morning your honour's may please the court i'm assistant federal defender wendy over myer for richard turner and i'll reserve two minutes for rebuttal and i'll watch my time thank you mr turner has one prior felony conviction a nonviolent nevada drug offen which cannot be used to enhance a sentence because it's both overbroad and that's in the visible and the statute we're discussing today is four five three three two one and this is one of if not the broadest nevada drug statu and it's overbroad for several reasons but this court need look no further than the fact that it is entitled to and includes offers offers is a title but offers is not in for b one point two and because offers is less than abating aiding and abetting or conspiracy or attempt which are included in four b one point two and the sentencing commission has specifically left out offers from four b one point two even though they have included offers in the prior drug definition for immigration offenses into l one point two and so the  statute is overbroad for that reason it is also over broad because other acts that it covers there's at least twelve different acts of the statute covers one of which is transport and then it also covers all five in the bad drug schedules which are all overbroad they all cover substances not included in the federal drug schedules and so when the statute is overbroad then we move on to the issue of divisibility and here the government even though it was raised below the government does not offer any argument below or here on appeal that the different acts act this right as the different means of committing this offense are divisible and turner did raise that below specifically as to offers but the government in the sentencing memorandum and its answering brief or in his twenty eight days has not offered any nevada case law that the different theories of liability these various acts are divisible and we know that these are divisible in the battle because of a two thousand and five supreme court case that says a jury need not be unanimous as to the theory of liability in the vatican and that's crawford versus state crawford what crawford involved was the first degree murder statute in the data so a death eligible crime and it's said that under the nevada's first degree murder statute first degree murder could be either felony murder or it could be premeditated murder but the jury need not decide unanimously which one it was as long as they just agreed there was first degree murder so that is for a death case here we're talking about you know a felony drug case where there are at least by my count twenty four different ways of violating the statute and so the jury need not be unanimous as to which of those ways the defendant has violated the statute and again we kno this because of nevada supreme court has affirmed jury instructions for the statute that lists all the various means such as transport selo i'm blanking on some of the other means transport cell exchange barter supplied dispense import even though the state's only theory in that case sales it listed all of the means in the jury instruction home with respect to offer you still maintain your position even in light of the nevada supreme court's case of page versus state because it seems clear that the nevada supreme court read th offer requires reading in the presence of a controlled substance which is also what is required under the federal federal statute song just trying to reconcile your argument with what the nevada supreme court said in that case well offer again even if there is a controlled an actual controlled substance involved an offer is a mere verbal promise you know an offer does not rise to even a conspiracy which requires overt act and offers whether there's a controlled substance involved or not offers are not included in for b one point two that is specifically been left out by the sentencing commission so regardless of whether there has to  actual substance or the promise that there will be a substance an offer is simply not included and that is what the statute covers this is entitle offers or attempts as to any act involving a controlled substance is a very broad statute it could be an offer to transport and as again we know from nevada state law transport requires no link to sales no intenser knowledge for sale no certain quantity they don't have to consider the beginning or end point  defendants in the valley have complained to the supreme court look i just had enough for personal use you're not considering that this was just transport for personal use and then the valid supreme court has affirmed saying transport is just the mere movement of goods from one place to another now that might be enough to get you a conviction in the vatican under the statute but there's not enough to meet four b one point two which requires that link to sales or distribution and so because it's overbroad and because the government has not heard any argument that these acts are divisible we ask this court to remand for re sentencing under a base offense of all of fourteen instead of twenty which nearly doubled his sentence here for briefly possessing and the band and shotgun he got a four year sentence so he's completed nearly two years and some just talk about this i know you've made some arguments regarding the divisibility  one is that you say that the government waived its disability disability argument and so i guess i'm just trying to figure out if we find that they did do we address the issue of disability now because you briefed that the nevada statute is overbroad in more respects and you've been talking about this on appeal than you did at the district court and  so looks like the district court didn't reach the disability disability question and saw i'm just trying to figure out do we have a complete briefing it looks like that's what you all have been doing by twenty eight chain letters that have been just raining in this last days so if we have an incomplete briefing on this issue should we send it back to the district court to decide that divisibility found the statute was not ever broad so it didn't proceed to the visibility argument i also i think the parties could use supplemental briefing if the court would like that as to divisibility but there is also just warner isn't this case a different type of case because i think it's been referred to it seems like it's a different type of case because it dealt with the delegating authority of categories zation of drugs into drugs i think schedules into a pharmacy board and so it's doesn't seem like our typical criminal case from