the california health and safety code constitutes a illicit trafficking offense under the first wing of lopez i would submit that it is not based under the narrow  polling excuse me under the broad holding of lopez a state offense will only be a felony punishable under the under the controlled substances act if a person writes conduct punishable as a felony under the controlled substances act and are first under our first wing the question is whether the statute encompasses activity that rises to the level of an illicit trafficking or as the court also phrases thomas i think the key in this case and it also goes to the second wing as to whether it's a felony under the c s a is the ments riya of the state statute as opposed to the federal statute you know under the state statute you simply the key is that you simply have to knowingly rant lease or to any other specified act of a specified space to purchase persons felony or misdemeanor which is different than the federal statute now what makes it different from the only our scuse me what takes it out of the trafficking element is i think  first of all the problem of knowing under california law i think we have to go back to the california statute in order to understand what they mean by knowing and under section seven of the california penal code you have a descending  level of c enter it's not a full range of the c n tower under california penal code or under the california criminal law but it includes many definitions statutorily among those is knowing and simply to knowingly commit an offense as described in the statute you simply have to have knowledge of the fact in other words the alfalfa bale smells funny or if you don't even have to add that the alfalfa vale is there in the house or the barn you don't need to know that it's unlawful so in other words you can violate the statute without any knowledge of the unlawful actual unlawfulness of the activity you simply need to be aware of the activity now whether that rises to the level of commerce also dovetails into what kind of activities are involved you can rent lease mortgage you could be any one of those range of persons involved which would not necessarily put you in the stream of commerce you could be for example a mortgage e of the property and simply be aware that there's some activity on it you'd be in that case isolated from any kind of stream of commerce i submit to come combination of the and the range of activity of the states to actually requires knowingly the federal statute requires knowingly and intentionally correct one does intentionally under the federal statute offense the intent i would submit is specific intent and gather it's criminal intent that would be intent to commit the act as right as if you will under the statute without any excuse or justification or other defense and that in that case you would actually have to know that the activity was unlawful you would have to essentially you would be essentially a participant in the activity by your very knowledge that absent element knowing and as the court points out knowing and intentional knowledge under that statute i would submit that under that wing of the law as test there is not a thing that you have a higher level of c enter straight all together actually into a federal statute as opposed to the state statute can hear there's a factual scenario that you think would qualify or fall under knowingly but would not fall would not fall under i would say that the level of burden of proof would be different just when you tell me a story you make up the facts but i'm trying to figure out ok what are we really talking about here why what kind of if we've got the conviction now what kind of facts might have matched up with your client's conviction that wouldn't qualify as a violation of the federal statute and under the first catch of the california statute you could have a for example a mortgage he or a owner even of a barn for example he rents it out he's aware that people are bringing stuff in and out of the place he could be aware of that activity traffic could be aware of even seeing lab equipment but if you didn't know what that was then i would say he's probably in violation of the statute but he hasn't he doesn't have the requisite criminal intent whereas on the other hand if i yes i see that's levick with and i know what it is and that's fine with me and he may or may not be getting any kind of compensation he doesn't have to under the statute but that knowledge criminal intent that yes this is a unlawful act i'm quite aware of what the radi is it's a purpose to commit the crime and that the discrepancy in the two statutes was so really no consequence to other elements that i think that are there mentioned in the brief and i see i'm about to run out of time here but just briefly the firearm element i think it's set out in  brief there's a literal incorporation of the firearm into the statute under the definitional element now they incorporate one twenty four c not one twenty four seat in congress but of the specific i think lopez court goes to great lengths to describe what it is that congress can do irrational things and also points out that reasonably congress knows what it's doing when it does what it does in an acting legislation by incorporating the entire statute it appears that he's incorporated the firearm element as well which is otherwise would appear to be somewhat less analogous to an enhancement however goes to both the crime of violence and the and the controlled substance of ense and then finally the issue of whether sentencing is trumped by now or controlled by lopez it's problematic in this case because it's the reverse we have a state offense which is a misdemeanor being considered whether it's a felony for aggravated felony purposes and now with that in mind i think it's at least an issue at this point still whether or not something that's punishable as a misdemeanor at state level can be transformed into a federal felony under the analysis and lopez as opposed to the