decided whether or not prong that the government's putting forward is an aggravated felony for purposes of organ while i don't see how it could be with always the the th circuit you talk about illicit trafficking of a controlled substance now i'm sorry you're talking about illicit trafficking of a controlled substance that provision yes wrong ok so in other words if it's a solicitation that's not hard when they did when they did the bring the mackays a case they did it a modified categorical analysis and that's the only way they got to easiest but let's back up just a moment he was in the statute the state statute in which he was convicted was delivery of marijuana yes marijuana delivery but istra right and that and oregon law that encompasses solicitation right because any have to flip over to the federal side right right and we take a look at what the lies there and the lord in federal court is that there's an aggravated felony illicit trafficking in a controlled substance right yes you know what you winning argument with respect to that provision is used that term as to the u s a trafficking prong or hon precise part your honor i hope so embedded within the definition of delivery is the word attempted embedded within attempted per oregon case law is solicitation well the problem is i don't think on the on the oregon side it's on the federal side right what i'm trying to say your honour's the oregon delivery statute is is not consistent with the federal to the best statute in their lives because oregon punishes solicitation as deliberate and that's over broad ronna compared to the federal statute so i think that's a winning argument on the other side in there that the next thing is if somehow that's mistaken if i'm mistaken on that  and it was interesting in when i went through the sentencing guideline work to see what sentencing should control the visit the sentencing guideline or the statutory maximum snowed in  e briefing the government conceded that the guidelines the oregon guidelines the oregon guidelines control over the maximum sentence for purposes of what's the case where they where the board also states you follow the sentencing guidelines for the particular defendant in order to establish the maximum sentence that he faces and so the board has already addressed this anyway and there's no need for a man to the board  been under federal court but there's a case out there us vs rivera sanchez and non bank decision by this court where they found that the california statute was overbroad because of solicitation it was not present the nd stage of the taylor analysis was to look at the conduct and send it back to the court the lower court to make a determination as to whether the conduct fell within or without the federal statute statute is in the visible you don't review the conduct what you review is the least act that would be consistent with the statute and the least act that would be consistent with the statute in or speaking it seem very similar to what we have here remain to look at the particular facts of the offense ronna would not be consistent with the supreme court math's decision  one is a class b felony if the delivery is for consideration and c b is class c felony if the delivery is for no consideration but here we know that he was charged and convicted of a right is wrong so then the question is whether or not that provision is overbroad with respect to the appears very it's not consistent i mean you're not walking us through the steps so i think it might be productive because i think we have your principle in mind that we hear from the government all right when you save the remaining time good morning may it please the court allison i go representing the attorney general i think it's important to clarify what the court is reviewing here the court's reviewing the board's interpretation of  a phrase that's contained within the i in a that phrase is illicit trafficking in a controlled substance and the board did look at the oregon statute and the board did say that the organ statute was overbroad as you mentioned hoc and the court said that and that's because it includes a solicitation on meant so it also found that the statute was divisible because it has separate offenses and it provides separate penalties for those offenses so i just went through that's exactly right your honor and the board said that because it is divisible it would apply the modified categorical approach and it looked at the conduct and and it looked at specifically the plea agreement the waiver and the waiver in of indictment and it was actually not disputed in this case that got analysis for different purposes to determine whether it was a violation  subject and i think that had to do with commerce or girl different oh no i don't think so because the board then went on after it said that the statute was was divisible and they would apply the categorical approach they looked at the the phrase illicit trafficking of a controlled substance and they said that they defined that it's not to find anywhere and as we know that when there is a phrase that is ambiguous in the is up to the board to give that that phrase definition and if the board's definition is reasonable then the court to st to that definition and what the board said in this case is that illicit trafficking in a controlled substance contains a commercial element and that would be a transfer of a controlled substance for money or other consideration and they looked at this case and the underlying documents told them that cortez delivered marijuana in exchange for some consideration and they found that that was sufficient to fit within the definition of illicit trafficking and a controlled substance i believe the two other court did ask government to address the valencia case but the valencia case looked at only the drug trafficking subset of illicit trafficking a controlled substance that was a criminal case it looked at the definition of a felony underneath the guidelines and it doesn't apply in this case because what we're looking at is whether the oregon statute fit within the illicit trafficking in a controlled substance and the board went through the proper so how does that figure into the analysis but if you apply a categorical unmodified categorical approach that's not the behavior that was penalized in this case that's not what he was convicted of he was convicted of a class b felony the livery of a controlled substance that is marijuana for consideration because it was a class b felony we no wonder the oregon statute that it was delivery for consideration action a section exactly so  even though you say what you've done is you've eliminated solicitation from the federal statute i mean it does i don't think you even one minute i would say that if he had been conveyed you don't consider well we don't consider it in this case because we are applying the modified categorical approach which looks at the particular conduct in this case and the conduct in this case was not solicitation so i'm not necessarily saying it wouldn't fit within the definition what i'm saying is that if somebody solicited for consideration i believe that that would fit within the definition of illicit trafficking of a controlled substance but that has not been decided right but but that is not what we have in this case what we have in this case is looking at the underlying documents and looking at the behavior what we have is actual delivery for consideration and that the board has said falls within its definition of illicit trafficking a can in a controlled substance which they said is the delivery or trafficking of a of a controlled substance which we have for some either money or other considerations and i don't think the facts are at all in dispute and i believe that the board defining a term that is ambiguous under the i here doesn't that also call into question the board's decision here no i don't think and in fact what the court said in that case was i don't think it's relevant to this case because what the court said we must decide whether defend and stay conviction was a felony for purposes of federal sentencing guidelines and in the federal sentencing guidelines and a comment to that to the guideline is defines felony talking about whether it's punishable by a certain amount once you teaches this is that you have to look to the state law the way in which the state determines the sentence so you have counsel was just referring to you have guidelines in oregon and that i don't think that it was the sentence i don't get the sense in this case i believe was ten days incarceration but i don't agree that the borders defining illicit trafficking in a controlled substance in that way they are not considering any type of way the court will not control the controlled substance under the under the control subsidy controlled substance is defined in federal law illicit trafficking and controlled substance as a whole is not and it's a very broad congress put that in and in fact drug a drug trafficking crime is a subset of that clearly indicating that congress was looking at a much broader set of offenses here and they were leaving it up to up to the board to define what what illicit trafficking in a controlled controlled substances can a controlled substance is very clearly defined it's the entire phrase that is not defined and the board said we have the controlled substance under the federal law which is marijuana it's what illicit trafficking and the board said that illicit trafficking contains a commercial element which we have in this case and they did not to find the phrase by reference to any particular sentence they looked at this crime and under this statute he was convicted of a felony and under the eye n a the board said that his felony because it was illicit trafficking a commercial transaction involved in a controlled substance that is an aggravated felony under the i mean thank you very much thank you i'd like to backtrack just a little bit on the delivery on the illicit trafficking front if i may the crime that petition was convicted of illicit trafficking further the facts in this case we want to talk about the facts i think you had nine dollars on him and a half ounce of marijuana that's it and there's no play and delivery to anybody it's implied delivery there's no time set there's no customer it's just not want to talk about the fact because if you look at the plea agreement and the judgment in the case your client in pleadings says quote i possessed marijuana for sale and i delivered the marijuana and the judgment contained your client's to elation that  repeat i possessed marijuana for sale and i delivered marijuana for money i understand your honor but my only point on that is that it's not necessary on the oregon law to convict somebody of consideration and find that this man has not been convicted of a felony and therefore he could not have been convicted of an illicit trafficking offense as far as what i want out of this if i could have it is i'd like to have a case terminated because the notice to