her argument next in case seventeen seven six five united states versus steal it and case number seventeen seven six six united states versus sims miss ross mr ch has always focused on dwellings by the time congress adopted the current version of the armed career criminal act in one thousand nine hundred six the vast majority of states had burglary statutes protecting all types of homes including the nonpermanent and mobile right your honor before map as this issue didn't come up as often because obviously the government often had two arguments it could make it would make a divisibility argument as well as a mobile dwellings argument but the government did in many of the court of appeals cases going back to the ninety's in the early two thousand actually make this argument again it's become more important following mathis because now the divisibility analysis is harder and so in more cases the outcome is actually turning on whether burglary is capacious enough to those are structures that don't have any propel should propose propulsion mechanisms if i drive buyable it's a full on land i don't think of it as a vehicle in any meaningful way a floating home is essentially deceive it just floats to move if you need a vehicle to move it of some sort of ship but r v s campers directly and then just take take a step back i think people often will know that those are being used because there was are in fact designed or adapted for that purpose and so you sort of know that in order to know just a car there are plenty of homeless people i know in both new york and washington because i've seen them sleep in their cars but if i'm a thief and i see a blanket or a pillow in the back of a car i have no idea there's no notice that it's being used to sleep in because over the sleeping overnight you know parents who take a kid on a trip will throw a pillow in a blanket in the back i don't want in the back if someone else is driving during the day so what are we supposed to do about the use part of this adapted i understand you might be able to see that but how would you if you're a thief you know that  is being used for someone to sleep in overnight so you and i think there are a number of points sort of in that question i want to try to get to all of them actually don't think that the vehicle that simply being used on the trip taking the kid to college is that all at issue in this case that's not a sort of ordinary interpretation of either of the statutes that we have before us this is him statute that comes closest to make this to making this argument the arkansas statute applies either  a vehicle that is customarily used for overnight accommodation or one in which a person lives so somebody sleeping overnight would not call in there i also say we're any person lose the homeless person who lives in a car right your honor and we don't think that even that interpretation is in front of going to know that it's being uses of your honor i don't think congress was focusing specifically on whether a burglar would know ahead of time what congress was doing was looking at how the states to find burglary and  essentially that the central intuition of this court's decision in taylor is that congress did not itself provide a functional definition of burglary what it did was it looked at how the states to find burglary and the states by and large included vehicles used an adapted for overnight accommodation now the specific provision that's at issue in the same statute again if you think it's properly before the court it requires an interpretation of the state law that something that this court would ordinarily defer to the regional court of appeals on and the regional court of appeals didn't consider that here but i think it's significant that what the statute says is lives and that is some place in which someone even in ordinary usage makes a home and so i don't think that will necessarily be an ordinary structurally not at all adapted or changed  around my question would someone who groups into a car that a homeless person is using is their home are they encompass by your definition or by the statutes say your honor i think they are not in statutes and i think that our definition turns on whether most states would in fact have included that person so i don't think that it's incompetent by this statute because again i think even the homeless person they are hypothesizing would change their vehicle in some way that might put a burglar on notice but even if you disagree with me on that no state case as our respondents same is readily admits in the brief no state case has applied it to a vehicle in which someone happens to live and that's not just true of arkansas  between the respondents brief and our reply brief we've come up with about twelve states that have language that's similar to that and in none of those states can the government find a case in which these types of statutes were applied to a place where someone lives and i'm not sure how that you because you've identified first of all that only twelve states are at issue which seems to be a strike against the government here is to suggest that this was what congress had in mind in one thousand nine hundred forty six second the statue at least in arkansas is disjunctive right it says a place customarily used to live which might be your line up with the tennessee statute and suggest some sort of customization or change but then it uses then and that doesn't connote any changes to the vehicle itself at all that could be sleeping in the back of of a car nothing more and i wonder under your interpretation about this  hypothetical let's say someone breaks into such a car where someone's living a homeless person or someone crossing the country to steal a flip phone that would be burglary i think you'd say and the c would kick in in fifteen years might might follow that as a sentence compared to the person who toes away the same car without entering it and commits a theft that would just be a common law theft  with no no attendant problem even though maybe an arguably greater harm has occurred but what do you think about that justice course it's just sort of answer your questions in reverse order perhaps i think that's actually not particularly anomalous because what the what the burglar has done in the first case but hasn't done in the second case is opened up exactly the risk of a violent confrontation