because montana's definition of cocaine is broader than the federal definition of cocaine specifically the statutory definition of cocaine in the controlled substances act plane air exists here because the guidelines were miscalculated and that plane air affected mr lascelles substantial rights under the supreme court's decision in believing that morales is two rooms how do you get around coronado honor in that case in a way i understand what the government saying is that that was a case that involved the regulatory definition but kora nado actually is a case that looked at the charging document to determine if the charging documents could be used to establish the categorical analysis it didn't look at the issue here which is the statutory definitions so it doesn't even address the issue that we've raised in this case so i think cora nado doesn't even apply is there any case that's done this what you're asking us to do the lorenzo decision did it initially and it was all about and that was withdrawn ok but it's not that lorenzo is authoritative and dictates the results here that's not our argument it just supplies the analytical framework that shows that we're correct and if you look at th circuit case law regarding player review in the categorical analysis context there are cases where the court just engages in full categor what's your strongest i didn't hear you identify a case i'm not trying to be tricky i don't think we've done this exactly what year and it's really a plan ominous i think result of the of the difference between the statute and the regulation on the federal is there a case where this has been followed no other than in lorenzo which it obviously was originally published in withdrawn and then nonpublic position so it's not that lorenzo again says you have to reverse here it just provides an analytical framework which is again the broader taylor categorical analysis which really doesn't matter if it's day no review or plain error review i think it's possible to connect the dots the way you're trying to connect them and get to where you want to go i'll grant you that that's just me but that seems right except it is certainly a novel approach so how do you get past plainer it's not novel when you look at the categor analysis you have to look at what mr lasalle was convicted of in montana which distribution of cocaine and determine whether montana's statutory definition of distribution of cocaine is the same as broader or narrower then the federal definition and specifically the federal definition of cocaine that well we would expect is that on the federal side the congress under the controlled substances act as it is relying on the d regulatory definition and then congress in essence overrides the regulatory definition in one thousand nine hundred and eighty six and that's the definition we're left with is congress's statutory definition of cocaine in the government doesn't dispute it didn't  even answer in its response brief whether the definition of cocaine congressionally is broader or narrower than montana since it's clearly more narrow because montana includes honor that doesn't mean that plane air doesn't apply and i completely agree that i think the taylor categorical analysis the approach at least to me in my practice is the most complex area of reoccurring analysis that i have to deal with i literally have to break out the books every time i stumble upon this and do the analysis again and it's incredibly complex i haven't done a exact analysis but it seems that in this court's published opinions over the last couple of years in criminal cases it's the tailor categorical approach that is probably the leading subject matter and that's just how complex this is so the fact that it's complex that this is a novel argument doesn't mean that there is playing air under the categorical analysis and i want to emphasize that the government has not disputed that the federal definition is not as general the power to and substances and the regulatory framework which he in turn though he gives to the drug enforcement agency is unconstitutional deletion of power that's been recognized for this court recognized it long before the supreme court in the to be decision that that's fine but there's a difference between scheduling and defining and that's where the government's just wrong and it's an answer brief it's focusing on scheduling and the issue here is the definition and i don't know how you can get around the fact that congress has offered its definition that that's the authoritative definition and somehow argue that a preexisting and you are correct judge agency definition by the da somehow even though that precedes the congressional definition that's controlling here there's just that makes no sense in terms of the supper this is sort of a reverse chevron situation where the leader statute limits the regulatory and to protection exactly congress is the ultimate authority so i just think that argument is a dead end for the government so m m i did i assume something incorrectly in my earlier question or is it the case that this what i'm going to call an anomaly this circumstance and this is about the difference between the federal statute and the and the regulatory definition on the federal side that has existed for twenty years and i think you said that much mike my question really is in montana has anyone raised this not that i know of ok in montana the legislature again this is all briefing or opening brief aligned its definition right with federal regulatory definition and obviously if somebody said look closer at this would say wait a minute we have a problem we need to make this really minor scrivener change and align it with the statutory definition that congress has acted which would be a simple change but i think no one's noticed this the contents since she was not visible it's visible in the sense of the type of drug has to be identified cocaine heroin methamphetamine marijuana but beyond that in terms of th particular chemical makeup of the drug here specifically cocaine it's indivisible which again is where lorenzo it's not authoritative it doesn't control but is instructive because there was multiple layers of indivisibility or di visibility analysis i see i've got about a minute and