interpreted its own law that interpretation is binding and all other courts are bound by it and the board of immigration appeals and the immigration judge both stated in have in fact gone to people versus abby you don't know and they didn't do so they didn't do so if they had looked to you dawn they would have found or ascertained that in fact the statute at hand the colorado criminal statute eight hundred eighty four zero five was in fact in divisible and this court this very court in the cabin found that let me ask you this in both the colorado king or the underlying state court case colorado case and the tenth circuit case the focus was on the means by which you can violate the statute whether you had possession whether you were distributing whether you were using the controlled substance that's not the issue here the issue here is the identification of the substance itself so couldn't it be non divisible for purposes of how you can buy a late it but divisible when you're talking about which schedule applies and in fact doesn't it have to be divisible as to schedules because the panel each changes based on the schedule that is a great question but i think you and that's  that is the overriding mantra but it doesn't matter whether it's schedule or the identification because that only goes to punishment and the identify  indivisible i'm sad isn't the supreme court told us that if the punishment is dictated by it's an element well the supreme court has said that the colorado supreme court they because they also said you have to look at the colorado what the state courts it is not it is it is in the divisible i would disagree that i mean my opinion would be what you are asking i would agree with that but that's not what colorado says colorado's backed off of that happened the way it has but it didn't back off at the time of the nineteen ninety eight conviction and that was pre apprentice but even when colorado was saying that it wasn't an element they were saying it was a non element that had to be tried to a jury and be found beyond a reasonable doubt that sounds an awful lot like an element to me well that was posted prime to you though that's why it was it was determined but in terms of it is at the time of the conviction means well i'm not i mean madison also tells us not to necessarily look at the labels that brian courts were putting on them at the time but to look at the substance and so i'm not asking you whether you wan call it an element or not or when state court called it an element i'm asking didn't yury have to find what what the substance was in the man of the steps and as essentially and whether you want to call it an element or not they had to make that fine right i'm sorry i'm looking at the clock as i wanted to reserve five minutes for rebuttal i still stand by i know it sounds like a little bit like a broken record but i do believe and assert that again in colorado at the time that statute was indivisible and if you look at make him an ab you don't notwithstanding the issue you raised i would it i'm going to reserve ok thank you please the court my name is tony part in turn represent the government in this matter i'll just briefly comment a steam council's arguments with respect to federalism the a pretty case and mathis which go to print day is actually instructive on this and says that just because a state court has held a certain holding on a interpretation of a statute in that state it's that's not infallible it's not permanent in fact the case involved just that a overturning a you jersey supreme court interpretation of its own statute i think the answer here as cut played by some of the questions and discussion in the fish ners opening is answered by printing and echoed by mathis more recently and that is that if it's a different punishment then we're talking elements regardless of what the statute might say about means regardless of what a state court decision might say in terms of calling it means versus element so i think this court can rest comfortably affirming the decision of the agency based on its read of  mathis pending this court's questions the government would submit on its briefs no questions  i would like to address the issue again if if judge moritz could restate that the last question about the jury the jury i didn't quite answer that fully i think it was the same question i think judge mchugh asked about doesn't it have to be doesn't the jury have to decide the amount and the nature of the of the substance isn't that a fact question for the jury and doesn't matter tell us that that is indicative that it is an element strongly indicative after a print a yes and no after a printing the colorado courts didn't state that the jury has to determine the elements but again it doesn't answer the over arching question is number one nine hundred ninety eight conviction  courts did not adhere to the principle that the identification of the drug was necessarily to beef was not required to be found by the jury it was a means and not an element even if you look at the jury instructions from one thousand nine hundred ninety eight period every the jury instructions required the jury to find the specific substance that the defendant had had possessed or used or distributed and they had to find that beyond a reasonable doubt how is that not consistent with the print whether you call it an element or you call it a non element that needs to be proved beyond a reasonable doubt well one should not necessarily look at the jury instructions of that time because again it was pre apprentice it was one thousand nine hundred eight friend it was two thousand and the jury instructions are only one can only look at the jury instructions if there is no colorado law at that issue and it's not dispositive if the colorado supreme court says that the substance or the different elements are substances that's one thing but that wasn't the case they were all in the dis categorical approach as opposed to a modified cata court because it was invisible and therefore the jury instructions cannot be reviewed for this issue because it is into visible because is is can not determine or overrule what the colorado supreme court has determined has found and that is under michigan  people versus johnson it is pure federalism and this court also in lieu ham in june of this year found that criminal trespass was a single offense contrary to what the board of immigration appeals that they incorrectly determined that criminal trespass was disciplined crime again mckibben lou hamer all these cases spoke to and they mckibben actually is a controlled substance case and they do discuss and defer to abuja dong so i think this case is has been erroneous lee decided both by the board of and the immigration judge and moreover when the be a said and the immigration judge that there was no colorado state law in the record that was a misnomer and there was a lot of law in notwithstanding that prior counsel never submitted it or argued colorado law which was there like abby and don't it review and they would have found that under the categorical approach it was in fact and is in fact divisible and that's that was obviously not to novo review because  and for that reason it also should have been a three member panel and this case should be reversed and remanded to the agency thank you thank you