narrow definition of controlled substance offense that naturally would include you know relevant conduct which would include a distribution or possession with intent to distribute that sort of thing so that you get to use that i mean the specific holding of kennedy was that it qualifies as an what were you going to say i was going to say it's dicta in the sense that the two holdings of kennedy were that it qualifies as an instant offense and that the sentencing commission had the a thought the broader authority under ninety four dollars a to include conspiracies in the definition of a controlled substance offense doesn't answer the question about whether where your honor i think it's st under important understand officers longshore who arrived on the scene and officer mccleary along with deputy u s marshal and mc poland were there to execute an arrest warrant they were in fact warrant deputies they were not narcotics officers in officer long shorts testimony he makes clear that he had approached the driver mr norman he had asked him to step out of the car and conducted a pat down on the other side of the car mcclary and nick poland were doing the same thing with ms harrison at that point they found cocaine so show me in the record which tells me about time absolutely your are i would point to that point we have on page seventy six dollars the record officers harben in duluth or in roper were narcotics officers the warrant officers once they found drugs called in the narcotics officers at the top of page seventy six the ickle was searched before the cocaine was found on his hair since person we know that it was officer roper who found the firearm and your honor we should talk about ghana a little bit but also the elephant in  which is the automobile exception when they found a bag of cocaine in mishears is here which she admitted was cocaine they had at that point they could have searched the car incident to her arrest she was arrested for possession of cocaine for further evidence of that drug within the car gant it's quite clear about that but at that point they had cocaine in hand and they also had probable cause under the automobile exception to search the interior of the vehicle and every compartment within it i think you're saying it's clear that they found  lee it's a it's abbreviated holding but he does find that there is a search incident to arrest which is valid and additionally there was probable cause for the search this court of curves of course may affirm for any reason in the record irrespective of what the district were found but i believe based on the testimony based on the argument based on the judge's holding that both the automobile exception and the search incident to arrest exception as articulated in gannett make that clear one point i want to make about aga gannett revisiting the doctrine of search incident to arrest and gave two justifications the st being officer safety and evidentiary concerns but the nd being that officers when they arrest an occupant the vehicle that they then may search the car pursuant to any evidence looking for any evidence of the crime of arrest and of course we have a drug arrest here to court in ghana also though rearticulated it's discussed gantt in the context of the automobile exception that cases is regrettably not in our briefing it's one that i came across in preparation for a large amount but i would point to that case is a good analog here in that case like here  car was approached the driver and the passenger were asked to step outside of the vehicle the passenger was then searched it was cocaine on the passenger in this court held that officers there by under the automobile exception had probable cause to search the entire vehicle and all the compartments within it so it would be our position that under either the automobile exception or the search incident to ms harrison's arrest that the district court should be upheld on that issue  i'll now turn to the question if there are no further questions on the st issue the question of whether eight hundred and forty six is a controlled substance of it is there any reason why mccollum's analytical approach does not apply here yes your hon opinion it cites garcia santana so you would agree that the categorical approach applies here no i would not your honor you know because you don't because of the nd case from the th circuit which i was about to get to the year after garcia santana the th circuit look to the question of and forty six pacifically and in that case in rivera constantino it found that it need not conduct a categorical approach because the commission's intent was quite clear and your honor there's precedent in this circuit in judge king's opinion from  clear that we start whether the intent from the commission is clear and if it is that is it different that was a different issue in that case it was a different issue but it but the fundamental principle about construction of the  guidelines that we interpreted as a statute to give effect to the commission's intent remains true here and that so you i'm just want to be sure i understand the foundation of your argument you agree that generally we apply the categorical pro choice even when we're dealing with the guidelines that's correct but this is a special exception to that your honor when the guidelines intent is clear from the language of the guidelines the court need not actually not in the common and the common law there is no overt act recall today but in the generic ellen de generes also i take i take your point there would be no requirement of an over words there's generic definition come from the generic definition  s conducted by mccollum looked at all the state statutes in all the federal statutes and while a broad majority of federal statutes do not require an overt act the majority of state statutes not i didn't think from meeting your papers that you made the argument that it was wrong to say that the generic definition of a conspiracy and how does that cut so in in my column this court said that there are fifty one violent conspiracy statutes in the federal code some of those require overt acts some do not there are only two controlled or state law qualifying conspiracies are controlled substance offenses there are only two federal controlled substance conspiracies neither require an overt act so to adopt the position that appellant puts before this court is to say that the commission defined controlled substance offense to include federal drug conspiracies and yet really intended to exclude the only two drug conspiracy statutes in the federal code that's why we believe that control subs offense eight hundred and forty six conspiracy is distinguishable from federal crimes of violence crimes of violence there are fifty one conspiracy statutes in the federal code not all of them require an overt act and so it was not as clear to the court and in that case a categorical approach was your honor appropriate and so we and i think that's probably a good argument but i didn't understand it so i mean my colleagues did it so there no