of a firearm because he received a sentence and hand meant under the arm career criminal act the afa he was sentenced to more than thirteen years more than he would have been otherwise with this appeal boil down to is whether one of three convictions on which the government seeks to rely qualifies as a violent felony under the aca attempted rape burglary and use or display of a firearm as all explained none of  visible on its face under the supreme court's precedents and massa and according to virginia law in the davis and therefore the question is whether the virginia rape statute can be committed nonviolently and the answer to that question is yes the virginia race statute does not have a gork lee require the use or attempted or threatened use of physical force because it can be submitted where the victim is of a particular age or where the victim falls into a particular category the nd of the convictions on which the government seeks to rely is burglary and here again the virginia burglary statute is indefensible on its face under this under this court's precedent in casting a lewis and under virginia law and it isn't a visible even based on specific intent then again the question is whether the virginia burglary statute categorically involves the use or attempted or threatened use of physical force against another and here again the answer to that question is no because the virginia burglary statutes and be committed with intent to commit robbery or with intent to commit rape robbery is not a violent felony under went in and rape is also not a violent felony but the reason that i just stated the rd conviction on which the government seeks to rely is mr on the appeals conviction for the use or display of a firearm and here the government cannot offense because the government failed to designate the firearm conviction at them thing the government cannot lately rely on the conviction now for the reasons that i've just stated mr on the uphill does not have three just understand your honor so the court can you can remember the case under the mandate rule can remember the case for a limited resounding thing and what we're asking or what i meant to say in terms of our position is now if you would focus on the last argument not the burglary and not the rape but your last argument ok what is to present to the government from  properly raising it in a way that you say they should have this time your whole argument pinches on that right your honor your spec your whole argument respect with i'm sorry i'm maybe i'm not playing this clearly enough your whole argument to respect to this thing where the government can again designate a new felonies the court can remain and and instruct the district court simply to re sentence him without the without the enhancement but as to whether the government when bush as to why that why that doesn't why that is still a problem for the defendants appellate here mr al maliki will and that those issues include the fact that the burden limited sentencing when the concern for no this would be accomplished whether or not the sentencing was the no go or limit your honor if i understand th question correctly there is no the notice is achieved by providing notice in the p s r specifically of the government intends to designate a felony conviction as an act of gratitude here the government didn't just like right it's our government put it yeah you know what i'm saying is that we were worried and hodge about the defendant being afforded notice so the defendant could marshal all the evidence in his favor to show the court why that conviction should not be counted and if we re mandan for a good noble sentencing the government would have an opportunity would it not to and then the pre sentence report and precede on the use of the firearm charge and why wouldn't that satisfy the concern of hides which is to allow the defendant this time to get all his information together your honor there are about that well that's exactly the situation that existed in and hodge so on to do no but a recent thing the government could designate a felony conviction that i did not designated before but but at that point the government would bear the burden to not years later on collateral review there are issues involving the preservation of evidence and the accuracy of resolving acca issues at sentencing as opposed to years later on collateral review so all of those are our reasons why felony as so in that respect this case is on all fours with with hodge county i'm not sure maybe we can go through those reasons because we live in a real world as we all know not an ideal world and we take your point it would have been better to get to meet them st st round but they didn't and now we're looking to see what needs to be done to comply with hotch if we should  said whatever information whatever he can say in response to that and i'm not sure i understand what these other points are you saying that they're what other requirements would need or what would make provide the notice that is required and the fairness that's required under what the piano bar must pacifically designate dictions as predicates and so on and do no go resending thing the government would have to specifically question i wanted to understand cancel your argument with regard to prejudice which check and see if the government attempts to present him a court of appeals conviction that was not from the nine hundred and eighty s so your argument that the intervening couple of years between the original sentencing and the re sentencing is the prejudice been but it's only been a couple what's the difference between and in this case there would have been thirty years passing between the conviction for using or just buying a farm in the commission of a felony and the original sentencing and thirty two or thirty three here how is that incremental couple