subject to an a c c a sentence and that the two hundred and thirty five month sentence he is currently serving is almost ten years longer than the statutory maximum the only question that still remaining is whether he can satisfy the procedural requirement of showing that johnson error occurred at his original sentencing and even under the government's framework for analyzing that question he can this ultimately depends on whether the district court relied on the residual clause to find that mr was out of nd degree burglary conviction with a violent felony at the original sentencing and answer to that question is yes so because the sentencing record is silent about which quasi relied on we look to the background legal environment and  fourteen that background legal environment would have required the district court to rely on the residual clause the plain language of the statute defining colorado nd degree burglary of a building is broader than generic burglary because the definition of building includes for example ships and vehicles adapted for the overnight accommodation of animals and the government doesn't dispute that they admit that this the statutory language is overbroad and doesn't satisfy generic but really what the government is wrong to say is that the such as a court could have looked beyond the language of the statute to the facts of the burglary itself so the government argues that the district court could have looked at p s r language  consider the facts of the underlying burglarious so that p s r learning which says records from denver county district court reveal that the defendant broke into the victim's residence the sentencing court could not have considered information because it didn't have any way to evaluate whether that information came from separate documents and progress vargas which would have been controlling at the time of sentencing is exactly on point on this question in that case the district court found that a prior conviction was a crime of violence based on information in the p s r that came from court documents and on appeal this court reversed because the court documents relied on by the p s r were not in the records and so the district court could not have evaluated those records to determine whether they were acceptable shepherd documents and the same is true here in the denver county district court records that are mentioned in the p s r they want part of the sentencing record and there would have been no way for the sentencing court to determine that they were valid shephard documents so it couldn't have used them to determine that the burglary was an a and that's a different crime than nd degree burglary of a building and so that that's not a separate document because mr liz otto didn't admit those facts when he pleaded guilty and so since no sheppard documents were part of the sentencing record the sentencing court would have had to look limited to the plain language of the statute and could only have applied the residual clause to conclude that that statute qualified as an atheist a predicate so even if we look at this question under the government's proposed framework josten error occurred because without the residual clause mr was only has to predicate felony medicine robbery  we'll hear from the government the morning may please the court paul farley for the government a little bit about the framework just to make sure that there is actual agreement on that and then i'll move to the application of that framework to this case the court's decision last year nearly holds that to determine whether johnson error occurred we begin with all of the sentence prior offenses deemed by the sentencing court to be qualifying predicate then the defendant has the burden of showing that movement has to prove that it was the use of the residual clause that led to the sentencing course  apply they all qualify we look temporarily then we look at the time of sentencing and not otherwise yes we have a two step analysis here st step is what what was the law of the time and what qualified at the time and if you find fewer than three at the time then we move to current law and determine the status and we have as miss stated we have conceded that under current law there are not three qualifying predicates however we don't get to the nd phase until the defendant clears the st st phase so i'm sorry go ahead or sell any there's robbery and nd degree burglary there's agreement that the felony menacing and the robbery of a qualified at the time so right now it all boils down to i think there's agreement on both sides generic burglary and shepherd documents i mean what you could have relied on at the time of the sentences sentencing under our precedent would have been the statute itself which doesn't help you write the charging document or court records of comparable reliability and any admissions what do you point to that's a sheppard document that was available to the sentencing court at the time  sentencing well what i'm going to point out is that the p s r and let me let me walk through that because i think there's been some variation or apparent inconsistency in the treatment of  in part on court records and the defendant did not object and i was referring to an earlier decision and harris which was decided the year after press bargains terraces also published the opinion last year of copeland decision published opinion said that harris wasn't directly on point but that even under washington's take on harris a court would have needed more than a defendant's failure to object ok there must be some proof that p s r relied documentation so where does that leave us here the p s r said that records received from the denver county district court revealed that the defense defendant broke into the business residence although he pled guilty to breaking into a building the defense concedes that this satisfies the definition of generic birth delayed but says the court was not allowed to consider it's clear that the state court documents referencing the p s r here showed two things that the defendant was originally charged with a more serious crime a burglary of a dwelling and that he subsequently pled down from that to a building the court documents then likely are either the complaint and judgment together or the us it doesn't and i think it doesn't require that we anything it's not just some reference to the state court docket but we need to know specifically if we're if we are if it's a records the p s r says as much and nobody objected to that my point is that that that passage in the p s r it doesn't tell us what court records and it doesn't tell us what specific laws the defendant was and i'm sorry i felt like there was more to the question and i didn't catch it though i just want to know if the records are separate