overt act necessary we don't disagree that if the commission wanted to put a forty six expressly in there it could do that and it may well have to do that if the case is continue in this pattern right but your honor it we do not need to go that far we presume the commission to understand case law we can look at the language of the guidelines we can look at the language of the commentary and see that it cannot be that the commission intended to exclude the only two federal drug conspiracy statutes from the definition of controlled substance of fence which it said is federal concludes federal law and includes conspiracy and so i think that argument proves too much for you because i don't know why that argument wouldn't do away with the categorical pro choice for everything well you just say you know what we look at the intent they intended it well there's absolutely a limiting principle here and we would point to me what's a limiting principle the limiting principle would be if there is it is not clear from the language whether there is an intent an overt act intended or not in a column for instance the fifty one dollars statutes one hundred and sixty dollars federal statutes at large not all of them had a commonality of requiring an overt act or not and so it wasn't it wasn't as easy to kind of look at the language of the guidelines and have proof of what the commission intended and then to give effect to that prove it was not as clear and so i think one of the issues that's come up in briefing not in just in this case but in other cases is there is clearly this tension between kennedy and walton and that line of cases in a column what we what i would like to put before the court though is a rd way that this court can issue a published opinion that is not disparage either line of cases that does not have  you know based on the prior panel analysis it doesn't have to even cast any doubt on those cases it can distinguish those cases just as the th circuit did in rivera constantino we didn't simply stand on the precedent of  santana and say hey we'll just because we have done a categorical analysis of conspiracy that forecloses the a forty six issue here the th circuit was able to distinguish those cases the circuit can do the same the th circuit  facts with respect to general crime statutes the opinion is is quite plain that it is wrestling with the unique complexity and in the opinions words of a general attempt statute and in fact the central holding of the case the quote is where as here a generic attempt statute includes all or almost all of the state substantive crimes we must conduct both and elements analysis of the in kaho it the tent as well as the underlying substantive crime i believe that dozer is best read as cabin and by that analysis to general attend or general conspiracy statutes and it's not so sweeping as to foreclose every other potential means of review when we are looking at an attempt a solicitation a conspiracy some other  getting at the underlying substantive offense one other point i would like to make about dodger in dozer this court of course articulated the elements of a general attempt the case in which it relied on your honor was a case that you authored in united states v neal judgments and in united states v neal the elements of attempt that were articulated there were the elements of eight hundred and forty six eight hundred and forty six attempt elements as identified in dozer so what this court has not ruled so yet i believe it is inescapable that eight hundred and forty six dollars will in fact be a controlled substance offense and now we will be in a position if norman prevails divisible by seven parts would be both a controlled substance offense and not a controlled substance offense and so that is just one further point that i would put before the court as to the the problems with the appellant position here   it's clear that this is an issue we say candidly that this is an issue that the court is struggling with this is the nd time this term in the rd time this year that this court has visited this issue it may in fact have to visit that issue again and it would be our position that it will require a decision of this court on bach or decision a united states supreme court i think to finally put clearly through this particularly thorny question and your honor i see i'm bent out of time if there's no further questions we would respectfully ask you heard your colleagues argument which i thought was a little different than the argument the brief maybe i just didn't understand the argument brief but a little more sophisticated apparently he is saying that the categorical approach doesn't apply when you're dealing with se immediately after i began to pat him down and check him for any weapons or contraband that might be on his person shortly after i was notified that someone had found some very unclear as to found some and also on page forty nine the direct testimony of deputy luther they had located an individual and was wanted on a warrant of some type and they had found contraband inside the car that would be a political what we would investigate there's nothing there about they found something on harrison outside the car and then in the car they found something in the car clear that's an assumption based on no authority because the word is there conspiracy the intent is clear is not backed up by any  background material or other citation to other cases that sort of thing so i would warrant that the intent is not entirely clear  mr andrews makes much of the fact that there are only two drug conspiracy a federal drug conspiracy statutes and surely it's clear that  conspiracy would cover those but unfortunately the definition of conspiracy goes to both it doesn't differentiate in the guidelines and say well conspiracies as to drug offenses or conspiracies as to crimes of violence it just says conspiracies and so you have and an offense which covers both crimes of violence and controlled substance offenses and so it doesn't matter  contention that it doesn't matter that there are just these two correct because as opposed to all these other statutes because conspiracy definition itself covers a whole raft of things that's correct or the lack of definition mccollum very clearly takes on that analysis based upon a conspiracy to commit murder under rico quickly panel had no problem saying that an enhanced sentence may follow a conviction for encode crime only if the defendant's conviction necessarily established you know morales warrants correction if we go back to the search even though i called you off it a few minutes ago i do recognize that if we should find that the record isn't clear with respect to this respect the timing basis for this particular claim is that they didn't have a basis to go search the car but right saw the drugs what turned out to be drugs and they saw the money right well again i believe that jeopardy is the gun correct charge ok thank you very much thank you we will come down see a little lawyers we know our students have to leave and we thank you for com