of years prejudicial well your honor slip on collateral review as compared to where they were if anything there's a right to counsel authentic thing but not on collateral review there's also a need for a certificate of appeal ability on collateral review which obviously is not there at that and think that there are a number of reasons why it becomes prejudicial to the defendant to have to litigate an act predicate here today on collateral review as opposed to doing it on thing when the government bears the  your honor i think that the no concerns still exist of the concern exists in part because of the passage of time and the law of evidence in the accuracy concerned but that's certainly not the only issue that exists and a lot of that again is as i said earlier as the court has that have to a lot of that has to do with the burden borne by the government as opposed to the burden borne by the criminal defendant and the fact that the council certainly would have noticed now if we wished we could even say the burden of proof would be on the government what what what am i missing because i do feel like i'm not you know we're not meeting here what the court held was that the defendant lacked notice p s r of the qualities on which the government thought to rely and therefore couldn't object to them and this court remanded for recess thing of that defendant and requires the court to find that the virginia statute is indefensible and as a result the question then becomes whether the virginia race statute requires the use or attempted or threatened use a violent force and because some of the factual means by which the virginia race that you can be violated include included the fact that the victim is of a certain age or the fact that the victim falls into a specific category as a result the the virginia race actually does not categorically require the use or attempted or threatened use of violent force as to be as to the burglary as i stated the for junior burglary statute is is in divisible even by specific contents and so the question again becomes whether the virginia burglary statute can be committed in a nonviolent manner through and through even even looking at the particular intent to commit a particular crime those are factual meaning those are not elements of the offense and here because the virginia burglary statute can be committed with the factual meanings of intent to commit rape which we keenan could act you up just a little bit on your analysis of the breaking and entering with intent to commit murder rape or robbery and my question to you is why is that visible aren't these different elements of the crime that is intent to commit rape is a different element of the crime from intent to commit robbery and that is a different element of the crime from intent to commit murder why aren't these three separate elements of the crime of statutory burglary under bridge in your code section eighteen to dash ninety your honor they're they're not different element because the elements of virginia statutory burglary under eighteen point two dash ninety l of the elements as relevant here is an intent to commit a particular crime but which crime is being committed under the statute is the actual meaning and that's based on the plain language of the statute it's also based on virginia's model jury instructions which the state clearly that there are two elements one of which is the breaking and entering and one of which is the inten here intent to commit murder intent to commit rape intent to commit robbery irrespective of how they're ginia instructs jury and irrespective of how we have ruled in robbery and great eighteen dollars dash ninety states that the statute cannot be divided into alternative elements and we're not aware of any cases of this court or another court that analyzes the burglary statute concludes that it is divisible based on specific intent ok but trust in that lewis was talking about location in other words where the inside the house and stayed in the house or did you turn the door knob  into the house that's that's clearly talking about how did you go about accomplishing the crowd as opposed to the distinct concepts of race robbery and murder so if we don't agree with lewis analysis controls what's your next best argument your honor our next best argument has to do with the plain language of the statute and the model jury instructions which under this court's and the supreme court's decision in methods which are obviously those are federal cases about divisibility those the model jury instructions in the plain language of the statute  view of the record in trying to do it if we disagree with you as to the visibility of a team to dash ninety with regard to the intent did defendant are there any shepherd approved documents in this record other than the indictment in the virginia case suspicion that when you have when you're dealing with intent that that can never be an element your honor we would not think the position that intent and never be an element but to hear the intent to commit a particular crime is one of the two elements of the statute so i understand your position i just wondered how far this argument you know i would not take the position unanimity would not be required yes your honor that's our position that's similar to what the what the virginia supreme to the particular factual means here looking at the virginia burglary statutes the jury does not need to be in an unanimous as to which of the crimes looked at in the statute the defendant needed to have the intent to commit the jury just needs to be unanimous  commit murder so how could the jury return a verdict saying that he broke and entered with the intent to commit rape you're saying when the indictment specifies the intent to commit murder that he could the jury could come back and he could be it did say that but yes your