law they didn't just say the judge didn't have to address whether or not there were generic burglaries because they were all if i they affirmatively said they were not in the government's brief in this case they explained that that was not an oversight that was not a mistake was in litigation strategy dictated become a human by main justice and pushed out to u s attorney's office across the  country to make the argument to concede that the burglary statute that involved in trying to vehicles was not generic and to argue that those convictions were still violent phone felons that constitute that made mr wagner an arm for a criminal you know there was no chance an error at fencing you can't claim that  whether or not it was they were violent felonies under because they were a numerated generic burglaries or they were violent felonies under the residual clause now i will say that in  cars airplanes and cars was not generic burglary and was but was burglary excuse me a violent felony under the residual clause so that you know there had there was well established this law that ohio burglaries were broader you weren't generic burglaries because there were much broader than taylor's definition of generic murder but that they counted as so i don't i guess i don't agree that you can affirmatively say they were not based on the residual clause i think if you look at the status of the law at the time it is much more reasonable to find that they were under the residual there were found under the residual clause but i also think that at this point the question is no there's no doubt that for the past decade or more mr wagner has been serving  or the other just exactly what the judge is doing in terms of classifying these convictions and just a summary rejection of the twenty to fifty five or so and after that i understand what you're what you're talking about your honor but i would disagree with him that were judge baker finally so is all to make conclusion is yeah the statutes a little different than into camp but this is a page forty eight of our he says that the as you charge the lesser charge of murder under all ohio law well involves conduct that presents a serious potential risk of physical injury to another and cites the residual clause so and that's exactly that's what the government had to the extent that this these two convictions were classified as a c c a burglaries and argue that the air was harmless because they could be counted under the residual your honor i would i would rephrase it in that i think the government was saying is that he does not have a claim that he was unconstitutional he sentenced as an arm career criminal because although the ohio burglary convictions were not generic burg they still were violent felonies under the residual clause therefore there is no claim and i think that ties in with what this court said in croft's that there isn't a claim to twenty to fifty five  deep convictions remain are violent felonies under the residual clause even if they are violent felonies under the numerated clause because they actually have a claim to twenty dollars to fifty five dollars or you have to show that you were sentence your sentence was imposed in violation of or laws of the united states and as long as the convictions still count as violent own it's under either clause you don't have a client and so i think what the government's car that someone happens to be the government didn't dispute that the case they rely on grier acknowledges that that the high o aggravated burglary and applied to a vehicle if that's not adapted or accommodations are made to accommodate overnight yes just a regular car but if somebody happens to be living in the car and it's a time where they're likely to be present it can be burglary so we're definitely dealing with  car so then the question becomes because the person is living in a car does that enough to take it with instead because obviously the supreme court and taylor said we're not treating break breaking into cars is the same a dwelling on or a building that's the whole reason why taylor came up with generic offenses they wanted to treat breaking into cars differently than breaking into houses and they recognize that some states burglaries they did cover breaking into cars and part of the reason they made this distinction and wanted to limit it and they said this was they were limiting it to buildings or line or a building and instead the supreme court said that reasoning also applies to r v s and vehicles that have obvious changes made to them to show that people can camp in them women and so it is it is a marriage of higher risk but that the defendant can discern that russ but still decides to go ahead and commit the crime not as to the level of dangerous and that's just not the charging documents as to what the defendant was charged with in this case it was clear in each one of these burglary two burglaries in ohio three burglaries in georgia one burglary in virginia actually that is not at issue  but his opinion basically said you still qualify as an a c c i don't i'm not i think you could read it as in even finding that it qualifies as generic burglary because he does things you can't but it's very it's very unclear on that is is less than clear on the subject but so should the united states would be that that says not that ruling in that you need twenty to thirty five years later cannot turn your original sentencing into a johnson playing which is important again in this case there's never been any impression of johnson there on the confessor there was the cases that are johnson but then argued that was harmless and then the th circuit said well the defense needs to be able to respond to the government's harmless  analysis and therefore they can raise map and that makes sense but this is not that case because this isn't a case where there is any johnson air conceded by the government at any stage and so as we know from the arguments we were discussing  we believe that it's i think the sense of knowledge that argument is foreclosed by this court's ruling until so move on to the burglary case and the defense argues that somehow the united states should be factual position about the location of a state boundary to its benefit and then changed its decision when it was later to its benefit this is a case where it was not to the united states benefit to take the position circuit's decision and for that which it found that an intermediary georgia court had found that the person did not need to be present in a vehicle for it to qualify as burglary and of the georgia statute the ne ations like tents that are not buildings or structures close quote the government specifically said it was not generic burglar but then went on and asked judge baker to find that it was still a violent felony only under the residual in the point of the case is trying to decide whether the case was the sentence is based on the residual law the timing isn't the issue the issue is if you are trying to show that you have a johnson claim you have to show that the you are an act of you were found to be aca based on the residual there is absolutely no doubt that judge baker found mr wagner acca under the residual clause he didn't make a harmless error filing finding judge cites because nobody asked him to find harmless error the government said there is no error they didn't say hey the statutes the visible so trying to change it we get cut off at the needs and the same should apply with the georgia statute the version of the statute that mr wagner was convicted of didn't require it was a different version of the statute