ashley all for appellant the united states and i'll watch the clock but i will try to reserve two minutes of my time there is an unusual amount of organic chemistry involved in this illegal reentry prosecution but the court does not need to delve deeply into it in order to reverse the order of dismissing the information for two reasons st the california definition of methamphetamine is not so clearly over broad on its face that it believes defend declarations are wrong but it's but procedurally what happened here was that the district court said i'm the i don't need to get to that stuff lorenzo is out there i'm going to rely on it and i think given the district court view the other side could have justifiably said we don't need to put on and the evidence if in fact we're going to find and i don't know that we are but if in fact it's important to find that there exists no geometric i of methamphetamine i'd really prefer to do it after somebody makes an evidentiary determination that it doesn't exist simply because it will it will cut across cases rather than just find it because of default on the part of the defendant so if that issue is important my question is shouldn't we remained to the district court so we can conduct an evidentiary no your honor and i have two answers to why that isn't the st is as a as a practical know the mr mr game boa is going to be in jail for a long time no matter what no matter what happens in his case so what why shouldn't we get this at some point we need to have somebody make a factual determination about whether your position is right i don't think the three of us can take judicial notice of the fact that a geometric isomer of methamphetamine doesn't exist where we're lawyers not chemists and i have i  don't make we look at a fractional determination i guess the quote the correct question would be whether anybody's been prosecuted in california for possession distribution whatever  i must say argument that they don't exist but judge ward last a different question was anybody ever been prosecuted for it no you even if they weren't there is there is no evidence in california case law that anybody has ever been prosecuted there is and so the  reason i mean the overbred argument st and you're right the typically the way this goes is if the statute isn't clear on its face and i think it's important to note that our position is this one isn't this isn't the kind of statute liking brazil where you can clearly say that the burglary statute  a building over broadly it's a matter of common sense you can say that in and of itself creates a reasonable probability this is just not the kind of statute you look at the statute and it's very unclear whether or not this has any practical import in the real world and so it would be a defendant's burden to come forward with evidence of a reasonable probability to satisfied when it's over us and there is in this case no evidence into france there's no evidence because there are no california cases that reflect that anybody has ever been would you respond to my concern that the reason that the defendants maybe they were totally incapable of rain course of japhet it but the reason that they didn't have any incentive to do that in this case is the district judge was relying on lorenzo  this is it ninety two f nd nine hundred and thirty seven left open the possibility of a different far actual record in the original published opinion the panel recognized that the government had essentially abandoned geometric isomer arguments but it's and it's said that there is no evidence we don't i don't need to make findings on this issue because lorenzo tells me the statute overbroad and given that why would the defendants have any incentive to introduce any evidence on the issue let me lay out the quality of just a little more clearly so at  these findings because the defendant hasn't submitted any declaration and i'm concerned that she hasn't had time to do that and to the court said i would like you to do that and offered the defendant this is it g e r thirty for as much time as she needed to find experts and submit a declaration and so at that point in time the court was not saying i feel bound by the ends of the court was saying i'm curious about this factual issue the government seems right please bring me a declaration two and a half months later the defendant submitted a but you're still asking us to make a finding by default a finding that the district court didn't make not quite your honor i i think the district court did make sufficient findings on what the unrebutted evidence here shows and i think time and question suggests it may have may or may not be pertinent to our resolving the appeal but if it is don't we have to have somebody making factual findings given that there is so many of these cases out there i mean i we read i read i'm sure we all read this recent seven circuit opinion kind of it's one way we could handle this that as a matter of law we can't say where they are because it's not that it's in the statute so it's never broad doesn't apply the other way we could do it is given the large i mean it's and a novel procedure but given that this affects many many cases throughout the th circuit and every panel has so far normally do but i can imagine the supreme court thinking in this situation that it's a ridiculous thing to do my argument is that ms gets to your point as well is that the question president in this case is what should the district court have done on true with some evidence right there you can just barely deny something you have to come forward contrary evidence there was no contrary evidence here and to go slightly outside of the record there's been no contrary evidence in any case and so it would not have been an abuse of discretion a judge right to say i'm not going to have a hearing because there's no contrary evidence but it runs contrary to notions of what the legislature does with a statute that to think that  some particular drugs it will carve those out and specify it includes either more or less than that i would certainly say that you're on to the respect of those particular drugs that would give me pause that reflects legislative care that those drugs either should have fewer or more d isomers included before everything else they're just subject to a general definition of that's efficient and all sorts of things are subject to general definitions that as here are context dependent it doesn't mean the california