we challenged one of his prior convictions that was the missouri suspended imposition of sentence for burglary from the year two thousand we challenge his kansas burglary conviction from one thousand nine hundred two and we also raise the issue that these other convictions are element of the offense and these newspapers we don't know as far as what he stole where it was we don't know what was in the bill and no there are no facts in any of the extrinsic documents that tell us where it was no  play so in kansas it goes from complaint to information yes that's my understanding and specifically the documents provided there in the journal entries is what they're called specifically referred to the fact that he pled to an information i have not practiced in kansas but my understanding is that there's a charging document filed it's a complaint there will either be a preliminary hearing or an indictment and then information is filed so i think that really the court doesn't need to go past that when i believe the government's going to did that the statute is overbroad and that the court would have to look at expensive documents to figure out how what he was specifically convicted of those expensive documents were produced but they were unable to produce the document that he pled to there's no question that an information can vary from the complaint greatly is your position that we need the information regardless of what these documents say or are you saying that well we would prefer the information but you could accept this complaint but even then it's not enough my position is that we would need the information no matter what so it doesn't matter that in your to your view it doesn't matter we have these you have to see the information because yes i read it with a plea i mean i think if there were jury instructions that would be different because we would know exactly what the jury found but this is a p you ation and i think in a police situation we absolutely have to see the document to which he pled we cannot base we make the court cannot base its decision on a complaint only and i i believe that the court doesn't really need to go past that once we realize that we don't have the information to which he pled i think the analysis is over we can't really look any further because we don't know what he pled to and we don't know which portion of the statute he he violated however even if the complaint were sufficient the complaint itself is written as if the statute were indivisible the complaint  that we are not supposed to be doing in a day prohibit the fact based analysis and specifically limits the analysis to the elements only and so i think when we're looking at these expensive documents what we're supposed to be looking for according to the camp is specifically what element is charged what element he pled to what to camp very clearly prohibit is looking at these facts and then what the argument should be here or what the analysis should be here it shouldn't be what is bob conoco is that a building the analysis should be where the documents provided the fish for the court to look at the elements the elements only and figure out what he was convicted of and if they weren't sufficient first of all because we don't have an information and second of all because even if we could rely on that complaint even if he pled to it the exact same wording as it's written in the complaint the complaint still with all of the different elements it doesn't actually do what i think the supreme court the camp thought it would do which is pick one and specify it the states don't charge cases based on how the federal recidivism statutes are written i absolutely agree so the courts sometimes have to see whether you can document as a whole to see whether even though they listed all of the ways you could commit burglary the two with clause for example obviously narrows it you say salue is not good after to come yes i believe that building mobile home and or other structures to with the residents said one two three jones street i believe that would still actually be under the camp we could say that's a building no i don't believe you could based on  factual allegations that's actually a part of the opinion into camp and so i think what the court is saying there is that sometimes these facts are incorrect and that's why we can't have judicial fact finding we can only look at the elements and i'd like to pleadings and other documents that the court the supreme court has said we can look to to determine whether or not the prior conviction is a crime of violence for purposes of sentencing statutes so us as judge called  if if it's the pleadings mall list all of the possibilities building residents mobile home tant and then it has to wit he entered bob's conoco or as judge cotton said residence at one two three main street that is not a fact based analysis because the supreme court said the court may rely upon charging documents and plead occupants  that in order to determine whether or not a prior conviction qualifies as a crime of violence in these situations where there are multiple ways to violate the statutes that are crimes of violence or some well suppose you're right about that she says there are still two more problems here one is we don't have the actual charging document to is even if you use the complaint it's comical is ambiguous because  don't have the information we get these packages of all convictions and when you compare the judgment and the police document in the police document it sets forth that he waives a reading of the information and then he he pleads guilty to the specific counts and those specific counsel believe one through seven exactly track the seven charges in the complaint with the first being the attempt to set fire to the ball of twin the world's largest ball of twine all the way through the end of that complaint where he was charged with the newspaper boxes and the left of lights from the airport the blue lights so when you look at the judgment the documents police and the complaint they exactly track not just in the number of counts but the statutes that are being violated and then in the judgment the sentence on each count and the restitution amounts to the