osorio and i represent the petitioner in this case mister the primary issue of this case your honour's is whether virginia eighteen point two two four eight d is to visible to the specific identity of the chemical substance whether those chemical substances are mere means of committing the offense our position is fairly simple your honour's the elements are what the statute says it is and the statute when referring to the nature and type of substances specifically says a controlled substance classified in schedule  schedule two i st want to point out that the government in this case has the burden your honor and i think that the point has been ignored successively by both the immigration court and the board of immigration appeals in this case that is the government's burden to show by clear and convincing evidence a standard that the supreme court has held to be near beyond a reasonable doubt in that case your honor the facts the record of this case do not lend support to the decisions that have taken place thus far turning to the divisibility analysis mathis specifically in structures to st look at the statute as i've already indicated your honor we believe the statute supports our position also the differentiation within the different subsections of the statute that point to virginia having identified sentencing alternatives also as indicated in mathis lynn support that those different subsections then be the specific elements of the offense and in those subsections they specifically lay out this example of a deadly weapon right then they say ok the different means of deadly weapons would be a gun a bat a blade at weapon so then we would say that a gun is a type of deadly weapon just like here we would say schedule one or schedule two is a type of controlled identity of the gun would then be a glock nine millimeter that's a specific identity and here i think zero and support that when you're talking about the nature specially given that zero is discussing the mens rea or context nature means whether it's illicit we're not nature means whether it's controlled or not right here i'm talking about the language from cyprus and india and your honor our position is that you still have to prove means any case and i think that there's a lot of confusion about that  yes do we think that the stay we still have to prove that it's one of these drugs yes we don't doubt that it would have to prove that it's something that falls within that list of classification but that's true in any type of case if i was having to prove possession of  a g context you only have to show the specific identity of the guy in order to establish the interstate nexus that's how we typically establish a nexus is by showing where the gun was manufactured but absent that i don't think there's any requirement in the context that you would deny the specific gun so if you see for example of a video with a person holding a gun that  video holding the gun even without the specific identity of the gun could be sufficient or not twenty four c i'm not sure what i'm not maybe that doesn't matter here but i'm not sure that premise is correct so i'm actually i'm happy to go to twenty two you honor because i'm very familiar with both the virginia firearm definition because obviously we meet the definition a lot so virginia has found firearm to occlude a number of different types of things that the federal government does not classify and so virginia statute as being definitions that meet the regina firearm but we would all agree that that as an aggravated felony firearm offense would not qualify under federal circumstances so i think again if we're going to compare firearms to drugs why would we treat drugs differently when we would all agree that my example would not qualify as an aggregate really firearms i mean there's a number of different statutes where we get exhaustive list in them including the iowa statute in  honor and that statute specifically referred to structures buildings or an air water or land vehicle and so that's an exhaustive list of things that could end up completing that offense but the supreme court said no those are means of committing the offense and therefore overbroad so you know our position again is if you've got a statue in the i would case before the supreme court where they list all the different ways of completing the offense why would drugs be treated in a different fashion ok let me ask you a question if i could on how because you obviously have a lot of experience in this area how do you count for the fact that the d i m a handled the analysis of controlled substance of fence using the modified categorical approach but then when it talked about the drug trafficking offense it used the categorical approach how do you account for the fact it's almost like two different people heard the case and applied the analysis how do you account for that is is this a problem in our in our case well one i have a hard time accounting for a lot of finding him in aggregate felon by convicted of you know by using the overarching counted work approach without dividing it into the modified but i think at the very least even if this court were to decide that everybody in this case agrees that the virginia controlled substance list is over brought to the federal definition so at the very least you know it would be impossible for him to have the mens rea to complete the federal drug trafficking portion and it could not you know there's no argument given that this is under an accommodation that there's a commercial element here and that this is some type of illicit trafficking offense so given that we think at the very least this court should find that it's not an aggravated felony and we may and i understand it the modified on the specific identity is more of a complicated issue especially in light of you know the circuit courts have gone all over the place on this one thing when i look at sort of the different circuit court decisions that go against us is this double jeopardy analysis and there's this you know can i put you know can i have a bag of heroin in one pocket in a bag of cocaine in the other and can i be charged with two separate offenses i understand the attraction to try to engage in a double jeopardy analysis here but here's the problem they're trying to use elements in a different way that we would think of them in sort of the categorical approach nobody would say again going back to the i different structures if i broke into judge keenan's house and then i broke into judge king and oh you know even those both of those would be different means of completing defense everybody would agree that i could be charged with two counts so i think that there's some real confusion here about how to deal was a biology major in undergrad like this was sort of interest to me but i got a threshold question before we get into sort of the various structures of organic chemistry if the argument was not raised on a al to the b i a which i