which we determine state law as to the colonel state statute so this case seems a little bit more complicated to me regarding to visibilities so i'm trying to figure out who would be best to decide well i believe the most straightforward issue of divisibility is the is that offers is overbroad and that the various acts re assert indivisible under crawford versus state which is i believe in one of our twenty eight days in james versus state was cited in the sentencing memo below that that alone makes the statute not to qualifying offense luqman it goes to the drug schedules being overbroad which the government doesn't contest that the drug schedules are overbroad the parties do dispute whether the various substances listed in the schedules are divisible and we use look then as the case in the data sets the nevada supreme court case that analyzed this current nevada drug law scheme where the schedules have been delegated to the pharmacy board to list the substances and therefore to find the drug act constitutional specifically the statute constitutional and nevada supreme court said that those schedules are facts they cannot be elements because elements must be set by the legislature how do you a guess address the government's argument them as i think it was the case that they cite does not stand for the proposition  mueller was decided these substances were listed in the criminal acts they were scheduled in the criminal code by the legislature in one thousand nine hundred one that authority was delegated to the pharmacy board and now these substances are listed in the administrative code hundred ministry of regulations and so the defendant in luqman challenge that and whether that was constitutional and for the nevada supreme court to find it constitutional it had to find and it did find that only the elements are in the criminal code in the statute and the substances that are listed are just are merely facts and other words means they don't use the word means but their merit marilee facts thank you thank good morning your honor and appearing on behalf of the government may please the court i'd like to start within about a drug statute and the contention that the statute is overbroad as to the inclusion of offer turner doesn't  anything to back up his argument that offer is nothing more than an offhand remark your honor judge shouldn't all pointed to page for state which in fact talks about the men's wear it requirement that there has to be an actual controlled substance so this is more similar to an attempt crime or something of that sort where the person is ready to engage in the crime and they have a real controlled substance it's just a matter of how they're setting up that crime and in addition turner referenced the guideline we're dealing with here four b one point two as well as the immigration guideline to a one point two we cited in our brief cases where this court has held that for all intents and purposes those two sections are the same one appears in the immigration guideline and one appears  applicable here to the gun cases however turner hasn't cited anything to show why those why this court should undermine its prior case law saying that one includes often the other doesn't but we interpret these essential the same and with respect to transport we do have an about a court authority that talks about places transport in the context of this broad list of verbs but the court treats it as one of many different ways to distribute drugs it's not saying here are some ways that you can sell and distribute and here are some ways that you can do some other activities for personal use we have also we just cited in our most recent twenty eight j letter the case that says that possession is not a lesser included often since this particular nevada statute and so that undermines the argument that there could somehow be this transport for personal use let me ask you about the waiver issue i mean  for this the disability issue you think it was you did this sufficient or what was enough to to preserve this so just to answer there's two different visibility questions one is overbroad as to x and one is over brought us to the controlled substance turner only argued the first one on before the district court he said all the acts transport import export cell that's overbro didn't talk about controlled substance being being overbroad into on appeal so if we're talking about waiver we need to make sure we include what he didn't raise as well and with respect to what was argued in the district court the government argued that they were a categorical match and that's what the court agreed with the government didn't need to reach to visibility because the court agreed and for that matter when all that was challenge was those list of actions and the argument that those were overbroad it doesn't matter whether those are elements or means because what the government's position is is that they're all synonomous ways of distributing drugs and so whether or not under nevada law the state has to prove distribute versus transport versus sell and exchange and so forth or whether or not those are simply factual theories that can be pleaded in the in the conjunctive and listed in the jury instructions and so forth it doesn't matter because either way they are categorically synonymous ways of listing methods of dealing drugs and if you look at the cases we cited where the nevada courts are calling this the sale statute i mean if you even look at there was a case called olson where the defendant challenge the statute is being  it is not wait for vagueness because you have to read where transport in conjunction with the list of verbs that it appears alongside so the nevada courts want to treat these is broad words they're trying to capture any sort of conduct so somebody can't get out of this by saying oh i wasn't selling drugs i was just giving some to my friend or i just happened to be moving them so this is really them about a court saying if you're going to be distributing drugs in any fashion we're going to think of all the synonyms we can think of to capture that conduct and this statute is different than the california law that was dealt with this court talked about in lee and also in those cases they relied specifically on california state cases dating back to old california supreme court cases and the you specifically had the california court saying the word transport in our california statute includes transport for personal use and that's why the government had to concede in those cases though like the california court saying so we can't disagree with that we