offender also relying on that same prior conviction which was time a controlled substance now that conviction was a two thousand and six champagne county conviction for violating seven  using illinois permissive and very generous to the government definition of a cocaine and a lot i'll take that two separate enhancements separately because there are different issues put it there on purpose and it's not as the government terms it spilled in the statute book illinois looked at how it wanted to prosecute cocaine cases and they did not want to have to prove country are using including here in the general assembly said stop trying to argue with us and stop trying to say that you have a positional isomers of your innocence the government attacks our position is saying that we are trying to apply our legal in the supreme court and our position would be that in fact you know we're just trying to read the statute quite plainly says in black and white indeed the government is trying to impose a legal ima nation for a scenario where a defendant in illinois state court walked in with a bad full of additional lies in his cocaine and somehow ended up not guilty there are rational reasons for why illinois put that language in the statute and i just went through that they didn't want to have to prove things they didn't want to have to present these issues to juries or judges and hire experts and get into the deep organic chemistry of every cocaine sample they had there are also rational reasons why congress omitted it from the federal controlled substances act and specifically in some of the legislative history cited it's because congress didn't feel that it was a problem now that's another way of saying congress didn't want people going to jail for something they don't think is a problem this disconnect is overbroad could be solved by the government going to either the general assembly of illinois or going to congress and changing it but this is not the forum for rewriting a statute or somehow introducing some question of fact or fact finding importantly we also want to emphasize that for one c two is indivisible and that really means that the jury instructions specifically and the case law do not honor i don't think that they've they've argued that at all i think their argument that it doesn't exist in the illegal drug trade but it's kind of a a strange argument it's not tested  for the only reason that we don't see that in illinois you don't have to test for it and in federal court they wouldn't test for it because it's not illegal and they're not even prosecuting it there is no argument that it that it's not synthesized in the lab there's no argument that it's just a fairy dust or something that's just a hypothetical substance and it's  marijuana conviction mistakingly i don't know why i didn't go back and check and notice didn't know me referred to the only referred to the to the cocaine conviction now more importantly it's not a waiver because so there's no there's no strategic choice to go and also doubled mr ruth's supervised release time there's absolutely no strategic choice to expose your level drop so there's nothing suggestion that judgment would have gone to one hundred and eight specifically you know he could have imposed a commensurate downward variance just started from a lower position second of all as i noted you know have have evaluated whether the phrase controlled substance in that specific language in the guidelines means a substance regulated on the controlled substances act most recently in a publi the night circuit and the th circuit and it's important to recognize especially the th and the th circuit that the commission has had plenty of opportunity to amend the controlled substance offense definition since those courts decided it as they did and they're not being such an amendment that that should be taken as the commission to something commission acquiescing and how courts are reading  language of the career of center and hand that says controlled substance is defined as an offense under federal or state law so maybe for the federal aspect you look to the controlled substances act assume that's true for purposes of the question but it also says or state law well your honor one thing in in the hudson case this court kind of noted that apply here to the conduct based method as opposed to the generic offense method after the supreme court's recent decision and sure which i subject to the arms critter criminal act the question should be whether the elements the offense that issue necessarily entailed one of the types of conduct described in the statute and here the issue is whether the elements of the state conviction relate situation where as the score as the supreme court is bad legal imagination is applied to the state offense in other words there must be a realistic probability not a theoretical possibility that the state would apply its statute to that falls outside the federal definition and they believe that same analysis should apply when the court is deciding whether the elements of a state conviction necessarily entails one of the types of conduct described in the statute there is no reason to determine a prior conviction doesn't qualify because the state definition list the type of ice and i think doesn't even exist in the illegal drug trade so we believe that this is still instructive way to look at this because for looking whether the elements exactly match you are allowed a small amount of leeway to make sure that you're not including expenses but basically don't exist and we think here also there should be an allowance disagree that sure limited the substantial correspondence test to the generic offenses as opposed to the conduct based method well we think the  generic crime define crime element means you know anyone looking at this from a commonsense standpoint would be scratching his or her head it doesn't make any sense trade oil that the state legislature specifically included them in the statute there was certainly a conscious decision to do that looking at other statutes where they did not include because it's not something that's illegal or that they test for so how can we conclude just based on that affidavit which is the only evidence in the record on this that position don't exist at all in the drug trade his affidavit did not go that far he did not say positional isomers of cocaine did not exist in the drug trade he just said that he has not observed concerned about this i just i think it's important here that the only state legislature did not include isomers in their definition because they thought there was any realistic probability ever of these because if so i've mostly all prosecuted under understand your point but the da affidavit does not go so far to say that position i mean the cocaine did not excess the government has been this is not on the record but the government has been working with additional experts in hopes to present additional evidence in at that time would have been able to see that the th circuit made this decision and we don't believe for that reason it was a clear air for the district court in this case to arrive at a similar solution how do you get around our opinion and tell a stor re saying this is factually different or that was wrongly decided it's true that they left her i this court just herman's that a similar argument by the government which related i must form in indiana in the federal acknowledge in a footnote that it took no position on the scientific merits of our argument and that the court expressively sided not to limit the government's argument ability to present such an argument in future proceedings who we thank you very much thank you substance an optical or geometric isomer of cocaine that illegal under federal law and they're saying well we know that because it doesn't exist in the drug trade according to us but there is nothing in the record of conviction from government raised with regards to analog being divisible from cocaine in section four a one you know i statutes for once you do there's no supreme court opinion squarely on point what we can do that is we look at other separate documents so we have the jury instructions but his appendix page forty six where the state of illinois said that in certain circumstances you're trying to to prove up an analog and you replace the phrase controlled substance with the phrase controlled substance or a controlled substance analog and so right they're saying the jury could find either one it doesn't have to be unanimous on whether it was cocaine or and was there the difference is here is saying that mr root would be innocent of his underlying charges and nothing here is saying that the judge wouldn't be able to look at his prior conviction and say you know what maybe technically it's overbroad but it still looks like you're dealing drugs previously i'm going to vary upwards and indeed in garcia this court said look you're not going to be unaccountable for it and we were reporting on this could be a three thousand five hundred and fifty three a factor and i think that's important to remember here all we're talking about is discretion of the judges and whether you know whether the minimums are in this case maximum will be raised unless the court has any questions i have nothing further all right thank you