recent supreme court decision does not undermine that conclusion that supreme court case the court explicitly affirmed sheppard and taylor and noted that those cases involve situations in which a statute plainly involved language that was beyond the generic definition of burglary yes in this very and in massachusetts oregon is the same way when you look at the definition of building it is in addition to its ordinary meaning building includes and it lists a series of places many first yes the court should reverse cunningham and then as to the question of relief we would contend that the judiciary noticeable facts do not permit that but secondly district court because and there may be an intervener with that but just looking at the cunningham question because in oregon it has been established for fifteen years that cunningham is  king and if you look at the record below the government sentencing memorandum they did not address the modified got a categorical approach they simply submitted seven convictions and if we take the example of conviction structure must accommodate a person it must be a space designed for someone to go into and you know not that not a kiosk not a display outside that has you know storage bin storage that you because i think that even in the case in which this court said we looked at the address what what the court said was we looked at the address this was a jewelry store and a jewelry store is it is a building that if that charging instrument would be sufficient and then if the guilty clique gave you a basis to conclude that you pled guilty to the elements alleged in that charging incident that's correct but if you if the course has before it turns stand and i really can see that the court has said to apply common sense in looking at our contention is that applying that commonsense you don't have enough information to know that address i don't think that i have by saying that given up the argument that what is alleged here because it uses the term building and then which is a statutory defined term that and i and my follow up to that was that i don't think that that is what we have here and that's why i'm so i cannot understand so far the purpose of the things we're making and it's not particularly your fault frankly i think it's the fault of the author of taylor that i knew a common law burglary was it had to be in as well and in the night time it didn't matter if it was a stone castle or sheep herder's wagon if but at least one of them would be a building or structure i don't know why that matters but evidently it does i can't make sense of it without a purpose what is the purpose of this thanks for that purpose will help me decide whether for other than to say your honor and simply from reading taylor as well that they are trying to craft something that i think the majority of the states dash not exactly that the state statutes are and the supreme court didn't do that but they also said it doesn't really matter that it's just not as dangerous as birds were going to do well in the nighttime so i'm asking if you must have thought about this more than me make a coherent coherent purpose so that we can make sense of what a building or structure risk well i think that it's difficult to do that without going back to the opinion itself in which they did talk about the purpose of there's no burglaries broader than that but i believe that's what they say the purpose of including burglary as opposed to larceny and other petty theft in includes i'm tarkan law a vehicle i it is i think not a prosecutor an argument that it would be but i believe that it is clearly a statement of fact under the way oregon's laws are interpreted which is  didn't look to the purpose of of burglary or or what you might want to accomplish they simply looked at the dictionary definition and they said well business is something you do to make money and adapt to simply making a change to accommodate that and they said we've seen nothing that requires it to be permanent that we've seen nothing that requires it to be significant it is and the gaps in core business and that is why i believe that under the oregon law it certainly is state level and that it does get asked to run as alvarez in the sense that if the court is looking for examples i think that there are only five statutes or five cases interpreting doesn't matter because of the plain language division of even two n f l there as in which the court when it begins that significant paragraph about finding example says it requires more than legal imagination applying to the state statute so i language was important they said adapt is just make suitable by means or changes of modifications and businesses ordinarily refers to commercial industrial enterprise we are aware of nothing in the phrasing of the statute that suggest that the legislature intended to offer anything in the ordinary definitions and i think then you would expect that if it was a fax machine or something that just is done for the real estate agents and tempting because they do conduct a business in their car without necessarily inviting customers in that they would charge it that way if however doing this alvarez calls were a further examples under oregon law it is somewhat of a catch twenty two for a defendant with this type of case burglary because there are hundreds of prosecuted at the circuit court level and if it is defendants burden to produce those examples to get to the modified categorical prochoice i would submit pick an opportunity should be given for a defendant to demonstrate under oregon law that it is routinely applied that way and then look at the modified having qwirkle approach  i would contend with facts and all and don't meet taylor because it is in the ninety's unintended trailer truck and it was only temporarily modified and there was no indication