legislator assumed that every single drug subject to the general definition isomers they weren't making any assumptions about organic chemistry they were just trying to be efficient and in determining in general what kind of isomers could or couldn't be included and so i would not read that to say that the california legislature was exercising any there's no legislative history suggesting that they meant to accept them so they facially covered them in a sort of a waste bucket sort of way so there facially within the statute if they don't exist that might help your per se establishes a realistic probability of overbroad application if it's not that clear then it's defendant's burden to come forward with evidence that it is applied this way to see that's where you're losing me let me tell you what let's statute reaches more broadly than a federal one and so to the extent that it's not clear absent some external organic chemical facts then that does not satisfy grisel and as a result it was defended that had to come forward with as you said an expert to say these do exist in which case this would be a different case or to find case law as was law said in which case it would also be to fit a different case it's not clear on the face of the statute because this is in the context in which any reasonable reader can just look at it say oh certainly this is going to include isomers that the federal law does not i see them well over my time right writer to sit down well i think i want it down for now later on so the district court judge allowed your client to withdraw the plea that's correct and once withdrawing the play then decided the issue over breath and whether and then dismissed the case ok and so that's the way we have it here is if we vacate the dismissal already reversed the dismissal and send it back what's to prevent the government from simply amending this information not even an indictment to include this and your client gets deported and what the hell are we doing your problem is she's got a felony conviction your client has a felony conviction can't get around a felony conviction because it's done did six years in prison for it and now all the government has to do is plead that your client has a felony conviction and gets that's correct yeah that's correct i mean this is not about whether my client can stay in the country or not this is whether that removal order can be used as a basis for criminal punishment and hearsay and not because of  know whether it's deliberate or not deliberate it doesn't matter to me the question is do we have to find out or do we not have to your honor i would i think this court should follow the th circuit and say that that also said your honor those you know that issue is not pertinent here when the plain language chosen by the indiana legislature dictates that the indiana statute is categorically broader than the federal deficit you the nd didn't exist you would say the statute is unconscious of to is over broad i would say it's overbroad under this court's precedent which has been adopted by the vastness we have a precedent that deals with a possibility that deals with it alternative that physically and it is impossible i don't know that this court this court i mean certainly sept th circuit has this court has not dealt with the possibility not a physical impossibility but there have been cases your honor in which there is no proof of prosecution i mean that's what you know and that's and that's where i'm closer to your side of the i don't think if the statute is facially overbroad and there exists at least a theoretical possibility of prosecution i don't think you have to come in and show that you were prosecuted with that's what our case law says the real question is what happens when there exists no theoretical possibility of prosecution because the nd thing doesn't exist  case law doesn't deal with that does it your honor again i don't think this court has confronted that question of course the th circuit has of course as i would i would make clear that we definitely dispute the government's argument on the factual record i mean this is a situation where we have experts switching sides saying at st saying no geometrical isomers exist and then being retained by the government and changing their opinion so i think the science is not nearly as clear w record in this case because and during this case and going back to a point that was made earlier lorenzo was presidential and said california methamphetamine definition is overbroad period judge wright did not have authority to disregard that i mean that was the plain language of a binding precedent and he recognized the i'll go on track with you there so the government the government raised the issue they preserved it now we're up on appeal so what do we do so your hon have differing results based on differing standards as to whether or not it can form a predicate crime or not and i don't think that's a good thing for circuit well i  their sentences the government hadn't per put any evidence in at the trial court they were challenging their sentences on appeal because they were under overbroad statute and the government said hey we've got this evidence here and the th circuit said you should have put it at the trial court where we were not going to take notice of declarations filed in other cases so the the very different than you are then your procedural situation where they showed up at the trial court and said judge the statutes not overbroad we can show that it can't possibly be applied in an overbroad fashion well your honor i would just i would just slightly disagree with the th circuit posture it was actually on plane air preview because it hadn't been challenged right and even then legislature chose and then worried and then it said and decide they chose to ignore all isomers and your declarations only talk about geometric so i have no idea what the core of their th circuit holding is but i just know it was a different i think that is the i think the practical challenges of having this going up and down in every case for example what if this court were to remain and and there's another case where a defendant doesn't challenge the evidence and then it settled in what precedent dictates and is you know this is this is the the president says when there is a substance and this is what every circuit has done when there is a substance that's not on there that's the and we don't need to delve into this this messy factual issue the