honor but again the well the categorical approach states that unless unless the statute is divisible we're not supposed to look to those materials so of and ask the collateral were used agent does the appropriate remedy is recent a thing or is it probably is the decision that controls what happened after the order to reset the thing and what information needs to be available to the counsel has he would need for that his client is entitled to on the brief sentencing for in this county that the government does not agree that he's entitled to the correct i think that i'm not sure i understand your question judgments i think the concerns that animate hogged the existence of notice the relative burdens between the defendant and the government on collateral review and the right to counsel all of which cing and there's nothing in the record that indicates that it's invulnerable and so where we were able to make an argument and defended as counsel in this case and is able to argue against the work rate would apply after that so we're saying that because wrongly sort of necessarily says we are able to introduce evidence of that that would end up with exactly as a big range there actually isn't a substantial injurious effect on the defendant sentence for purposes of collateral review and nobody in it at all the court might disagree with us on that but it sort of it operates in two separate  means element distinction discuss that with were just locational and temporal not a specific intent component and i think for purposes of virginia law i think the case is the taylor from the virginia supreme court specific intent in taylor for example the supreme court said that it's not permissible even in dealing with a statutory burglary statute that says or a felony or hasn't had to commit some felony that you can't just charge a felony to name the felony and then prove that to the jury and similarly in manner which dealt with generic burglary statue in virginia which says it's breaking and entering a dwelling in the night time to commit larceny or a felony to virginia court of appeals said you charged larceny but you could prove larceny proved to rape now an intent to rape would be another my understanding of virginia law and i realize who i'm talking to in the context of my understanding of virginia law the indictment would have to charge them at separate counts because the differences in the contents would be required to be proven in that so long as to follow what i understand your argument to be as in this case the indictment charged believe murder that that would be existence ok i have a gun in my backpack it's loaded i break in and then somebody catches me i have broken and entered with the intent to commit murder but i haven't attempted a use of force have i because i haven't pretty clearly break down that and attempt crime can be proved either by a statement or by conduct and so you don't have to have condoms in particular if i have that intent and i told two points i think that i want to make in response the st is that what constitutes an attempted use support here should be defined exclusively by federal law because we're not dealing with an actual virginia attempt crime so we're not doing the same kind of analysis that dozer does where you have to compare the elements of escape attempt crime versus the federal attempt crime our argument is that the coate crime of burglary with intent to commit murder is federal for federal purposes and attempted use of force because breaking and entering the act required for burglary are a paradigmatic blackletter substantial step toward accomplishing the intent to kill which is a specific intent to use deadly force so that's step one and step two is i think the virginia standard on virginia law is an act that accounts of the i believe the commencement of the consummation of the crime so to the extent there was any kind of analysis that requires looking at the virginia standards versus the federal standard i think virginia may be a little bit more restrictive on what constitutes that are you saying you're saying the act to breaking and entering is completing a crime and here are the other elements of federal attempted a specific intent and here the intention to kill which is to use violent force so we're saying that when you cook when repair and intent to use deadly force with an act that by definition constitutes a substantial step towards accomplishing that intent you have committed a federally attempted use of force i don't know if i'm explaining that correctly but i think no i think it's going to i'm not ok i understand i think the difference is that in most cases we're dealing with whether or not a state attempt crime constitutes a federal attempt the burglary statute also requires an intent so i would not say for example burglary generically burglary to commit larceny constitutes an attempted use of force   and to judge keenan's question about the shepherd documents in the record showing this i would note that the defendant actually pled guilty to defense so on page ninety two of the joint appendix it has the defendant guilty plea to the indictment think the the sheffer document that's relevant here a stablish that a defendant could have been convicted of only burglary with this with the content to commit murder right then you do agree there are no other document them then the indictment in the but oh and the other the other point i wanted to make on this is my friend said that we don't look to the indictment when determining whether or not it stretches as well and i disagree slightly in math that justice kagan actually said that by looking to  things like indictment we can determine how state prosecutors charge offenses and where you can charge only one of alternative terms in a statute that's an indication that it's charged as an element as opposed to being charged  