issue before this court is whether the arizona ribeye statute thirteen thirty four zero eight is indivisible in regards to a schedule of narcotic drugs and its act astray for the reasons that follow the court should find the statute in the visible and should terminate proceedings or in the alternative remand for the petitioner to be able to seek the appropriate relief in applying the matheson analysis as to whether a statute constitutes a predicate offense thirteen thirty four or eight contains language that is outside of the generic language in addition to containing two substances in its narcotic drugs schedule that are not listed in the federal schedule therefore making both the actus re and the drug type of the analysis because the language of the statute does contain seemingly generic language we have to move forward to the divisibility issue first we must determine whether the drug hype or the narcotic drug is an element of the offense as opposed to an alternative means we put forth that it is a means of satisfying the elements of the statute and not necessarily an court pointed out that in dealing with crimes it was more the business of the states than it was that of the federal government why am i pointed this out because because it gave  significant deference to the states to what constitutes elements in order to sustain an actual conviction and what are simply alternative means this court further how'd that while the defendant was entitled to a unanimous jury verdict that the crime was committed the defendant was not entitled to a unanimous jury verdant as to how that crime show that he was committed a categorical offense under the categorical test is that right yes that's correct your honor there is the drug was mentioned in the indictment however that's not sufficient when you look at all the shepherd documents that in and of itself is not sufficient to actually conclusively prove a drug type ok now you indicated that it should be remanded for consideration of discretionary relief or terminated we can't order that the proceeding to be terminated your honor the reason why we request that is because we do believe that he is eligible for adjustment of status under his wife  crime as also held under state v brown stay browned further held that in applying the dixon tast nothing in the actual statute thirty four or eighty eight suggested that the legislature intended to create multiple crimes from the state statute when a single crime was i thought we understand your position are there questions no questions here  and i have no i think we'd like to hear from the government ok let's think if that's a good time to sit down thank you  good morning your honour's one please the court giovanni dimaggio on behalf of the attorney general your honour's as much as my colleague pointed out at the beginning the central issue in this case is whether petitioners guilty plea to sale of cocaine  one of the indictment here was entered under an arizona statute that is divisible by drug type elements meaning that the can the identity of the drug cocaine was an element of the crime and i do want to just pause here before addressing further the visibility which again i see the central issue to address a comment the judge schroeder made earlier the government disagrees that no matter how the court were to come out of the visibility the issue could be decided based on the fact that assuming divisibility you look at the record of conviction there's no  cocaine present or any drug that's on the federal drug schedule the government disagrees with that as the supreme court has instructed and mathis and as this court has acknowledge it's clear that the indictment at page five five five of the administrative record charges in count one the sole count and that indictment specifically other narcotic drugs cocaine and then the plea agreement and the judgment of the court really back to count  one we do have some confusing language in an answer case of the dail but it seems to me about unless you plead to the count you can't go back and look at the count but it seems to me there's several differences considering the the the the cocaine in the indictment because he did not plead to the count in the indictment we just simply pled guilty so no your honor because and are you referring to ruiz the doll which was cited by a to the separate and downstream issue of the application of the modified categorical approach it found that the conviction contained the element that was relevant there notwithstanding the no contest to the count because again when the police refers to a specific count the court may consider the facts alleged in that count so that case if anything supports the government's position both as to divisibility and as to also alluded to mathis must control the court's analysis of this issue and matheson strikes that the court look in three places the first two places fall under what the court deems authoritative state law and they include one a state court decision fully answering the question and two the statute on its face resolves the issue the two examples given by the supreme court there would be under a pretty iffy the term it carries a different sentence very easy answer it's definitely an element versus if there are terms in the statute and that's likewise easy in the negative it's it's not elements the third place to look it's state law doesn't decide the issue would be the record of conviction albeit only to peek at it and solely for the purpose of determining whether the items in the statute are elements of the crime for example where an indictment specifies one term to the exclusion of others no matter which of these three places your honour's look you will find grains of sand to place on the side of the scale in favor of finding divisibility so starting with arizona state court decisions from at least the seventy's to present the arizona courts have shown that they consider drug type to be an element in narcotic drug convictions and i would like to start this point first by before getting to the arizona state laws