with which congress was concerned in in an acting a statute that specific  four and able to cars empty no one's around it's quite a like a home you don't know what you're going to enter we're going to find when you enter a car you can look and see so there's no risk of violent encounter in either my hypothetical so i modified my pathetic for you there now what you this i think takes me to your honor's first question which is that actually the numbers work in exactly the opposite way as you suggest on respondents view there would only be in one thousand nine hundred six when the numbers are similar today about twelve states in the entire country that would have any burglary offense whatsoever that qualify under the armed career criminal act by contrast on are i'm sure he's going to dispute that we've been around the numbers game already this morning i'm sure will be routed if you know but how many states nine hundred eighty six had anything like a lives in seems to me to see the small number you've cited to us new your honor i don't think it's exceedingly small and this i think will get me back to your second question of if the court will bear with me so i think there are about twelve statutes that had lived in or some kind of similar language but that's a subset of over forty four statutes that would have reached vehicles generally in which people live that were adapted for overnight accommodation that were customarily used for overnight accommodation and so i think what you see is that this it's all sort of coalesced around this notion of what is a modern day dwelling and that makes particular sense because as i began my presentation this morning common law our excuse me burglary has always focused on welling's and so it is hardly surprising that a large number of states would have over time noticed and taken heed of the fact that people live in many different places and that burglary statutes therefore should protect all of those places and so i think what congress again was doing was seeing where the states through those lines and we know that from this court's decision  telling me teller sad i know fewer than four occasions that burglary was in fact meant in the armed career criminal act to capture the common sense in which the states were using the term and you were using any that is any c type of any car that is lived in for the reasons i was giving earlier and i think that the def and the dictionary definition of limit would be to occupy as a home and so we ordinarily would see some type of change to the structure to there is no state case whether in arkansas or in any other jurisdiction that has similar language actually applying the statute to the home in which someone lives without any modification or really to a vehicle at all and three i think if you look at the two parts of the statute as i believe justice course it was no earlier one prong has customarily used and we think that that's something that is commonly used perhaps because it's designed for overnight accommodation and the other is some place where someone lives and we think that that brings in sort of the adapted in this particular case and so when you put those two prongs together you actually get to a place that is quite similar to the tennessee statute and i think that perhaps you're saying to me like you turn those two prongs into one made them support floors i don't think so your honor because something that is customarily used would be everyone knows that you can live in that so it's a mobile home and something of that nature whereas the live d n a is just sort of saying if you actually live in your car or not your car because new cases again actually cover your car but if you actually live in another type of s we're going to assume that you've adapted it in some way i'm sorry what is a suit and then what's the meeting of the team is it a structural change of some sort or is it thrilling a pillow and blanket accommodation under their statutes and by and large this comes up in cases involving campers hotels houses under renovation and the answers are not surprising respondents to say it's three cases for the suggestion that maybe it's difficult to decide whether something is adapted for overnight accommodation and all three of those involved just the title we can just leave it in the state hands we're providing a federal definition so what's the federal definition that we give you are providing a federal definition your honor but again i don't think that when understanding of what the federal meaning of it was in our cases we very clearly excluded vehicles we said that and so now you want to stay put a gloss on that and i want to know how and what guidance would give on that loss yes your honor so does it have to be something permanent to be adopted so i don't think that there is a clear answer to that question unfortunately i think that the general answer i problem really is that if it's criminal law suit shouldn't we be clear what we should we give notice to people of what the consequences of their actions are and so don't we have an obligation to be as clear as we can be yes your honor i think specifically of the examples that you mentioned the bad and the structural change those are clearly adaptations that would count just a bit and putting a mattress i guess around i mean we're carrying the mattress from the store to some time sometimes i think my car and sometimes i sleep in a home does it have to be do regular ask you a general question if you want answers you've read probably just as late as opinion about the woman who was trying to go to brussels and she ended up in serbia all right now you've used the congress wrote ten words in the statute it thought it had a simple task all we have to do is look to state law and then we'll see whether it's a violent crime or not but congress forgot that there are thousands of state laws with variations all over the place so what this reminds me of what we're doing swifty tyson the brooding omnipresence of the law we look up in the sky to decide what is generic burglary so what in your opinion do we do now judge posner said and i agreed with this what you should do or the sentencing commission should find out how these cases are actually prosecuted which you haven't nor has the sentencing commission a second possibility was just say we'll go back and see if there was violence in this individual case which is