various entities that correspond to the charges in the complaint i believe that's sufficient for the court and for the district court to rely on as to what charges he specifically pled guilty to r what army that's all of that is sufficient for the district court to rely on what that count two of the information was caught the same as count two of the complaint all you want to you think the judge can infer that the information also said to with bob's konica correct i mean there's no reason to believe that the information charging the same statutory provision burglary in violation of kansas statute would be worded any differently or better than the complaint the second question judge you know can we can the district court find by a preponderance that it was  had it been a gas station why not just put building bob's conical building the charging document doesn't say that in the court response because everybody in the county knows what bob's comical is right and that is the sort of commonsense approach that swallow said you can engage in in looking at all of the information in the pleading documents to determine is that a is it a tant is it a building in swallows case was it a grocery store  you know swallow states he argued and that was my case as well actually it's still possible he burglarized the sales tent rather than a building but the preponderance of the evidence simply means it is more likely than not that an event occurred the government the standard does not require the government to eliminate every plausible scenario and as it's just constant said when the state charges these things they're not thinking about what consequences down the road will have for federal sentencing purposes i believe here that the charging documents and the in the plea document in the sentencing document are sufficient were sufficient for the district court to determine that it was a burglary of a  go back to dish arms it's really this divisible non divisible statute shops but when you look at that case the california statute didn't charge for the generic burglary that the supreme court found in taylor there was no element in that case in the california statute of unlawful entry and that's the starting point for the supreme court there that it doesn't you don't divide it because it never did have the element necessary statute it's in line with all the other cases posted to the tromp that are burglaries that allege various of the statute alleges various ways that the that that it's violated some crimes of violence some not we wouldn't have this line of cases if we didn't have some ways to violate the statute that the court can divide out that are crimes of violence and some not such as the tenth and so forth so may go back to the complaint question for a man or reason was the information available we do not receive it you didn't receive it but if there were a rule of law that said you've got to have the document to which the person pleaded guilty could the u s attorneys get the charging documents are they retained you know by the state courts we we request through the agency a t f in this case the prior convictions from the local county clerk's office and we this is what came back this is what we get i mean at that point if i had realized hey just said he pled to an information we don't have the information we certainly could have gone back to the clerk's office and said we need the information and i'm confident they would say we gave you what we have so you infer from this that the information isn't available anymore or the county would have sent it correct i mean that i don't see any reason why one week if you look at exhibit one it starts out with a violation of super of probation on that particular conviction and that goes back to the first document which is t complaint so it has all of the relevant documents for that case except the information meaning of it's a gas station and think it's enough to say bob's kind of code that's the building correct and what if and when you then start looking at its miscellaneous chains i guess we're suing that the newspaper boxes are also there are often outside granted in your view that doesn't modify whether or not bob's conoco in this particular context is the building i think it's a factor to consider but i when you look at the the restitution i'm out there was a believable restitution of forty five dollars to bob's conoco and i would think that that would be for a fifth of miscellaneous change from the building up bob's comical when the newspaper boxes at bob's conoco i don't know a judge now you know when we have it if you had done all they might have been out on the street corners  police reports and frankly under shepherd we couldn't consider them anyway so if they're not for the questions i asked you to affirm the sentence of the district court thank you the first thing i'd like to address that the court asked about was the difference between the complaint and information and again i really think that the the analysis and there is a huge leap of faith to assume but the information is identical to the complaints i think we see frequently that we have a policeman or hearing or you have a grand jury and that different the allegations change just some extent and so it is entirely realistic in this case that the information may have said something completely different it may not be said bob connick oh i don't know we don't know and well it was the same so yes charges to achieve pleaded guilty yes i agree the wording of the complaint and the wording of what he pled to are are the same are identical and i don't think that we can use that complaint and rely on that complaint to figure out which crime he was actually convicted up then  and i do want to point out that it may not have been the government's fault that there was no information available this is the one thousand nine hundred two case from a small town in kansas that said the government still has the park and if they cannot produce the document to which he pled where we could actually get the information of what he was convicted of then i think the analysis fails and if there are no further questions by the court we would ask you to find there's insufficient evidence to determine that h