documents are in the record for our review there are the the  documents which were provided at the two thousand two hundred and fifty five proceeding i believe mission correctly points out that those were not available at the time for the court's considerations show we should consider those what i'm suggest here is that it appears that this court's tourist prudence and certainly the th circuit indicates that a t s r referee referencing court documents is itself a variety of  sheffer document that it is permissible to look at that to determine the charge at the time that well let me let me interrupt again this is judge me q in the p s r when you're talking about that particular sentence that you quote records received from denver county district court reveals that the defendant broke into the victim's residence although he pled guilty to breaking into a building what they're talking about there is the original charge of class three burglary right i believe so ok and he ended up pleading to a lesser offense of class for a lesser  ok so we don't know when he ultimately was convicted of the lesser charge i'm not sure that the elements of the greater charge are all that helpful because he never  and i understand let me let me let me kind of roll through where i where i think we we can get there like i said the t s r doesn't tell us what clause is convicted under but it doesn't tell us what he was convicted o it wasn't of breaking into a shift trailer or sleeping car airplane or other vehicle and it wasn't a structure designed to shelter animals or property it was a residence for human beings and that's what the sentencing court saw the court explained that he wasn't convicted  burglary alone he was convicted of burglary of a building apparently as part of a plea bargain that volume three page fifty three dollars and more to the point the records indicate that he actually broke into a woman's home who found in the dollars so even if the p s r here doesn't quite satisfy the law at the time we think it does but even if it doesn't under shefford i think the statements by the sense in court amount to an explicit factual finding to which the volume three page forty one dollars and given that the defendant has the burden of proof at this stage of the proceeding and has brought forth nothing to the contrary i believe that's enough to sustain the sense in court finding under the numerated offenses cla and one final point here under nearly and this court's published decision in murphy from two thousand and eighteen we're looking for the analytical path of least resistance when considering a burglary offense the most obvious thing in the world would be consider it under the enumerated offenses clause rather than reaching out to the residual clause again our record is the void any indication that the government the defense the court probation anybody thought the there we also had reliance on quote court documents from the state and we said that that wasn't enough because they have to be court records of comparable reliability to charging documents and we said without more information about what these court documents are we can't tell and we're not going to rely on it but in but in the harris decision which again was the year may i finish my answer  it at that appears to me you want to call the expansionary stepping out from the classic shepherd kind of formulation but i think that and even copeland copeland did not disavow here said you have to have something indicates the record records we clearly have an indication as court records that was it was stated as much by probation how other than having shepherd documents in front of  raised some sort of objection the government could then a presented in the proceeding the actual documentation again a lot of this falls back on itself it's clear that probation had these documents there was no objection and so they were not they were not brought before certainly again as i've indicated it seems clear that the documents that they were referring to would have been shepherd documents because they had both the original charge and the final judgment so i think it's the complaint and the judgment or burglary was a generic burglary but there weren't any separate documents in the sentencing records there was just the p s r reference to the denver just which were part of the sentencing record and so the district court couldn't determine that they were separate documents it's i don't know for sure what documents that the probation officer was using when it wrote the piece when he or she wrote the p s r however there is a complete for this underlying charge or the underlying criminal case that was added to the record of the two thousand two hundred and fifty five stage so it's part of the record in this appeal but it's not relevant to the question of what the sentencing court did at the time of sentencing thank you and just to return to the point pres vargas is exactly this case and would have made clear that this i pads in court was prohibited from considering the information in the p s r without having the shepherd documents before it or having any way of verifying whether the court records were in fact shop or documents and  volatile and just to go to copeland the government really harps on this one sentence and copeland where they talk they refer to court records in the p s r but if you read copeland as a whole it's clear that copeland is shepherd documents and the government suggests that we can assume that the denver district court records referenced in the p s r worshiper documents but that's not the case that's contrary to perez vargas and we actually have reason to believe that that assumption doesn't apply here because the facts that are in the complaint that the government is now touting that became part of the record and the twenty to fifty five pages the proceedings that complaint actually is not a chef for talking about it and because it charges mr lozada with a different offense than the offense he pleaded guilty to he didn't admit that the facts in the complaint when he less likely than that the district court simply applied the residual clause and so given the law at the time of sentencing it's more likely than not that the district court sentenced to an armed criminal like sentence based on its conclusion that his conviction for nd degree burglary qualified as a violent felony under the residual clause and therefore johnson occurred when mr lazaro was sentenced we now know that that johnson error was not harmless because mr as i know is not in fact an arm for a criminal and so we therefore ask you to reverse the district court and send this back for  resentencing without application of the arm career criminal act thank you thank you subject to call and if connecting to call everyone have a good day thank you