almost impossible because all you see is a rap sheet or something you know but over time maybe and a third possibility is that the department of justice ask write the statute which is exactly what mr prince said all right have you thought about this over the department where you have to prepare these cases have you thought about it and if you have a better approach approach i do think in this case it is not particularly difficult and that is because as i started out burglary has always concerned whiling so whatever the edge cases whatever the difficult cases under the categorical approach it's very clear that when this court noted intel or th congress had issued the common law and gone beyond the common law that it should have at least captured the types of dwellings that we're talking about today because again forty three b b gun no one in the last time was that i surely looked into state criminal law it was my first year of law school and i'm not sure how much i looked into it even though i understand your honor we have looked at it more more recently and i again i mean the best i can give you is that forty four states would have covered case and i appreciate that but but live with us for a moment of the more general concern that justice prior raised if you serve a circuit judges across the country about one right there have i know there actually is a statute in congress right now that replaces aca with a statute that looks to the penalties that have been given so i guess my question is has the department taken a position on that statute that is pending in congress currently honor i apologize i'm actually not aware of whether the department has taken an official position on that i know that the attorney general issued some sort of general remarks praising that effort but i don't know if that's down to the level of a real sort of department position i do think that we have thought about sort of the other ideas that justice pryor and justice course which suggest and among those in our justice course which i believe you added anything that the state calls burglary well call burglary i know that this court at least rejected that in taylor because you know you would have some sort of unfortunate consequences for example michigan has always been titled its burglary statutes as breaking and entering and they very clearly are burglary but that just happens to be the nomenclature that michigan used and what this court said intel or and what congress said was that it really didn't want sort of offenders who exhibited these these qualities had had these dangerous convictions previously to escape on a technicality with first i mean you're not exactly on a winning streak here and i think you since you might have gotten the h majority of the court really hates and it's picking it apart bit by bit by bit and at least with respect to the numerated offenses like burglary why not depart from this categorical approach and look at what actually happened in the particular case to the extent that you can determinate if you can't determine that it falls within generic burglary fine but in a lot of cases you're going to be able to figure that out very quickly otherwise you're going to be at the mercy of these hypothetical marginal hypothetical cases that the members of the court and there are a lot clerks tend to think of so the car that is you know has a mattress on the back and and you know things like that why not look at what actually happened in the real world as opposed to these these hypotheticals th know the court said that but the cordesman the whole what is right sometimes when we make a mess which we have done in this in my humble opinion in this area we have made one more oil mess maybe we ought to go back and correct our own your honor again i think perhaps in some cases that would be something that this court needed to think about i really i apologize for keep bringing for continuing to bring us back to this case but we haven't asked that the court reconsider taylor in this case and that's that's because we really don't think that we need that in order to prevail here taylor obviously is where the court first really embraced the categorical approach with respect to burglary and in this case it is quite clear again this this was really the way in which the states defined burglary by nine state statutes and this court construed those words significantly more narrowly than the courts of those states actually did and the statutes of those states actually did and in the process eliminate more than twenty state burglary statutes from the books  sentially for aca purposes precisely because was there a state statutes would cover all types of dwellings and whatever the edge cases whatever the hard cases under the arms career criminal act we just don't think that that is this case given what what had been on the books in the states at that time now i know there's been some discussion this morning about how offenders would have notice of what is in and what is out but i think we can point you to the same thing which is that this was the commonly understood understanding of burglary clear and if it's ambiguous we will not hold the application of the starting out with the premise that when the six and said burglary you would think it isn't generally a federal law or isn't generally a federal crime i'll look to how the states define burglary and this was how in fact the states to find burglary again forty four states would include this type of conduct at least thirty one included in a way that's narrow enough that they would have an act of burglary statute on our view if you take my friends position that number dwindles down to twelve and i don't think that keeping in mind that congress enacted a very significant  these offenses i don't think congress would have expected its work to do so little and importantly it's not as though those twelve would actually be the most severe or the most aggravated burglary offenses in those states entirely based on this question of whether they did or they didn't think about all types of places whether a laboratory modest where people live so you wouldn't even necessarily be getting the adulated burglary statutes in that instance in fact if you look at the tennessee case that we have before us state that is an aggravated burglary conviction because it's buildings and structures are in one category that are inside the