that it was you know anything more than  arguably would fit under the modified categorical approach would be the skin first restaurant example which is number two exhibit number two of the government but in fact case the fact that it was a skipper's restaurant does come from the restitution order and then your oregon law a restitution order ordinarily would not be something that was considered by the court as something as an element of a plea and it's through that reason i think we'd wanted to go back to the district court if the court were considering that because i don't think under shocker the court could consider restitution orders that's something the defendant and the state court judge must have understood  with that because if the court would rule against us on cunningham i think it would have to address the a c c a statutory interpretation argument i'd like to hear the balance of my time to mr saidee and i would anticipate that that will probably  may have please the court a fundamental question that needs to be answered in this space is whether the there is a constitutional value a three constitutional doubt regarding the application or extension us but extension to the sequence of the prior convictions because this is a case that's been decided in the first instance because of two supreme court cases from two thousand and four and two thousand and five constitutional doubts that should be avoided if possible that is a direct recchi they had it was he stole a calculator from a wal mart and the two prior convictions had to be separated and poorly and it turned out that nobody noticed that there was a three day overlap because of the three day over lack they weren't prior to park convictions under the statute therefore that was a fact that had never been found by a jury that had never been charged in its grand jury and so it raised all the questions that are lurking underneath the because it's not a new fact it has never been before a jury never been charged and that is what was the sequence were they did they occur on occasions different from one another for example fifty three burglaries or for a conviction from one night's activities protected by the into position of a grand jury between the citizen of the government before that can occur j letter as well as foreign gold coins are from this court applying recidivist principles and those findings as factual elements that have nothing found by a jury that there is no interim president of a petit jury and before that person jury instructions so i don't believe that there isn't necessary distinctions based on that but the principle of of regulars is how it has fallen also in shepherd itself when the more limited question saying that later used as a ingredient of an offense to increase the statutory maximum under those circumstances that would raise the constitutional question is how many there is for a still good law is towards application of violation and because the arm for a criminal act says nothing about how it should be pled how it should be proven that this court as it did in buckland is absolutely free and have mandated by under those circumstances he has not made any admission and therefore he is only been found guilty of a nine twenty do with a maximum of ten years thank you  please the court i'm steven pifer representing the united states i was the attorney for the government in the cunningham case so i take sort of a special interest in in that case and i'd like to spend most of my time arguing why that case should be continued the good law the country not individually but as a whole and apply to them the purpose of the statute according to congress  their business or they have armed guards serve you know nightwatchman or whatever it is that there's a high likelihood of violence as a result of breaking into those when you see one of buildings that's where i have to know the function supplemental authorities judge wilkinson so the decision there is very thorough and deals with the exact issue that mr safety is first is raising here today and that is whether the convictions are occurred on it's skippers seafood and chowder house and even describes what he did he broke out a window pried open the cash register and exempted pry open the safe i think that's a pretty clear winner exhibit three apartments or suffered if you're in a rooming house and you've been in from one room to the next that the a separate burglary but the important thing with governor exhibit number seven is that this is this is something that has been specifically interpreted by the oregon court  appeals in the barker decision which says it has to be big enough to allow humans to enter and move about inside that that is not the same thing as a small storage locker that is a pretty good  do anything to it it's not protected from burglary under oregon law but if i kill some wooden steps and hang an umbrella outside then it is right well i think it would qualify from the beginning because when it was constructed it was a building or structure with intent to commit a crime and then look to the language of oregon revised statutes section one sixty four point two one try which says a person commits the crime of burglary in this if you take too little one approach the litter on approach in people who live in motor homes people who live in recreational vehicles and people who operate their entire business out of a converted bus for example they're not they're not going to be left out if that's that would not apply to them and that's just not a terrible situation to accept considering the fact that one of the purposes of the tailored decision by the supreme court was to give a broader nine common law definition of a burglary and not restrict it so much otherwise you start eliminating more and more state statutes and that would be acceptable thank you