case mr morris vera came to united states as a basically what we now are referring to was a dreamer he started having trouble as a juvenile in two thousand he enjoyed two property eventually as a result of that plea ultimately in two thousand and one mr moore varies deported and their subsequent three entries into the united states from mexico and he's suffered two federal illegal reentry convictions in two thousand and seven and again in two thousand i believe and twelve both resulted in long thousand conviction for arson is amounts to an aggravated felony his his deportation in two thousand and one was as a result of a aggravated felon status aggravated felony is is the court is aware is a crime of violence as defined by the federal statute so the question here is whether or not the four fifty one that is the california p section four fifty one that is broken down into subcategories or sub sections it is considered i would consider the visible statute in that it has multiple  whether in the divisibility analysis were there elements of the crime versus means of committing a crime well the elements of the crime in for fifty one days of burning of your own personal property or other sections of four fifty one well for fifty one burning your own personal property requires another factual proof which is that for the purpose of in their lies lies a factual distinction but for fifty one that we're talking about the visibility now right what's to visit well there are burning we're not looking at c we're looking at the your client was convicted of four fifty one d how is that how does that contain separate crimes well one is intentional burning of personal property with intent others other property the property of others ultimately in this particular situation the record of conviction is that mr o'mara very intraday no contest plea to a amended information that he had an intent to fraud anyone exactly how do you square that with the restitution sentence well there is a clearly there was an indication and he followed through with paying of the probability or that there was an injury to another person structure forest land or property it's a fair inference however at issue i believe is the whether or not for fifty one the stand alone is a crime of violence or not that would amount to a finding of aggravated felony arson to upon another person's property is not a crime of violence arson of your that it doesn't it's not there's not an element to use or effort to commit a violent act on someone else or on somebody else pretty but that's not required is it just i mean a crime of violence doesn't necessarily have to hurt another person you could you have to run the risk of well the federal definition under eighteen u s c section sixteen  so why is burning your own property a crime of violence under sixteen a if the use of physical force was not against the person or property of another the morning o states nor any under sixteen a burning the property of another is a crime of violence that's the generic definition burning your own property would not be a crime of violence ok we've got that straight x the statu to commit as a violation of section four fifty one d against your own property you also have to have the added man intent to defraud under the scamps or or b which is burning and inhabited structure and the reason that it's not a lesser included is that added mens rea intent to defraud that's what makes the statute divisible if the prosecution is proceeding on the theory that you're burning the property of another the jury does not need to find that intent to defraud if the prosecution is proceeding on the alternative theory is a separate crime in essence that you're burning your own property the jury would have to find that you had the intent to defraud that's what makes the statu as well the defendant hasn't raised this argument in his opening brief and has as we've heard here today is can write this i guess i you know i'm more concerned this is as you know we're having to interpret these criminal statutes state statutes all over the ninth circuit under this new approach that the supreme court has articulated and i can't speak for everybody but my personal concern is that we get it right so whether or not this is mine ok and i think it is i think the california court angle's b has made it clear that that extra mens read the intensity of fraud is what makes this statute divisible between the two alternatives whether you're burning the think that sort of soon to end to the first the first alternative though the second lady means observe and the first alternative is you're committing arson against a property of another the second  he says arson and properties a felony and for purposes of this paragraph arson or property does not include one burning are causing to be burned his or her own personal property unless and then it goes on to talk about intent to defraud or arson is to harm somebody else's property it wouldn't be men's room as to the harm to the property so this is what the this covers that if you're burning your own property because into somebody else's property that we don't know necessarily what the factual basis of the two thousand plea was but should it have been that his client pled to burning his own property that's not a current wouldn't necessarily be a crime of violence and so on your point is that you don't look at the factual basis you look at the statute if you plug guilty to a statute that defines a crime of violence then the subsequent affairs which occurred here job is to look at those documents and decide do these documents sufficiently narrow the basis for the guilty plea to the generic offense which is that he burned the property and tell me what the fortune of the documents and conviction show that he was burning somebody else's property well i think that the two most important points are that the court ordered restitution to the motel and also that the court ordered a protective order at the court also identified victims and cabrera which the court made it made a point of saying that it was important that a victim had been identified the court's not going to be ordering restitution if the defendant had burned his own property of course not going to be ordering a protective order and telling  stay away from that property if he in fact owns that property so those are the two pieces of the conviction records that show that the defendant in fact waited guilty they're burning the property of another not his own not let me as you question if if for fifty one defines a crime of violence it doesn't always define not violence or know it because if he commits assume ok for fifty one d defines a crime of violence ok under a modified critter categorical approach to fine by discharge right are you with me yes ok if a man goes in a california state court in says i burn my laundry in an effort to scare people or whatever not a crime of violence i pled to it do we then hold him accountable for pleading to a crime which defines  court made it made a point of saying the fact that a victim had been identified made it there was sufficient evidence that the government had proved he pleaded guilty to bring the property of another we have that here too we have victims identified we have the motel identified the employees of the motel there you're saying is that the duncans of convictions visually establish the bridge his own personal property to cause injury to another person or that section four fifty one is divisible it criminalizes ours into any structure for a son or property that is not the defendant's personal property and two arson to the defendant's own personal property separate categories of arson and burning the property of another and burning one's own property and or the limited circumstances set forth and for if you do wendy now i'm quoting that's how you argued that this statute is divisible than the problem i have with that argument is we can't look at section four fifty one as a hall and decide whether or not that's to visible we have to look at the crime of conviction which is section four fifty has chosen to criminalize setting fire to your own property under these circumstances right and i think the reason that it's not a lesser included of four fifty one b is it does it has talks about inhabited structures and having a property right and and indeed is talking that very own property and if if it was only burning your own property i think it would be a lesser included of an inhabited structure but because it includes that separate intensive defraud el divisible if we get past that then you're absolutely correct there is no evidence of an intensive fraud but we have to get past that the visibility analysis first to get to the modified categorical approach to be even be able to look at those conviction records that's right know i happen to think you don't get past the visibility but i also don't think it's categorically a crime of violence and i agree that that's not a categorical because you could be convicted of burning your own california case it allows individuals to take advantage of proffer plea arrangements without admitting factual bases for the entry of plea so in the event of th case the court made a restitution of it and say were it was part of the arrangement or the resolution of the matter and the final thought i wanted to would just point out to the last thing i want to point out is that the record of conviction is not clear as to what actually occurred resulting in a burning and we could stand here and speculate all day but there is nothing in the record of conviction which would suggest exactly what happened and are final my final point is that the four fifty one d is not therefore for fifty