statute vehicles are in another category they're outside the statute and this case involves quintessential vehicles secondly the use prong of the government's definition to offers to this court is an independent reason why arkansas law goes beyond any generic definition of burglary that would be acceptable and third if necessary we would ask this court to apply the sixty minute rule to justice thomas announced an apprentice and himself laid out outside the generic definition of burglary but i think that when the court said that what it really meant was this is a way to say if this if the statute covers basic car theft it's outside a that's not the typical burglary offense and the court was not thinking about mobile homes or r v s it just didn't have that in its head when it made those statements so those statements really don't have much to do with the and the government in its brief said the mere fact that the statute covers vehicles is enough to put it outside of africa and the court said the same thing four times in its opinion and i hasten to add and i think this goes back to justice ginsburg's question in the first part of the argument about the government's position and mathis the government on page forty two in math a said if you adopt the divisibility rule being urged by the other side you're going to leave many state statutes outside of burglary and in footnote twelve the government cited many states statutes that it now is back here claiming nobody really ever addressed the question of are there different kinds of vehicles in the world are there cars and are there mobile home yes so i understand justice kagan you haven't had this precise type of object in front of you but i think the court's opinions are still illuminating because the court does say there's vehicles on the one hand and structures and buildings on the other and so the project here is which category do things like sleeper vans or a sailboat tied up at harbor that has a sleeping quarters underneath fit into and so just as the court has held in the fourth amendment context of california versus carney just as the hud regulations that we cited page eleven of our brief lay out just as the state law like tennessee lays out just like local law like local zoning laws we cite in the same page of our brief they all distinguish between floating homes and mobile homes which are designed to be stationary on the one hand and put those in the structure category or a developing or a residence category on the other hand there are things like recreational vehicles the sleeper vans and boats that have sleeping quarters they've always been in the vehicle category and the reason why is because the principal purpose of those objects is transportation they're all they can be used incidentally for overnight accommodation and they are occasionally used but i want to stress to the court it's only occasional and i know i heard some displeasure with the categorical approach in the first part of the case and i'm i'm happy to engage in that but just to take the law as it stands and as the government is not asking you to change it the hypothetical the government has to answer for is the vacant sleeper van or boat tied up at harbor that is used only a few days a year and shows no outward signs of current habitation that's the hypothetical that both tennessee and arkansas sweep a somebody contemplating a burglary can look at them and determine pretty easily that's place is not occupied at the at the present time but what about so you have a house and the next to it you have a self propelled vehicle that is designed or adapted for the overnight accommodation of persons and is actually occupied at the time of the initial entry by the defendant is there any reason why the then of burglary of the house should be treated differently from burglary of this vehicle isn't the risk exactly the same well just as alito i mean answer that question but just allow  don't have that i don't have to win that hypothetical because the hypothetical the government has to win is the person not being in that not being near a house but to answer your question directly why would you also in that that's the arkansas statute when i read you is exactly what the arkansas statute says no no no the article the organs us actually said i'm sorry the tennessee statute the tennessee statute does not require it it does require the person to be there yes just as a way that it doesn't require to be sitting right by a house so you know i'm just saying well this is the contrast why would why is one you would concede burglary and the other and the other is not i don't see any possible reason why the law should treat those two situations differently i think because the criminal law we've heard a lot about noticed this morning and the core concept of criminal law is providing fair notice and so for the same reason that a vacation home is inside burglary because it is a home it is a dwelling and so you would expect it to be occupied as a residence even if it happens to be somebody's second home that is in the same objective characteristics o a vehicle even a recreational vehicle adapted for occasional overnight accommodation fall outside and so the criminal has to draw lines you can't simply do it and that fine grained of a basis in the government's argument justice alito i would add does not depend on the person being inside the vehicle at the time of the crime the government doesn't make that argument and that's the only way the government could sweep in even the even the customary use prong of the arkansas statute but justice kagan you don't notice if you're convicted three times burglaries were of a structure as taylor said i don't understand the notice point well justice gavin i think that if i may add it begs the question a little bit whether the r v is in fact legal would look at the tale learn you'd see it citing the model he tailors the think if you're convicted three separate times of breaking into an r v and look at that those sources you would beyond some notice that you shouldn't be possessing a firearm well just the cabinet there are many many pieces of taylor so there is the state law piece that my friend is is focused on but taylor also says on the very same page that congress in one thousand nine hundred six intended the practical identical definition of burglary as in the eighty four act remember the eighty four