preponderance of the evidence that this weapon was involved in an incident that incurred hours earlier by the same person trap and same address are who's carrying the same imho so it's not exactly a viable argument as far as  have clearly is broader than the guidelines definition and i think the best evidence of that is again the government's decision here not even argue that who are not to argue that these means hears more   th circuit courts of appeal and it was eighteen to nothing but ohio revised code two thousand nine hundred and twenty five thirty eight to categorically qualified as a controlled substance offense for guidelines purposes so instead of pressing that claim which eighteen appellate court judges including your honor judge boggs had rejected on that date appellant chose to go for the heartland of this case and that was the issue of whether the government could link the spelling in an brutal underlying kidnapping for ransom now if he would have been able to break that causal chain regarding the underlying kidnapping for ransom that would've gone way beyond the four level increase that would have gone to the three thousand five hundred and fifty three dollars a factors and that would have really changed the aspect of the case so that's why i'm alone both trial counsel and appellant counsel went after that issue as opposed to the one that eighteen appellate court judge judges are using to get into college judges are wrong be at it was it was late it was i sent yesterday all the bits that my point is that even even moving this is a strickland case so the question is what was the state of the law on the day his brief however even moving forward he that point in fact we cited six cases that said that stood for the opposite proposition that it that it categorically qualified i'm happy to get into the merits of why those cases are correct i don't think that the court need necessarily go there but i'm happy to walk through the statute and explain why you cannot violate this ohio statute by simply possessing drugs you just can't do it if you look at the eight to see start with a no person shall knowingly do any of the following prepare to ship ship transport deliver prepare for distribution or distribute so let's let's take the easy ones st no person shall knowingly distribute well that counts because that's distribution for federal purposes no person shall knowingly prepare for distribution well if you're preparing drugs for distribution your pet your you are possessing those drugs with the intent to distribute them no person shall knowingly prepare for shipment well if you're unless you're shipping the drugs to yourself then you're shipping them to someone else so you're possessing those drugs with the intent to distribute them now if you are happen to be shipping them to yourself now we get into the nd aspect of the statute which talks about the offender knowing or have reasonably caught reasonable cause to believe that the controlled substance is is intended for sale or resale b was correct but the main site was wrong it says that it's reasonable cause to believe only applies to the rd person so if you have reasonable cause to believe that the person you're sure preparing to ship it to for example is going to sell it on you have to get the drugs to that person that's distribution so the only shipping ok no person shall knowingly ship ship that ship also is distributions that we're narrowing it down to transport which is why  malone's council cites to the transport and even his even his hypothetical which he cites know of no high ok so that was ever decided and we would suggest it might be st as holder would indicate that that's not a valid way to look at the case but even even in his hypothetical it doesn't work because if you have a say you have an individual who steals drugs from a drug dealer and transport him home in order to use them well at that point you've got to look at the language that says it is intended at that point the drugs so it's present tense moving forward into the future so at that point the drugs are intended for personal use by this by the thief they're no longer intended for distribution by the drug dealer because he doesn't have the drug anymore so this is you know this is why those eighteen judges who were part of the statute said you can't and this is from karama you cannot violate the statu merits of the case and in fact but st as david said that if you get into the merits in a certificate of appeal ability and this is a quote you're acting support is acted out jurisdiction on the appeal because it's difficult to feel ability to sit in a century just to at the merits to figure out whether you need to brief and argue the case and so and point to make my point crystal clear in a case called bullard which was a reported case from this court in two thousand and nineteen which ended up being the b failing to raise the fact that two thousand nine hundred and twenty five point zero three eight two did not qualify as a controlled substance and this court denied a certificate of appeal ability in that case and now we're not relying on that but we're just saying that that just points up the fact that the certificate of appeal ability cannot be law the case is not binding on this and this is this case is a perfect example once you get into it and you unpack it you realize that math is really doesn't answer the mail at all because all six of these court counsel and bullard said you know it's actually even harder to show effective assistance of appellate counsel and what you know we agree with that because you look at cases like smith versus robbins from the supreme court and smith versus robin said look know fact you should not raise every colorable d claim you should raise your best claims and so that's what malone's counsel did here in the face of these eighteen jurors who had said that this was not a marriage where he claimed he went for the heartland of this case  and the path even if he even if he was even if he was right about that any any guideline i guess our point on prejudice is it comes back to the same we agree that he is right that the standard is what he had gotten to remain and as opposed to what you've got a new sentence he's right about that but the analysis comes back to the same language from the district court when the district court said i would have gone above the statutory max had i been allowed to then she's clearly saying you know i'm not real lying on the guidelines in the senate and this court of this court has already said that that one hundred and twenty one sentence was substantively reasonable molina martinez makes the point that yes why guidelines will normally be enough for a man or normally be enough for re sentencing that's not always the case and some instances a judge will make clear that there senate does not based on the guidelines this is one of those cases i mean her her the district court's language with the unequivocal that she would have that you know he's got a violent history the facts and circumstances of this case the underlying the  underlying kidnapping for ransom is really what distinguishes this case from mormon because in warren there was that there was a there was this fight with warren's brother in the jail but the district court was very clear that it didn't rely on that on that one charge misconduct and so warren was just looking at warren's criminal history well that's not the case here we had this degree just kidnapping for ransom which was dismissed by the ohio s we just going back to the merits for a minute because you know i think it is important to indicate that we absolutely have not cited six cases saying that it categorically qualifies so i'm not quite sure how you can say you can see it on the merits we also have  we also have to cases on direct appeal with this court right now that raise the same claim one of them is named duffy and the other one i but we have as ronald smith may be wrong about the name of the nd case but  we've we've defended those we defended the robinson and right as being correct in those cases which are on direct appeal you know one wants to turn this into a the noble work as to whether this statute qualifies but this is a strictly case this is and so he has to he has to show that his counsel was deficient constitutionally deficient not even acting as counsel for failing to raise a claim that eighteen appellate court judges had had dismissed that had rejected at the time and so we just don't believe he can make that showing even if he could make that showing the district court has demonstrated by by her unequivocal language that this this defendant would have received the same sentence regardless of the guidelines if ninety two to one hundred and fifteen is inadequate and that was the word that she used in adequate a lower guideline range would certainly be an adequate if i mean so there's no this is again this is one of those cases that molina martinez described that does not rely on the guidelines so we believe that he you know we have the better of the argument on both the deficient performance and the prejudice prongs of course he has to show both to to  who is now in germany