think is correct and was only raised in a motion to reconsider the b a a set as we're not to consider this isomer argument because it wasn't raised on appeal it was only raised in a motion for reconsideration are we now precluded from reviewing that isomer argument in essence de novo right the a reasonably found that the failure to raise  appeal waved the argument may be forfeited the argument without worrying about the distinction between those two they found it forfeited and how do we all look at it a new i mean this was a district court decision and it wasn't raised before the district court the district court rejected your argument and then you filed a motion to reconsider before the district court raising a brand new argument not yet made before right no but i mean i don't think we would uniformly agree that that argument is waived because it wasn't raised in a timely manner so why is that not also true for the isomer argument i understand that's not true for the other arguments but i just just talking about that one argument into the briefing at all until the motion to reconsider i believe that mr stevens briefly mentioned it in in his original appeal brief before the word but i would say that i agree with your honor that it was not fully fleshed out to the extent that it was in until our motion to reconsider and so your argument is we can consider it because it's part of the broader argument that these are not you know controlled substance offenses right and there's no question that this court has didn't review of whether a statute meets the definition of an aggravated but only where like it was exhausted before the administrative agency right we don't have to know of a review where you failed to exhaust i agree but i understand your argument for watt light comes in right and in essence maybe this is part of my problem as well and i'll ask it and you can either tell me you don't know or tell me how i'm supposed to figure this does it exist at all and then b is it anything more than sort of you know some chemist sort of imagination does it actually exist so my understanding your honor and again i have no background in this but after reading the literature and reading the articles that we've signed it too and sort of are explanation of the isomer position is that it does exist and also that does exist with respect to cocaine that is my under standing and what and based on what i mean this is sort of why i'm worried about it not being raised below is because i'd be you know i don't know the not every substance is susceptible to becoming to having a positional isomer and so what i'm trying to figure out is why do we believe cocaine does and that seems like a particularly troubling thing for us to do as appellate court judges given that there was no sort of development of that issue because we get a term where there's a reasonable probability that it would be prosecuted as a positional isomer if there is no such thing as a positional isomer for cocaine obviously there's no reasonable probability and just quickly before my time runs out your honor i would say that again if we're looking at sort of statutory interpretation in construction here your court would still have to decide on the isomers issue given that it's in the statute so if you have to determine you know if you're saying that it's it's we adopt a modified approach and that then we get to go refer to all the specific schedules that are never referenced in our actual statute or conviction but we go to the schedules in the isomers are listed in those different sections so it is simple you have to decide what level of specificity of  been too much time on it because just this last question just to make sure it the government's position is given that it was not raised in the initial appeal the isomer argument was found waived by the board and therefore we it was not exhausted where wasn't raised in the initial appeal we're not relying solely on exhaustion though we also have an argument to the extent that that goes to statutory interpretation but certainly if there's any question understand right and i wouldn't want to i wouldn't want to speculate on any of that but but as far as the exhaustion question certainly as far as it was not exhausted as a factual matter so all of those underlying  reason for my question other than just secure it just curiosity because if we agree with the position that the modified categorical approach resolves the issue then can we think that i think that the two separate ways that the case was analyzed i think it's because of two separate require mintz so one requirement is that  for both grounds remove ability the controlled substance violation and aggravated felony those would both would require as an element of federally controlled substance but for the aggravated felony ground there's also going to be specific acts that are required and that's distribution in this case and so i think that the reason why one was analyzed under the modified categorical approach and the other one was it was st starting with the controlled substance requirement yes i agree with that and so that oh can we get to that or do we have to send that back the aggravated felony analysis center no the aggravated felony analysis does not need to be sent back because that  is it's a separate requirement to separate from the drug which the statute state statute is divisible by drug type so then you can apply the modified categorical approach but in the aggravated felony analysis there's no need to to break up  the statute between the different acts because any of them would qualify as distribution for aggravated felony purposes so the question of what ever could trolled substance but  controlled substance we got to you we got to do divide even in the aggravated felony i think point is even aggravated felony contacts the controlled substance definition is overbroad so we've got to look at the modified categor for the controlled substance piece but then the b s a says yeah i mean in essence the implication is modified categorical for drug but categorical for the act that is the distribution that's correct  did well i think that it's this sorry your honor let me refer back to the decision and are you referring to the merits decision or the motion ok so it goes from yes the modified categorical approach on the substance and then it moves to analyzing whether it's properly categorized as an aggravated felony ok so and i think you know on seventy it talks yeah corresponds categorically talk about modified it all right so i think that it i agree your honor but i think that because of the federally controlled substances common to both with you on the modified categorical analysis as the i j a and you seem to be advocating here do we have to send it back under you know we've our courts articulated a case law pretty strongly now that because it's because the analysis on the controlled substance aspect is common to both grounds of remove ability i don't