act covered only but taylor taylor does not do that though when it says other or other structures quite clearly taylor departs from the eighty four statute and what it describes there don't you agree when it says or other structure i think it departs from the eighty four but that's why it was the night before act only says building that's right i think that's why the court said practically identical and i don't want to start interrupted one of the reasons the departed as i read the opinion which is quite his opinion of the common understanding at the time of what burglary entailed right the court did look to state law in taylor but as i said it also looked to legislative intent and the drafting history and the li and i think taylor was correct in so far as it went at that time that you still would have covered a majority of the states even if taylor covered vehicles adapted for overnight accommodation this which happened in mathis that's when the government came to the court and said if you have an aggressive divisibility jurisprudence that's going to leave aside many state laws because of divisibility reason so the answer to the state law concern is and and and that's the bridge the court has already crossed and that the government doesn't ask the court to to to revisit if we're talking about congressional intent i think there's one other important thing to put on the table in the text of the law and that's the residual clause i know the court obviously has invalidated that clause but we think the text is relevant in terms of congressional intent and the text of that clause remember reads as follows after the enumerated crimes it says any other crime that quote otherwise involved i'm sorry i'm reading it page ten a of the government's appendix that otherwise involves conduct that presents a serious potential risk  physical injury and so the word otherwise tells us that when congress defined burglary and in fact it didn't define that when congress used the word burglary it must have assumed that the version of burglary it had in mind quote involved conduct that presents a serious potential risk of physical injury now if you look at the f d a amicus brief and this is responsive also to justice briar's questions about statistics there actually have been quite a lot of studies conducted about burglary law and what they find is that when there's a burglary of a home or somebody residence there is a real possibility that you could have a violent conduct confrontation or physical injury something in the range of two to seven percent of the time i contrast when it's burglary of a nonresidential structure the percentage goes down t point one seven percent which translates to one out of every seven hundred crimes that involve what a state would expansively burglary of a nonresidential spot which category it is this case who knew and so this kansas belongs in the la about things that are not primary residences there are neurons that i mean their residences there inhabited by people and so i don't know why it would be a lower statistic of it's say a car or a trailer or some kind of motorized vehicle that a person uses home but i think just as by the typical usage of something like a sleeper van or recreational vehicle it's not as a residence a person has a home and then they have a second vehicle that they use for trips and weekends and vacations and the of the university of michigan and what they found is that the typical owner of a recreational vehicle uses it only one thousand nights a year that's five percent of the time your position mr fisher is that mobile homes are included but are these are excreted is that correct i think i think it's as cover structures which it includes in the definition of structure a mobile home subsection b talks about vehicles and vehicles as the subsection in front of the court and so you don't have to look any further than the government's appendix in this case and you find in other state laws to illinois the smith case which the government itself cites and in fact asked us courts to follow distinguishes between motorhomes on the one hand and things that are that are less and less commonly used for overnight accommodation on the other could you give us a view of where if if we accepted europe as position what that would be and in terms of how many states will is qualified yes and i want to i think i can give you a thorough type ology if you let me which is we  agree with the government that that only about twelve states would be within the definition if you were to hold both tennessee and arkansas law fall outside of it so the adapted clause would bring in would bring in many states but on the other hand the government hasn't told you that on the back end you have about twenty other states that are broad even into the government's overbroad even under the government's definition so what this what this case boils down to justice kagan is a delta between the parties something about between fifteen and nineteen state states and even in those states you have states like tennessee and he said that in a way that i'm sorry that the delta which you're fighting about yes is in the high teens yes that's right and even in even among  i don't dispute that that's somewhat significant even among those states though there are many states like tennessee that we have a separate provision that it's divisible that would still qualifies as burglaries so it's even i think less than the high teens  i understand that the government keeps harping on the number of states because that is certainly the strongest version of their argument but even if this were a case about first principles and not about starry decisis where the court had already said the vehicles are out we think there's three  countervailing forces that that as a matter of first principles should leave the kind of vehicles we have an issue of here out first we have the broader context of the law that i've described which is the one thousand nine hundred four act in the car in this court's understanding th congress didn't intend to significantly expand upon the definition there as well as the residual clause or what that tells you about congressional intent trying to get only those burglaries that had a significant risk of violent acts or physical injury  secondly we have the purpose of aca which is laid out a great length in the tailored opinion were again the court