other where other case where lopez was actually sent to prison for five years on he are sentenced to five years on his state of is aggravated felony in terms of whether it is a conviction there's no dispute that her ninety seven connection is and is a conviction for immigration purposes the question is actually whether there's any impact whether or not it's punishable as a federal felony the board only addressed that issue and did not reach the issue of whether or not there was a trafficking element so in terms of this case we have to take a look at whether it's punishable as a federal  trafficking crime and that is what the supreme court stated and what has been what the square has also recognized but could you address the possible distinction between the state requirement that the activity be knowingly and the federal requirement there would be knowingly and intentionally yes are there really is no distinction and if we take a look at this plain language of the state statute as well as case law that is annotated dealing that language my understanding of the california statute is that it's the question under the california statute if i know that someone is using my barn for an illegal purpose whether i specifically intend that distribution and that in the absence of any knowledge that there was that illegal activity and that's the space was being used for that they had allowed use of that space for that purpose i understand  to further their purpose of illegal drug use or storage or sale and it is the same without knowing anything about my purpose beyond the fact that i simply know that they're doing at and that they have that purpose your honor whether there it would be sufficient that there's no trafficking requirement of the defendant i'm talking about purpose not tragic that i'm talking about purpose yes your honor the defendant doesn't have to have that the purpose of actually engaging in the trafficking aspect of it it's something that he and the people renting the barn from have that purpose and that the defendant recognize that that is the purpose that is being served and in the federal law couldn't the action that also require similarly that the defendant not be intending to engage in any kind of traffic in that matter that the defendant you know that they're offering the space for the news of her i scenario i've struggled with this one and i'll start by noting that in law school we learn the various levels of venezuela and knowingly and intentionally or on different lines of the charge but you apply the particular factual scenario sometimes it's hard to figure out what could really be the difference and that's why i posed the question to vicious counsel in a pose the question to you and of christ an area suppose i've got space which i give over to my brothers my nephew and you just need some space i got space a got a bar or something he can use that space and i come to suspect what he's doing in that space to the point of i could be tagged for knowing that he is using that space to store  marijuana that he's he's selling to other people so i could be tagged for knowingly making available space to him which from his perspective was for the purpose of storing the drugs that are going to be traffic could i be tagged for intentionally making that space available to him for that purpose is that a scenario that the bridges are or fits between these two statues you're on i don't believe it does in the hypothetical you're on a proposal i don't believe that want to myself maybe it's the suspicion rise to the level that everybody's got to believe that i probably understood what was going on or at least a jury could be persuaded that even though i protest my innocence i had to close my eyes real tight  knowingly and what is required in the federal statute and the state statute here knowingly as defined under the california penal code doesn't require that you know that you're actually committing a crime but that's different from knowing that somebody else is committing a crime and by acting with the intent and knowledge that you are looking to providing space to somebody who's committing unlawful activity you are then subject to conviction both under the federal statu it allows for not only the knowledge of it but that the it provides emphasis at least in terms of what they defined it under united states versus two men as at ninety nine forty one prescribed activity was present that the owner knew of the activity and allow that activity to continue so in terms of that this court has not really created a distinction between the knowledge and intent required under the federal  knowing or the knowledge requirement in the california statute so in that regard there really isn't a distinction between at the question here really is whether it is there would be punishable under the federal statute and in this regard when referring to this court's interpretation of the federal statute and when comparing it to the state requirement then they're similar there's no real distinction here  and would be punishable under the controlled substances act as a result than petitioners conviction constitute a drug trafficking crime moreover the petitioners arguments that there is some sort of firearms requirement lax marrons there is no such requirement the statute clearly states that in order to be an aggravated felony that involves illicit trafficking in a controlled substance including a drug trafficking crime as  petitioners arguments have no merit should the court determined however that it does not fall within the drug trafficking definition then the court would have to then remain simply to determine whether there's a trafficking element because in california conviction or knowingly engaging in the activity is broader the federal definition of knowingly and intentionally i don't think  they were bound by that particular language used by the legislature and secondly on the gun issue it's not completely irrational to include a gun a fancy use a gun you get a person more severe punishment as