think i think they remain and for the board to explicitly state that it was including its analysis on the drug into into its aggravated felony analysis i think that that would be i think that that would be futile i don't think that the court in atlanta differs a different version of that question if we find that he's removable under the controlled substance subsection do we even need to address whether it's an aggravated felony but i mean it seems to me those are two alternative grounds for him to be removable the removal will because it's a controlled substance offender or because he's an aggravated felon if we find he's a controlled substance offender under the modified categorical can we just not address the alternative grounds for holding him removable well your hon so that the drug would the board's drug analysis would carry over to the aggravated felony context and and like and like i said your honor i believe but if if i may go back to back to the controlled substance and the statute being divisible by drug i think that they're starting with the structure of the statute that st off suggests that the specific drug is an element of the crime statute this is the section under which the petitioner was convicted is limited to schedule one into drugs that's an exhaustive list it's not an illustrative list and so that suggests that there that the drugs are alternative elements and not means this is also similar to the pennsylvania statute there was an issue in a rd circuit decision called henderson which is cited in our brief and that's that state statute also referred to schedule one and two substances under pennsylvania law and they're the rd circuit found that it was defensible by directly and then state case law also confirms that the specific substance is is an element of the crime but the type there's  prove present to the statute or it goes on to say that a defendant who intentionally possesses a controlled substance aware of its nature and character as such there's the risk of incurring whatever punishment the general assembly has prescribed for the possession of and seem to be it's its schedule one schedule two if this divisible suman is the visible is there but not to the point where everything on the list becomes a separate element of but i notice a different crimes well your honor i think that it does it's so the statute specifies schedule one dollar and two dollars and then it's further it's divisible based on the drugs in the schedule so each drug would be an element there instance like to any extent on how the and they are doing i'm sorry are you relying on how the indictments read in virginia are you familiar with how they read and your honor the indictment in this case does specify cocaine are you right that are you aware generally of how indictments read with regard to controlled substance offenses under eighteen today as generally speaking i am no i am familiar with the one in this case and with  indictment has to include the drug are you aware that i'm i'm not aware i'm not at the top of my head aware of that but i would i would like to i would like to unpublished virginia court of appeals decision called howard that we discuss in our brief and there are the defendant possessed one capsule containing two separate substances and he was charged and convicted with it includes both heroin and cocaine i can be charged with two separate counts of the violation and that only works if the specific drug element otherwise they would state crime to the federal aggravated felony that both require a knowledge of the illicit nature of the substance both require certain acts could be distribution and both require a federally controlled substance so when it comes to for drug crime to be an aggravated felony and one would be illicit traffic trafficking which would require commercial dealing and that's not what we have here on the other one is if it's punishable as a felony under the controlled substances act and so this time the minimum conduct in this type in this offense is possession with intent to give away and that has been found to be punishable as a felony under the c s a there's a case called us view washington w so that's the that's the aggravated felony route that was utilized in this case i see that my time is almost over there i'm sorry i'm sorry guidelines also in our case the petitioner took a plea so there were no specific jury instructions in this case however if i do think that they are informative in the way that they are laid out if you look at the jury instructions their use of parentheses and brackets  parentheses are utilized under specific information that's supposed to be put in there the name of the person that was killed the street where a dui took place in this case eight the actual identity of the chemical substance but when you look at the brackets the brackets i'm referring to the elements in when you look at this subsection your honor it's going to want to schedule two brackets but then the particular name of the substance is in parentheses and that seems to be uniform throughout the jury model instructions so even though i don't think that they're necessarily binding i do think that they lend to the to our conclusion that those must not be elements that must be various means of committing an offense and as your honor correctly pointed out you know it is the normal practice in jr and i'm sorry i can't put my finger on it right now but there's case law in virginia that says the purpose of the indictment is to provide notice and the defendant has to know what he's charged with and to defend it cannot be put discovery that you can ask for a bill of particulars to an indictment that the indictment most or cite the drug it recites both the schedule and it recites the substance and if there's some late breaking case law since i left the rich a new supreme court please tell me an exhaustive list of controlled substances you know i know that divisibility wasn't the main issue but they looked him a little early which had similar jury instructions kansas had to fill in the blank jury instructions that we have and the virginia case and they found that because the list of controlled substances was overbroad with respect to kansas and a comparison to the federal statutes they found that that drogue charge i realize again it was drug paraphernalia was overbroad so i think if we're saying that in this section because we've if and i agree that you know the virginia case law says that we have to put a person on notice if i'm charging somebody with murdering somebody i would put that individual's name in the indictment but that individual's name is not an element of the offense the person you know the fact that they're a human being our indictment yes but those facts do not elevate them to being elements that must necessarily be found beyond reasonable doubt and i think that again the court has to look very hard obviously at the logic of the decisions in the different sister circuit