said in much the same words as the residual clause what congress was worried about were particular crimes where there's a risk of inherent risk of physical injury and not only inherent risk but a awareness on the fact of the perpetrator that that risk was present in this dispy kstu some of the conversation earlier and then thirdly we haven't yet talked about a minister ability and i think the court got its peer review into the difficulty in terms of minister ability when you ask ms ross about what the word adapted means now our definition just as kagan this brings you back to the conversation we just had is well grounded in federal state and local law there's a definition that runs throughout every level of law that separates stationary structures that can be moved like a mobile home or a floating home on the one hand and things that are essentially vehicles on the other the adapted definition that the government gives you they readily admit is not easily defined and i still as i stand here just to be candid don't know whether a physical adaptation is required is a mattress in the back of a station wagon enough is as the government suggested page eighteen of it's brief simply hanging a t shirt in the window like a curtain to block a light enough different states are going to answer that question differently and not only does the state brief point out a couple of examples but the knack to brief points out examples of pages thirteen to fifteen of it's brief so adapted it's going to be a very very difficult line to draw and i don't know how how many cases the court wants to have come back to it on that but isn't that what the model penal code in some states already have in other words this is not something that would be created now not just as cavanagh it's true that many states have a statutory language that says adapted for overnight accommodation but what i'm telling you is different states one target that differently which is why why ms ross couldn't give i understand that that's always going to be the case at the least some slight differences right that may be true but i think when you don't have a firm grounding throughout other areas of law like our rule does you're more likely to have variation and problems i think that's what i would tell you and you don't think adapted has a firm ground even though it's been around in most states statutes for many states well i don't see a definition in the government's brief and i haven't seen a definition anywhere else so i'm certainly not aware of one and i would ask you also and you as you look to those who have as a matter of first principles if you have any doubt as to how to resolve this case we think this is a case that really cries out for the rule of lenity another important aspect of notice of course is for defendants to have fair understanding of what conduct would qualify for a given sentencing enhanced meant and if nothing else the fact that this court has said on so many occasions that vehicles are out without any qualifications without any reservations and that structures and buildings are in would have told the ordinary person that the vehicles even like sleeper vans recreational vehicles were outside of the definition of generic burglary if i may i'd like to spend a few minutes on the specific provision of arkansas law that was also spoke talked about at the beginning of the argument as i understand the government's position it's not disputing that an ordinary car would be outside the locational element of burglary now the first thing the government said was they didn't think that was before the court but i just don't see how that could be the case given that it's within this question presented the question presented to the government itself drafted says adapted or used and so used has to mean something different than adapted and we think it quite obviously covers things like the arkansas statute which is an ordinary vehicle in which somebody lives and the government's only answer to that statutory language well every single time somebody lives in a car it will in fact be adapted now just as of course it already pointed out one problem with that which is surplusage if that were the case you wouldn't need anything other than an adaptive clause but we're talking about a state statute  be interpreted in lots of different ways by the state courts you want us to provide a definitive interpretation of the arkansas statute here i think if it ran big u s justice alito that might be something you wouldn't want to do but when the plain language so obviously exactly what just silly those who jesting and just remand it and let let the lower courts figure it out maybe they can certify it to the arkansas supreme court and figure this out so for so for two reasons one procedural and one substantive justice course which the procedural reason is it's squarely within the government's question presented it's within the rule the government is asking the court to adopt the government's head or in the argument section to its rule says vehicles that are adapted or used for overnight accommodation so i don't know how you all all of that ok i'm with you but with the circuit didn't have a chance to consider this particular argument about living and it's a it's a nifty little argument but maybe we'd benefit from being a court of review rather than first feel it well i'd encourage the court to do exactly this is my substantive answer to do exactly what it did in mouli when that we had a controlled substances law in front of you and the question was whether that state law from kansas was overbroad into the categorical approach the government argued in its brief because there were no state used more than once or used in some other way and we don't know i mean i can't believe that they'd need used once when the person left his briefcase or something in the car they can't leave that you know i agree it doesn't mean that justice prior what we say it means is what justice sotomayor was describing earlier which is somebody who uses the car as their home and sleeps in the car every night and this is the empirical answer to the government's assertion which is just it isn't directly untrue that every time somebody sleeps in  car they will adapt for that overnight accommodation in fact quite to the contrary many people would be embarrassed to be using their car as a home or they would be concealing that fact