case law drawing the court's attention to its decision on bank in martinez lopez a two thousand and seventeen case in which this court easily concluded applying mathis that a california drug statute criminalizing transport sale etc of quote any controlled substance specified or classified in a certain statutory drug schedule was the visible by drug type because a california supreme court spoke to the issue in as much as it up held multiple convictions for a single act as it related to multiple drugs and the words i have heroin in my right pocket cocaine in my left that's two convictions under that controlled substance  statute and in doing so this is the important part this court said that the supreme court in california implicitly held that the drug was an element of the statute and the court this court found that the california supreme court decision therefore definitively addressed the divisibility issue in that sense now this implication principle that the court utilized martinez lopez applies here as well the government collects a number of cases and it's brief i won't go through every single one of them that similarly up hold multiple narcotic drug convictions for a single act involving multiple drug types and therefore implicitly show that the arizona narcotic drugs statute is to fill the visible by drug elements a couple of examples include a number of twenty eleven so it was implicitly decided by the court just like it was implicitly decided by the california supreme court your honor when you don't have any cases other than two lower court unpublished arizona cases they come up contrary to you but no california and no arizona supreme court case that specifically address this issue so you are relying on this implicit argument i have two responses to that first those cases those unpublished decisions you it assuming that it would be place a ball on the scale certainly not enough to overcome the bounty of case law that the government sites that is published mind you and secondly that includes a supreme court case from arizona but but which never addressed th issue so you're destroying and i'm we don't even did you ever look at the briefs in those cases too could you represent to us that the issues at least presented to the court in advocacy well no your honor i haven't looked at the briefs there but the issue is not any more raised in those cases than it was in the supreme court decision that this court sitting on bank relied on in martina's lopez which addressed simply whether multiple convictions could be entered under a single statute and implied in doing so concluded yes and that was implicitly addressing the issue of elements and similarly the arizona supreme court to get to your honor's question about whether we have additional authority the arizona supreme court has more directly acknowledged that drug type is an element of arizona's narcotic drugs statute and i point to diaz which is a non bank arizona decision that the government sites in its brief where the court concluded that a jury instruction provided had not omitted a material element being knowledge that the material possessed was quote a narcotic drug where the judge instructed the jury that the elements of possession of a narcotic drug to wit heroin included up the substance must have been heroin which imply implicitly shows if not expressly shows that you consider the identity of the drug in that case heroin to be an element of the crime very briefly how do you get around the jury instructions you know your honor i'm about to run out know if i made at least answer that question the way you get around the jury instructions is that the arizona jury instructions are not to be relied on as the kind of authoritative state law to which mathis refers the reason for that again looking to the arizona supreme court the logan decision of the government sites and its brief where the arizona supreme court on bank clarified that the arizona supreme court no longer issues qualified approvals for any jury instructions and indeed the instructions in arizona include a warning that the instructions as a group have not received any approval from the arizona supreme court thank you and the just to finish this is a good answer well and there's an important backdrop that i'd like to include in that answer your honor and that is that the arizona jury instructions are issued by the arizona state bar a nonprofit organization under the supervision of but not part of the arizona supreme court and you can contrast that with the california jury instructions which are issued by we see things that we have or drawn  distinction not expressly your honor but i'd that is the backdrop to what was going on there ok i think we have your argument ok well for those reasons your honor and for the reason cited in the government's brief we ask that you deny the petition quickly your honour's we do not disagree necessarily with the analysis that the government is making in regards to the drug todd we think that that's actually consistent with our analysis of arizona jurisprudence why am i saying this because in looking at state the strong the arizona court of appeals how actually upheld a conviction where the defendant offered to sell a drug in this case it was a dangerous drug and the government was not even required to produce that drug much less prove the type of drug state we prescot also points  out that while the the defendant has the right to a unanimous jury verdict as to the narcotic drug not necessarily as to what drug that type of drug is and even in the cases where the government has so sustained multiple convictions for different drugs what that indicates to us by looking at the jurisprudence and at the jury instructions is that while the government can't charge multiple offenses the government simply needs to prove that multiple drugs were involved not necessarily the types of drugs and therefore your hono s the government fails to meet its burden of or remove ability in this case and this court should find that the statute is indefensible i think you're right thank you