claimed guilty to this crime of distribution as defined by the manes action that in fact the facts did not allow for the use of a permissible inference and if you look at the shepherd documents that penn tells you that this case has not only raise their issue i'd like you to start with at least our focus so our first argument throughout is that entirely discretionary could listen well inference jury instruction that may never ever issue at a trial but no never ever factor into base that he intended to distribute if the jury and convicts and the only evidence before it was possession of four grams of cocaine based on what basis could that conviction be thrown out i don't pervert the two point eight reference which is seems on point potentially the two point eight reference is that purporting to describe the type of controlled substance offense referenced in the problem of in the guideline to conclude that four point eight grams of cocaine base is not too oh wow a conviction for and ten to distribute is there anything irrational about that not in this i mean the contents now as opposed to two grams of cocaine or two grams of heroin or ten grams of marijuana is cocaine base is that quantity alone rationally  drug distribution and if you don't have a ready answer i would like that to be the second topic addressed in the letter which each of you are going to we will follow up with that in our twenty's and we maintain that the difference here is that unlike in mo kern and some of the other cases that's looking at the elements of the difference which we're going to do that's a statute that creates a modified categorical approach and whatever we say on that will have implications far beyond this case the questions we have been asking you are directly related to the four point eight grams of cocaine base issue which might provide an narrower ground are you following me i think i am  outcome of the two questions we've just ask you asked you to answer for us it is possible that a ruling would emerge that it is no  broader because we simply made assumptions maybe this is just so you want to make sure you understand the questions jessica lynch is posing in what she's identifying as an area of interest on the part of the  s in meaning there is a offense that says you can be guilty of possessing with intent to distribute cocaine base and then imagine which i know there is not imagine there is a case on the books decided by the maim or court and the only evidence in the case to satisfy the element of possession with intent to distribute was that the person possessed four grams of cocaine base and imagine the maine law court upheld that conviction decide its own wall says that's enough you can satisfy the element of possession with intent to distribute under maine law for the mean offense of possession with intent to distribute by merely showing the person possessed is single packet of four grams of cocaine base ok if there were that case on the books and the defendant in this case had pled just as he put it here would he have pointed of a controlled substance that qualifies under the guideline satisfied by the mere possession of a single packet of four grams if that is the main law is it possible for that main offense to qualify as an offense under the guidelines that's what we'd like which you will have a chance to read to questions yes right is there anything helpful you can say to us at this  point i'm happy to answer the court's questions i'm also happy to provide the record of course a question that i wouldn't mind hearing just what your take on these issues influence means you're not required to but you men and no additional evidence is necessary and judge starling individual might that four grams in smaller packets not because they were distributing it but because they are user and just bought it and that's how it comes to that and let me ask the question if typically in a drug possession case if you go to trial as opposed to a plea which is what we have here there would be evidence usually from a d e agent based on his years of experience as to when people have this number of packets is typically not for personal use and that that would be subject to cross examination but it is typical that you aren't going to have other evidence of what the defendant was about in that cryo difference here course it was a week and so he pled he pled to the charge which was i assume and mean that the judge has to make findings based on what the defendant said before he can say yes sure plead guilty is that not correct that's correct so does that make a difference for rule twenty nine motion a i understand the argument for a distinction for a categorical approach i think not and i think under the modified categorical approach tricky because of the issue whether it's the same sam was a sample of the suit but they do talk about them out what is the relationship i don't learn my metric system as well as i should have what is the relationship between one ounce of of distribution of i was trying to get some sense of how big it is i have a sense from the case of how many ounces or how many grams of cocaine powder one would have to have before one could start two kilos of cocaine source of a pretty reasonable to think the person is not just have it for possession of their own purposes and that one could conclude that a series of offense that it is the kind of thing that could qualify as trafficking or possession with intent to distribute i the argument that she made is that when you go to the guideline table any drugs are below a certain starting weight or base sex then you start your table and she it happens that the but under main law which is different on this in the mclaughlin case the law court directly said two things they said for crack cocaine as long as the sample somewhat to your spec because the others at this second thing they say is the legislature made it policy decision that for grams they wanted to punish her that doesn't convert however to track that yes well yeah and that of course doubts a topic that you're both going to be addressing after you've done some more research in your letters to us yes or just curiosity in this sugar packet you just referred to typically how many doses of of controlled substance offense distribution that the guidance is talking about so that was helpful you suggested a gram per serving would be what an individual user might use and one time with respect to cocaine base anything else you need to tell us and i would just add that i suggest to the court that burden of proof may play a role in the decision in this case it may be a narrow way because the government has the burden of showing a guideline done your honor just for example there is no distinguishing in the government's argument a live arrow the facts in front of the court and mohamed as you recall the prosecutor rested on his written submission engage with the court of perhaps there may have been an alternative advocacy i don't want to speak for them but they need to establish the enhancement and i'm suggesting to you that a finding in this case could be that they f do this deal was that there is uncertainty as to whether four grams is a level that like one hundred grams would be enough to satisfy the controlled substance definition and the guideline that uncertainty goes to the benefit of the defendant and it's incumbent on the prosecution to demonstrate that four grams of cocaine base is of a high enough quantity to qualify under federal law so if they need to put forward case law etc to support that and if we have not certainty on that issue your argument is they haven't been met their burden of showing that the offense they identified qualifies that the idea exactly and in the m where we don't look at the facts we look at what is the statutes that it is implicated in and so for instance there's so discuss if you looked and there had been an undercover agent if you looked and the police colloquy and there have been in the clearly that muhammad was convicted this offense of conviction was possession with intent to distribute without a reference to all of this either