because they would be looking to evade local zoning laws that would prohibit sleeping overnight in parking lots or the like so we cite in our report in our read brief justice brier an article from the new york times in a footnote of a whole collection of studies and articles that explain this phenomenon and it is just not true as an empirical matter that a car in which somebody lives will be a necessarily a down if you were representing a defendant and before the arkansas supreme court a person had been convicted under this statute a person lived in the car but every morning cleaned up the car so there was no way anybody could tell that anybody had been living there we would you rule out the possibility of arguing to the arkansas supreme court that there might that maybe there should be some additional requirements read into this provision well just as legal if i were appointed to that case i might make that argument but i think i would have a pretty lousy argument and the reason why is because the plain text of the law would be directly against my argument remember the there's already there's a separate prong of arkansas law that covers customary usage and i think i heard ms ross say that covers the kinds of vehicles that are designed for that purpose or physically adapted to that purpose so the only thing the other clause can mean under standard tools of statutory construction is the other is some other kind of car in which somebody lives and so i think even if somebody were to make that argument to the arkansas supreme court we cite and our brief cases from the state of arkansas that says we follow ordinary statutory construction principles and it would just be a flat loser of an argument and even if the pla text arguments weren't enough we outline in our read brief in the sims case the numerous other reasons why the plain language of a state statute ought to control for categorical approach purposes and those didn't those are two general categories first   that the prior conviction of the state law simply can't be a qualifying offense and so we think that's enough to decide the case on the arkansas side and there were some questions earlier about how the court should think about the categorical approach more generally and so let me say a couple words about that because i do think it is a fair observation from the court that part of what's windowing down the number of states covered by the government's approach and in our case is the nature of the categor approach now the court had fair notice of that the government told you this and matheson it told you even in taylor that if you go down these roads are going to to undo the number of states and the court i think had good reasons to do that because when you turn to the categorical approach it's not just about congressional intent it's about these predictability fairness and sixth amendment constitutional concerns that have to be in play so it's not purely a question of congressional intent it's also a question of workability but as workability and constitutional jur regardless of how different members of the court think about those undergirding principles there is in fact just as kagan mentioned there's a there's a bill before congress right now that would adopt a totally different approach and this is something attorney general sessions spoke about  august and so it is very much on the table in congress right now to take a different approach and i'd return the court if i may to table in taylor there was actually a bill pending at the time of that decision and the court for whatever reason went ahead and issued its opinion and taylor and it's sort of only into this jurisprudence ever since and one thing that you might think about here is there's a bill pending in congress right now we think the stay for path is for the court to continue down its its prior precedent they have good you have good reasons for what you've done i understand some of you were frustrated with it and maybe congress the first to do with it but the best thing the court i think can do is follow its own jurisprudence in this case which is which means two things one is apply the categor approach as you've outlined it all the way up through mathis and out and even apply it as to burglary as you put structures in buildings on the one hand and vehicles on the other and if congress is just satisfied with the outcome it's obviously fully able to pass a law that's pending in department even if it hasn't taken a firm position and take a position and get something done but we think if the court goes out of its way again to do something more extravagant in these cases you're going to potentially own this jurisprudence a lot longer and that's what really what's happening here the reason these cases are in front of you and you may know this already but the reason is cases are in front of you are because of after the invalidation of the residual clause the government is going around making a bunch of arguments that it didn't make before trying to get in various prior state convictions that it wasn't arguing for under the enumerated clauses or into the use of force clause and that's why you have this new explosion of aca cases and so i think the better thing is for the court to follow its own cases its own precedent leave it to congress to just if it wants but not feel like it has to accept the government's are if you accept the government's definition of adapted then the tennessee statute would would fall within it but it would be also that there would be so you know i think the answer to that is yes if you accept the government's argument on adapted then tennessee is within it but we act for all the reasons i've asked before not to accept the government's argument to adapt to the only thing the government has to say for itself justice sotomayor and i may be repeating myself here is the state by state count we think the state count jurisprudence and the other things in taylor things like adhering to the eighty four congressional intent adhering to the most important thing perhaps which is just sweeping in violent offenders mr chief justice you talked about people using guns you know that would be the quintessential case of course congress do with a little bit more broadly a risk of physical injury but for all the reasons i've argued and we've shown in our briefs the outer limits of the tennessee law even on its own terms