becomes a necessary element so there's a line of cases in virginia supreme court saying that the specific it had becomes an element when it's charging when a statute requires that in conjunction with a particular act and then i would also note that this  decision in townsend which was assault with a deadly weapon with a specific intent to kill i believe from north carolina the court looked at specific intent to kill as an element of that offense and because the statute requires  specific intent to kill it necessarily require sort of an attempt at minimum an attempted or threat of force because the person is attempting to use deadly force and then there's some other acts as a football with a deadly weapon that maybe you're answering this question but i'm not sure if you are you know what i'm really did seem to me that you were trying to line up with the earlier case that two and i just wasn't familiar with this in many of our resumed aka cases where we looked at different intelligence as elements of the crime are you answering that question in the state crime ash is the intent required and a federal crime which for our purposes would be an attempted use of force requiring what we think is a specific intent to use force and say come and see me was somewhat different question and that  y well maybe i'm not clear i'm not there but i thought you were saying that there were three separate crimes here because we were losing to commit three separate crimes right is it true so i think the virginia statute divides into as as alternative elements three different specific and so that in the  whatever different kinds of intent and they've divided it but the statute the divisibility analysis along those lines i see no your honor i'm not aware one off the top of my head i would imagine given the way some states structured their clothes code there might be sort of lesser included a greater included version but the s s and so the court may have done banta let me ask follow up one point saying that the act of breaking is enough force to establish the attempted use of force how can opening a door qualify opening a do used as long as the crime the definition of a federal attack that is the specific intent to use force and a substantial step towards accomplishing that use symon granted i'm worried about is  one of us is off base here and my concern with your argument is that perhaps and i don't think this through but perhaps you're equating burglary with the intent to commit murder into an attempted murder and you don't have to show the attempt you have to show the intent to commit murder and if the dependent has the intent to commit murder and took the the step of breaking into the dwelling that you could have burglary with the intent to commit murder irrespective of any attempt to commit murder because that makes sense i think i understand where worth of the honor but i think i just disagree i think that it is in our view it's not required that it be an attempted murder as charged in the state for example but let's let's say the charge was attempted murder right but we're talking about johnson and the use of force in order to qualify for africa and how does it open the door with the key qualif or the attempted use of force or the threatened use supporters and we think those are all independent requirements but something that doesn't actually involve the use of force still must necessarily be a  sufficiently substantial step towards accomplishing that use of force and that constitutes an attempt to do support and then the interesting thing t if in a case in which you had been charged with attempted murder or even federal attempted murder and the substantial step was breaking and entering a vehicle that would be fit to constitute attempted murder so burglary with the intent to kill in virginia is understand your argument thank you mean that the court should not order a recent thing here either either viewing this through the lens of romney or through the lens of promises analysis it's crucial under hodge that the defendant receive receive actual notice of the government intends to designate a violent felony in the bar so that the defendant can challenge it and and to say that the result would be exactly the same is i think incorrect in light of what the years longer than it would have been otherwise unless the court has further questions on the issues i can move on to the burglary issues we obviously disagree with the government at the divisibility of the statute the statute is in our view into visible on its fades and under the virginia model jury instructions and although the government seeks to rely on any case law and does not cannot point to a case in which this quarter virginia court clearly identified a statute as having as being divisible based on different elements  and the government didn't identify any say thought just now that the intent to commit murder although we obviously disagree that the crime that the statute is divisible into that particular crime but even if it were the intent to commit and simply breaking and entering simply breaking and entering into a home with intent to commit murder even if it were a crime does not carry with it that attempted or threatened use of force so we certainly agree  with we certainly disagree with the government on that for i heard my time expired but i'm happy to answer any additional questions on that panel different questions i just want to be sure that you fully but i don't know that for the questioning will help in that regard i mean do you have anything more to offer to us it was frankly in between closer while your colleague was arguing in the senate had in my mind before that caller explored that and we don't have anything further on that point the only additional thing that i would say is that it's obviously been the argument raised by the government in brief that i