don't have listed charge specific to each substance and so trying to figure out what what about if there's just one controlled substances is it your position that if a state prosecut chooses to write possession of cocaine for example or position of controlled substance on a charging document that under mathison our case law that allows us to determine whether or not the specific controlled substance is an element i'm just trying to figure out how it works when it's just one so that's correct your honor under mathis you would first look to the state law and we would point the courts of miller which says it's an element and so in that case once you've been advised by the nevada supreme court that it is an element then you could say ok it's divisible as to controlled substance type now we're going to divide it in see what controlled substance it was if it's cocaine it would count under the federal schedules for example if it was one of the ne a drugs that is not federally scheduled then the court could stop there and say this particular conviction under the modified cata coral categorical approach is overbroad but in this case as judge mcgee a pointed out there really wasn't briefing on this matter as to the drug type because that wasn't raised below this court is considering that same question for a nevada law in another case that was argued in august so that's figaro beltran so that matter is already been fully briefed and is wait for that decision to come out or if the court wants to ask the parties for supplemental briefing on that but just being aware that it's already in a consideration by the court citing all the same cases with muller and lukman and citing nevada cases that have come out post l which still show the state charging these multiple counts for different drug types so even though we see some change in the administrative process of how drugs are being scheduled and the luck when he's dealing with the delegation issue we still see posts like him and there is an about a cases where for example if you get charged with one count of cocaine one count of marijuana it's multiple counts and so even though lukman talked about an administrator's question it did not undermine muller which said the two different controlled substances are two different crimes because that is a particular element notably the locking cases never been cited for the proposition that turner citing it for which is to say that those are not it's nothing has come out to undermine  we would ask the court to take that into consideration if it wants to reach to visibility and i also just want to point out turner's argument regarding whether or not personal use transfer for personal use could be considered in nevada if we look at some of the same cases he's relying on in yaba versus state and also in versus state both of those defendants try to argue personal use as a defense and the jury rejected that as a factual defense in i would just suggest to the court that of defendants are out there trying to sa personal use as a defense than the defendants in nevada think that it's not included in the statute what transfer is included is transport along with these types of sales and along with these types of distribution activities i think i've addressed i just want to just one more point turn our sights crawford this case regarding different theories under in about a first degree murder death statute for the broad proposition that you can have multiple theories that the jury doesn't have to agree on first degree murder has nothing to do with a list of ways to distribute drugs and about his drug statute and there's no nevada case law that import such a broad proposition from crawford or even the general proposition that jurors don't have to agree in preliminary factual matters what we have to look at here is whether or not this list of acts is categorically matched because it's a way of distributing drugs not whether or not in nevada there's different crimes in different areas of the law that might look eliminating factual matters or theories or things like that that really have nothing to do with what we're talking about here i think i've answered or responded to the different arguments that were raised by turner unless the court has any questions some indication your honor that the district court is linking or the sentence is influenced by that comment about training and so if you look at tapia to which was this course decision after remained from the supreme court there they looked back at the district court did say and the district court specifically talked a lot about the program quote the five hundred hour drug program and he was saying what do i need to do sentencing wise timing wise to get this for this defendant and so he specifically linked it to that and then there are a handful of other and cited or unpublished decisions that mr turner cited where there were reversals as well and notably in all three of those cases the government conceded error because we had the exact same thing we have a district court that specifically saying here's my goal is to treatment how long do i have to get you here to get that treatment in one case the defense had already served some portion of time and so the court was saying well if i want you there to complete the treatment and what if it takes you a while to get in and how do we get you there and so here we don't have that at all we have a single comment that the court made at the very end of the case where she was reciting the thirty five fifty three a factors as she is required to do and she just mentioned it as essentially a collateral benefit part of what was going on in the sentencing and the most important part of course focus on is the fact that she imposes a special condition of supervised release that turner would attend substance abuse treatment and so she considered it and post it there thank you just very briefly your honors for b one point two and two l one point two are different definitions of a drug offense and the government's referring to this case this court charles case from two thousand and nine that for the purposes of that case found there were no relevant differences but they didn't know there were some differences they just weren't relevant to that case and the difference here is that offer is not included in four b one point two they are not the same definition because nevada covers offers and it can include offers just to transport that nevada supreme court the olson case that the government keeps talking about said that this statute of trafficking are not duplicitous trafficking requires intent to sell and