covers these kinds of cases that as i said to justice prior earlier  in seven hundred chance of physical injury and in those kinds of cases we don't think congress would have expected a state law to to be swept up into aca and i would hasten to add that i think this is also a response of justice breyer us about how these cases are charged when there are the kinds of altercations that justice alito for example was was hypothesizing somebody is inside and there is a violent altercation those cases aren't charged as burglary their charges things like carjacking robbery  assault so the burglary convictions and this is what the sentencing commission found when it backed burglary out of even the crime of violence provisions in the sentencing guidelines that found that when burglary is charged it's in the cases where nothing happened but two and so that may well still satisfy the categorical definition of burglary under aca the residential entry because of the awareness and because of the inherent risk but once you go beyond primary residences and talk about things that are hardly ever occupied and that people are going to target specifically because they're hardly ever occupied walking down to the to the marina with a sleepy sailboat on the dock and rummaging through the contents those are the kinds of things that congress i don't think would have expected to be swept up and any sensible definition of aca wouldn't trigger the harsh consequences this fall if there are no more questions all of the case thank you council five minutes  friend has not actually quibble with those numbers he agrees that it most we're looking at twelve states with ak or burglary under his view and i think that that is itself if not dispositive very close to it because again we don't think that's a statute that congress would have passed now my friend has a couple of reasons why congress might have done that he says well really the delta is only twenty or so cases or twenty or so states but those twenty states make the difference between the definition of aca burglaries satisfying with this court said four times over and said that a few state statutes might be broader than the definition that it was adopting so those twenty state statutes i think really cannot be underestimated here the other reason that my friend gave for why the numbers are so low is that mathis changed everything but math this didn't change everything as math is itself it would explain math is interpreted this the aca as it always stood and so i don't think that congress when it enact to the statute in the first instance would have expected about twelve state laws to come in as burglary another thing that my friend mentioned was the residual cl again i don't think that when congress an act of a statute with the word burglary and then with the residual cause which we know was an attempt to expand the scope of the statute to reach other crimes that it in fact would have meant for most burglary statutes or a substantial number of burglary statutes to come in through the residual clause while narrowing the point or the word burglary to essential obsolescence so given the way that the states that it's playing out here we think that our reading is the one that is consistent with what congress was what it was trying to do and with taylor itself now speaking in terms of tailor my friend mentioned that heller said that the definition that it was taking on was practically identical to the one thousand nine hundred four definition and that that definition only included buildings  i think i apologize i don't remember exactly who said it someone had mentioned one of the justices had mentioned that in fact the practical difference may make up for the fact i believe it was justice kavanagh that really the difference between buildings and structures and that might well be true i also think that taylor itself was looking at a definition of building and congress in one thousand nine hundred four was looking at a definition of building that had taken on its own very broad meaning in burglary law if you look at the appendix to our brief in this case most if not all of the states that actually defined building did so in terms of vehicles other structures etc so they had a very broad definition that might not make sense in ordinary english but was but what what state burglary statutes used and so when this court comes along wanted to clear up with respect to the government's position in mathis i don't think it is true that the government said that all of the statutes that it noted would in fact be out if mathis came out the way it did it said it would raise them questions and many of those statutes in fact are broader than the statutes that we're talking about here today in closing we heard a lot about numbers this morning both on our side and from my friend i think the thing that week there are two things really at the core of this case that can't be denied one is that burglary has always protected the core dwellings and the second is that on respondents view aca burglary takes a step back from that and includes far fewer dwellings eliminates the majority of state statutes precisely because they cover exactly what courts for centuries thought of as the core of burglary we don't think that's what congress intended we don't think that's what this court intended in taylor and we were there for ask that the decisions below be reversed sorry ms rust do you agree that if a statute covers just base regular cars that that falls outside regular cars meaning no nobody's living there or nobody's living there nobody's doing that you just drive in it yes your honor i think it would be difficult in light of this court's cases even though actually a large number of states covered those i think would be very difficult in light of mathis and doing the salver as in all the other cases in which this court said so so you're accepting that those are out yes your honor and how about the the ones that say vehicles that are used for business activities commercial activities or those in or out here on or we haven't taken a position on that in this court it's not raised in these cases and that is not sort of the considered view of the justice department at this point we're not using statutes at this point if the if the court has no further questions we'd ask that you reverse in both cases thank you thank you counsel the case is submitted