good morning and welcome to the th circuit also judge paez and i would like to welcome judge had from florida sitting by designation and he sits with us periodically by designations that we appreciate his service the st case united states versus herrera has been remanded by joint motion of the parties st case for argument then this morning will be united states versus davis morning idaho delivery of us of a controlled substance is extraordinarily broad a person can be convicted of idaho delivery of methamphetamine on an accomplice liability theory merely for soliciting the delivery of methamphetamine and idaho defendant also has been convicted of aiding and abetting delivery and has had his conviction upheld on appeal in state the forever where he was not present at the deal had never arranged for the sale of any drugs and where his only role in the delivery offense was to accompany his brother to idaho in his car knowing his brother had stashed drugs in a void on the passenger side neither of these examples necessarily requires proof that a defendant manufactured delivered or possessed with intent to manufacture or deliver methamphetamine i'd start with solicitation to flesh out what i mean by that and i'd like to begin with an example if i text my friend column and i say hey column steve won some drugs and you should sell them to him and i deliver for you and then does the sale i am guilty of idaho delivery on an accomplice liability theory even if i had no skin in the game but my conduct in that example did not constitute manufacturing did not constitute distribution and did not constitute possession with intent to distribute and the conduct that if at issue in state be forever likewise does not necessarily entail those activities and schuller itself clarifies an additional reason why idaho delivery on an accomplice liability theory is overbroad social or directs the court to examine the ordinary language definition of manufacturing delivery and possession with intent that is the approach at this point in idaho the definition you can be guilty of aiding and abetting a delivery if you aid and abet the attempted delivery of a drug that is how idaho defines delivery as including attempted delivery and that is how the idaho during instructions to find delivery as including attempted delivery and so in idaho a person can be guilty of aiding and abetting that attempt there is no possession with intent to distribute there is no manufacturing in that example and nor is their distribution as the cow ashima categor interpret that term and as shool are requires us to interpret that term that conduct is not at issue in that offense and so for all of those reasons accomplice liability united is is overbroad and therefore because accompli liability is implicit in idaho delivery of methamphetamine and the jury is not required to be unanimous as to which theory it finds the defendant guilty of so too is idaho delivery of methamphetamine i'd also like t eight j letter requires this court to find that at the time of mr davis's conviction i did host definition of methamphetamine was overbroad and it requires this court to sell find even on principles of the government except and here's why lopez aguilar says that if the application of a statute express text in a non generic manner is not a and this is the phrase  in possibility then that statute will be overbroad full stop when it may i just ask you that goes a course to the merits of potential merits of this claim i have trouble understanding why this wasn't waived and then what was argued below as accomplice liability it's argued that you know meet the armed career criminal act but the composition of the isomers was nowhere mentioned and i don't see that in any way related to the arguments that were made i agree that it is it is not that argument was not made the ice cream argument was never raised but claims are not arguments need to be preserved and i would direct the court appeal i mean here we have something completely different chemical composition being argued which has nothing to do with what was argue the law and so i think i would agree if if what i was asking this court to do was a sensually delve into the science of the ice from argument and asking this court essentially to say we've got to start looking at all of these complicated issues of fact and i get to raise that for the st time on appeal absolutely if that was the issue i think that i'd be hard pressed  also retained jurisdiction of the appeal and it laid out two different ways that the appeal could be resolved st it said you know defendant makes great points under grisel absolutely brazil could dispose of this appeal as a matter of law but secondly it said in addition the government has raised some issues about whether you know there's a realistic possibility that the statute could be applied in a non generic manner so we're not going to decide those two possibilities instead in order to avoid deciding which of those two possibilities apply i would expect we're going to remain and and see if there are facts to support the existence of geometric isomers if there are then we can issue a more minimal ruling boat was decided before  or lopez has now decided to the question that can both reserved on in my favor and therefore because because aguilar lopez says the way we do grisel is it means what it says if it's a logical possibility that it could be applied to get the facts then if it's overbroad facially it's overbroad and and that's why you can reach that claim and for a month reverse on that basis well i will reserve the rest of my time the government has not conceded that idaho is overbroad idaho just says isomers and if geometric isomers do not exist it would be a logical impossibility that idaho could apply its statute to something that does not exist again this is a an argument that was not raised before the district court the government had no chance to put forth any evidence regarding whether those isomers exist and it is waived by no defend relies upon the walton case i think there's a key distinction between the walton case in this case and walton involved pure questions of law that the government would suffer no prejudice on appeal by addressing isn't it just subject to play in your review  yes your honor so it's not waived correct your order for it subject to cleaner view and it's the government's position that it is not plain because it requires resolution of a factual dispute that was not developed turning to idaho accomplished lightly do at least respond counsel's argument that well no we don't really need a remain and for a factual determination as a matter of law this court could make a and it is not possible to determine if i do who is overbroad on its face without resolution of a factual issue and that is whether geometric isomers exist and that is due to how the idaho statute reads it just says isomers and if there is only one type of isomer of at them fed to me in idaho on its face it is not overbroad it refers to the can take additional notice of the in your hon this issue should be resolved in the case and we should have an answer on whether these isomers do exist turning to the accomplice liability issue defendant solicitation in and of itself that is different from idaho law idaho law has a