the only thing in his blood time of his death there was not heroin in his blood all of the evidence points to the fact that my hair and not finish at all and so if it is presumed and we ar which is when he was seen alive and about the same time he last used his cell phone time in your view on the cell phone this is the last call from his cell phone according to the testimony was  or no i mean how i mean if the jury rejects chooses to reject the timeline that you describe and adopts the timeline that he buys drugs at  rights i mean you're really weighing in for the upper decks here to say that this violates the united states constitution well i'm certainly arguing under the lowest sort of analysis under legal protection due process analysis a four hundred grand trafficker oh they're both probably going to get life you know if you kill somebody basically you're going to get life the diff the felony predicates are different i mean that the prior felony conviction got serious drug  are substantially similar to stimulants fifty one pm the record is actually not so clear at page twenty five of the appendix i believe that's where this information is coming from it indicates when mr farver son with active and it says the last call was at three  in not that she hours previously was the time of day and of course rigor mortis doesn't disappear after a minute and so that only means that mr farber died at least two hours before he was found not that he died for psych two hours before be the problem i mean in other words it may not be actually and mr nash said as that this two way to eighteen a point one thousand kentucky definition brings in faith drugs because it includes drugs that a person represents or cells represents to have a certain fact and myth i guess why doesn't that bring in fake interpretation is correct then that means that the federal control of the statute is overbroad as compared to the felony drug offense definition because the same argument that applies to kentucky controls the definition which is that includes analogues which are defined to include with substances with respect to a particular person is represented or intended to have a stimulant depressant and the question i conclude so i found a drug offense is defined as a statute that prohibits conduct relating to narcotic drugs and this court said in great then that the phrase relating to is very broad the question is is the conduct broadly relate to and a controlled substance analogues are defined by their relationship to control as the nd circuit pointed out what has to have this relate relationship i think mr nash's point is that those drugs are overbroad and so we're talking about conduct relating to things that fall outside of the federal statutes well i would argue that sally had drug while telling something offense definition it's about the controlled substances offense definition and the guidelines which is somewhat different he does cite to brown which is an th circuit case and he cites that in his reply brief for the st time and that involves the simulated substances statute the court in brown found very crucial and central to their decision the fact that congress had never outlawed simulated sex and the definition of simulated substance  not necessarily around them and that's because the simulated substances definition is broader than the controlled substance analogue definition and either the kentucky or the federal statute and the brown court found a very cocaine or heroin or something no your honor not according to the deaf not necessarily according to the definition of in iowa and that is because it only requires an implied representation that is because of the nature packaging  a reasonable person would believe in to be a controlled substance and so there's a difference and that is rare requirement there it doesn't require that same representation and i think that it is important to look at that part of brown where they talk about whether or not congress has outlawed simulated substances congress has of course outlawed analogs and has since one thousand nine hundred and six and brown goes through the whole history of the adoption of the felony drug offense definition and says talks suffer and that must be because they are defining stimulated substances d to be broader than controlled substance analog because of course at that time controlled substance analogs were outlawed by congress and so that's the difference between the iowa statute and that kentucky statute issue here of course the court needn't address and have this both because the statute is divisible but also because even if a life sentence were not mandatory the district court was very clear here specially maximum is two hundred and forty months if there was no death resulting assuming there is such resulting the range is twenty years to life with both death resulting and a prior felony conviction the mandatory minimum sentence of life so i think what the judge was saying is if he did not have a prior felony but just had the death resulting and then the range were not mandatory so your honor the guidelines would be the same even after the predicate to not count as a prior felony drug offense under the statute and that's because the guidelines define predicate slightly differently so the relevant if mr hicks and word had argued it would be waived mr hickson did not challenge the guidelines analysis in district court he only challenge the application of a mandatory life sentence and i think it is hard to argue that mr hicks in prior conviction for trafficking pain which is a st degree drug trafficking conviction is not a similar offense but the judge said even if there were a different guideline life yes that's correct that's correct under to do you want point one the guidelines range is life he did not challenge that additional work yes but that's only if he has the prior be drug addict no your honor i don't believe that's correct that is that is only correct if you define the phrase similar offense to be precisely the same as prior felony drug offen and that actually doesn't make all that much sense in the context of the current statutory scheme because of course the predicates under the want of a and b one b are defined differently than the predicate for b one c but it is the during that part of the sentencing hearing the judge said even if we were in a range of not less than twenty years nor more than life a life sentence would be appropriate would be imposed because it's the c years the statutory minimum with the death resulting that's correct your honor i believe that's referring to the twenty to life that is the statutory range if there is a death resulting but there was not a prior best evidence of that your honor is a combination of the indictment and the model jury instruction which is what mathis tells us to look to to determine whether or not a statute is divisible i believe that is supported by kentucky kentucky case law says recently in johnson the supreme court reiterated that the controlled substances statute half of the block further tests with respect to the type of substance involved and this court and roger versus session that you can't have a finding like that you can't find that it passes block berger and also find that the statute visible those are usually inconsistent theories and so i think that that confirms what the unchanging model jury instructions indicate which is that the type of controlled substance is an element of th so it's not a question of interpret in the statute it seems like you're implying and i mean because if you look at the stats you were just talking about you know like certain serious drug offenses or something it would and that prevails that kind of the way this works well i would disagree that there's nothing in the facts for a tax that leads to this conclusion because in fact johnson looked to the statutory caps on questioning whether or not it passed block burger certainly the statute does not set out each drug as its own specific subsection which you often see in the visible statute you'll see one a one b one b one b but of course and that would tell you that it's like divisible but that's not the end of the calculation and there are many divisible statutes that are not sent out into separate sections like that and in fact other controlled substance statutes that this court has found to be divisible i believe both ohio and pennsylvania  law trafficking in multiple controlled substances on the same occasion was one crime not two which is an indication this type of controlled substance is not in fact an element and then the year after judge white's to send johnson on reasonable results but it's not every time i mean one and district judge would probably probably be within his or her discretion to say you know if you sell drugs or kill somebody particular with that now given the damage that's doing to our society you know the default might be you get life unless there's a good reason not to sentence you in particular and judge reads cited some reasons why he thought mr h and was not the exception to maybe a general rule that if you kill somebody dealing fenton now in this time in this opioid crisis you should you should get life and people should know it because among other things mix mr hicks i read the sentencing transcript and he didn't show no remorse whatsoever had nothing to say an allocution after the victim's families i mean why isn't that a fair judgment on the part of the the district j