twenty seconds left all reserve that for a bottle unless there's more questions he was may please the court my name is brian de can i represent the united states and it's important st your honors to step back and to consider the purpose as to why the court is here and what the issue really is before the court here today and as we look at this is  categorical approach analysis that the court is undertaking to look at the controlled substance offense under montana law and compare it to the controlled substance offense under montana or under federal law so the way that that happens is this court is well aware if you go c it says unless and until these are amended under the provisions under eight hundred and eleven dollars so congress specifically sets out in steps forward that there is going to be a way to alter the original schedules that are in a twelve so then you opening brief page twenty two in the footnote you'll notice that there was a two thousand and fifteen update to the regulation that removed the substance from the definition of cocaine and why is that important is because in that same definition your honor it perhaps get rid of this definition this cocaine derivative definition but it didn't change it in two thousand and fifteen it remained the same in two thousand and fifteen so technically your honor this regulation has spoken last and that's a very important distinction  amendment to conform the definitions within title twenty one dollars and that was the name of the bill itself was a technical amendment and so from that point forward you can see that congress actually knows how to limit itself when it wants to limit itself for instance in the that it wanted a specific provision or system a specific substance added in to the schedules and again in two thousand they do the same thing with g h b so what congress is doing is it can specifically say yes we want these substances added into the controlled controlled substances act under these schedules and it specifically says your honor notwithstanding the provisions of eight hundred and eleven dollars and so it's recognizing that there is something in there that says ok we've given the support over to the attorney general and who then gives it over to the da to schedule these drugs but when we want something specifically done we're going to tell them that this is what we want done and if there is a challenge to the actual regulation itself in thinking that there was some sort of overstepping is judge breyer was was referencing to this is not the proceeding and not the process that this is been set out for there is a process under subchapter twenty or under i don't you're you're losing me now what's not the perceiving what's the and your sentence i apologize your article and so if you look at title twenty one section eight hundred and seventy seven that is the process where you can challenge what the attorney general has done under this subchapter consul he does have an interest in that he's just trying to avoid the sentencing  result so so that argument seems to me to be a strain i as i said i think his argument is novel and interesting and under a different standard of review maybe with that one we need to engage and i wouldn't i'm not so quick to write it it has not changed has not been challenge and there is certainly the opportunity this could have been challenged at some point it could have been challenge to the quite frankly under the procedure that i was describing under age seventy seven if they believe that the attorney general had overstepped at the center oh at the time of the sentencing no it was not challenge your honor and there was not a challenge that was in place at the time that sentencing no you're right and so were the court is looking then is as has already referenced today is the core not a decision in the core not a decision provided they looked to the regulations and it was dissimilar situation as to the lafont decision which is an unpublished two thousand and six decision of this court which again did the same thing but the reasoning behind why that occurs is very very important and that is because of the expect if it is yes your honor i would i would agree entirely yes and so yes it did that is the only way that we get there in that circumstance i appreciate the finer points of your argument i'm just not sure that we reach them at all now and certainly your honor in the end the government would agree with that analysis for sure we're just making sure that we're looking at this argument and we are saying there is more than just what the statutory scheme in title twenty one dollars provides because congress itself dictates that it wants to have the ability to update these schedules on a regular basis as this court held in the n t decision cited in the defendant's brief they wanted something that was going to be accessible and what it means to be accessible is things that can change things that can update that's why it's given the attorney general the authority here and so yes i don't think that we perhaps get to these finer points is that as the court is aware but it's important to consider those finer points in this situation unless there are further questions your honor the government will rust with respect to this idea that it's this is a technical issue i agree this is highly technical it's the definition of cocaine and the categorical analysis is hypertechnical that's how it works with respect to the issue that we're on play there i noted in my opening argument whether it's plain air or de novo review even this is an anomaly if this is novel it doesn't matter you still engage in the categor analysis to determine if montanans definition of the underlying criminal offense distribution of cocaine is broader than the federal definition and again the government's not disputing that the statutory montana's definition there has to be a specific delegation in the government didn't put that in its answer brief so i can't respond authoritatively to that but there is case law that it's got to be just specifically recognized by congress that this agency and again a delegation within the delegation within the agency can override a congressional definition i have less there is anything further we've asked this court to remain and reverse