separate statute where in kohut solicitation needs to be charged as one hundred and eighty two thousand and one that is not what is at issue in this case defendant's argument then conflates king version of solicitation with idaho accomplice liability and under a idaho accomplice liability it does use the word solicit and then it goes on to mention that the crime essentially needs to be completed and that is exactly what federal law prescribes as well it doesn't federal law does not use the term solicit it uses the term commands induces procures but we're really talking about the same thing and that's asking someone else to commit a crime but to be held accountable as an accomplice the crime has to be completed and in the context of delivery of a controlled substance idaho does indicate that it can be accomplished through the actual constructive or attempted transfer of a controlled substance but that is exactly how title twenty one defines delivery as well and that's title twenty one and under idaho separate solicitation statute which is the government what does the state need to prove up to get a conviction under idaho's solicitation statute that another person solicited the crime with the intent that it be committed and that's it solicitation that is not what mr davis was convicted under he was convicted of delivery of a controlled substance be generic versions of distribution possession with intent or manufacturing it simply needs to involve that type of conduct and defense relat aspect correct your honor if that's the case do we have to go through the analysis we just talked about the last few minutes no your honor the the fundamental question changes after sure and it changes in the government's favor the idaho statute simply needs to involve the conduct of delivery of a controlled substances act or really to correct your honor and it's the government's position that it absolutely does relate to with case the defense draws a distinction between participation under idaho law and the affirmative act requirement under federal law and rosemon honor there is no distinction between that to the facts and for a involved mr for a owning the vehicle and either creating this secret compartment where charges could be hidden or knowing that it was there and then providing his car to his brother or methamphetamine was stored they traveled to gether from california to idaho and then tried to deliver the at them fed him into an undercover officer i think the pope had a little different version of the fact we can we even consider the fact yes your honor you can consider the facts to the extent that it can shed light on an idaho accomplice liability i think it's important to recognize the posture of the case though and it was a review of sufficiency of the evidence  l reasonable inferences had to be drawn in favor of the jury's decision in that case was which was to convict him the the primary case mr pope relies on and that respects is  tomorrow and it doesn't have similar facts in that be the defendant there was traveling with an individual that was being smuggled into the country with knowledge of that however there key distinctions between the ultimate the no case and the for a case namely is that under all tomorrow the immigration judge made the decision and put his findings of fact on the record and explicitly noted her involvement was limited to her knowledge and her presence and that was it there was nothing else about her providing the car about the car being registered to her infor era we have those facts we have the fact that it was his car that had a secret compartment that it was registered to him and that when he was caught in idaho he gave a story about coming up to idaho to visit his family his brother gave a story about coming up to idaho alone to get the drugs from somebody named el gato and the jury apparently rejected both of those versions and found that they were travelling to idaho to deliver controlled substances so for ever it demonstrates that ferraro was a participant in the offense the th circuit has used that word participant in participate to describe accomplice liability there is no distinction between participation  quote from the schuler case the word involving identifies conduct and the parties agree that quote involved means necessarily require so what should our censure lar says we apply we employ the categor al approach to evaluate whether a state offense is a generic mat is a match for a serious drug offense it does it indoors is a categorical approach and it says that what you do is you compare the state offense with with the conduct described by many faction but not the elements you know correct so you do not look to elements you do not look to the federal elements we don't care element elements you know but you compare elements to generic conduct and you look at the least serious offense encompassed by the state crime and then you see does that least serious and finance necessarily require the conduct of manufacturing distributing or possession with inte relate to the distribution of drugs so listening does not necessarily require that you distribute drugs and that is the question the question is not whether it relates to shool or does not endorse the idea that simply needs to relate to a controlled substance and some sort of a generic way and or you know sort of in coate undefined way and that's on on pages start pages five and start pages six of it does not say it simply has to relate it is a necessarily requires any possible defendant who commits it to commit that federal conduct with undue a modified approach might like to go approach there is you would only do it conduct was so the the state offense and you imagine the least serious conduct still categorical land in the state offense for idaho for example what is the least serious conduct you could commit to to commit idaho delivery of methamphetamine it is so less of it fictional  you have no case for some indication that that's actually case it would be prosecuted by the state not it depends so when you're looking at the state statute you were just doing an ordinary categorical approach on the state statute you were looking in you seeing is it expressly overbroad if it's expressly overbroad than under grisel you do not need a specific example if on the other hand it is not expressly overbroad then under grisel you do need to find a case that is correct that's on the state side of things it's the same that we've always applied where we're different now under shool are is on the federal side of things what we do is we looked we use the cow ashima categorical approach that is what this opinion refers to and we look to what is the using the ordinary conception of many factual distributing and possession with intent using ordinary language analysis of what those words mean that is what did it in its own case you say does that lease serious conduct that falls  state crime does it necessarily entail manufacturing distributing or possession with intent and in this case because solicitation is the least serious conduct that falls under idaho delivery it does not necessarily  that activity thank you thank you thank you both for the arguments thank you for coming from idaho and also from spokane case just argued united states versus davis is submitted