sentencing guidelines interpretation case specifically interpret ing the meaning of a crime of violence under the career offender sentencing guideline for b one point two a received what turned out to be the maximum he could hundred twenty months guideline range would have been one thirty to one sixty two but it was maxed out because the arm career criminal was eliminated the career offend that the that is required we believe here is that you have to take the what is called the modified categorical analysis the statute itself the nevada burglary statute this is a burglary issue case and whether whether the burglary conviction  mr matthews obtain and you still haven't is a crime of violence the statute in nevada is overbroad it includes such things as vehicle stamps and other or other objects if you will or other areas that are clearly broader than the generic definition of burglary therefore the statute doesn't answer our question you have to go to the charge under the guidelines you would then go to the charge itself and here we have a charge that mr matthews  me ask you a question about that the the federal test is worded in four v one point two way there's a catch all phrase at the end or otherwise involved conduct that presence of central physical injury to another or when after a crime of violence but how do you get around the or otherwise involved conduct the percents tests or physical injury to another in the combination of the burglary with the battery i'm a little confused on that if welling but i know from the charge that he pleaded to that it was occupied yes and that would seem to raise the same danger of violence as a dwelling because for a while i owned a condo in florida but i did not get my the condo in florida i just sold that through happenstance and never occupied it and i owned it so i would never say that i occupied it i would say that i owned it supreme court uses blacks i agree with your honor that there can be more general definitions of occupy you're absolutely right i guess that it's that when you wanted speech you were talking a moment ago you were using the word occupy and it's ordinary sense of being i think there's a there's a there's a risk in the sense or danger of being loose with language some lawyers just have that rest and i'm one of them but this court has to look at the at the definition and has to apply what i'm what i'm thinking about frankly is there are many localities were localities certainly at the area where i live where most long term residents have guns and that you go in if a burglar is who goes into a place where there are people there cabin in the winter where nobody is there and if the burglar make sure nobody is there then there will be a gun and that's what would ordinarily talk about it we wouldn't say the occupied building means  impose a sentence at a maximum of one fifteen right yes or are you telling me that we cannot remain on through the district court with instructions to do a complete pre sentence report and recently the defendant properly the thing that concerns me there are other elements in the guidelines it still could take this up two hundred twenty we're talking about a from the max to the statutory max ten years the guidelines for max is one fifteen and we're only talking five months difference and i don't know whether there are any other elements to the sentencing that would increase the sentence otherwise and i would feel uncomfortable doing what you suggest i would if i were to accept your argument i would prefer to just go back and start with a pre sentence report give the opportunity to both parties that have been put in it and have the district judge fairly so it is a significant factual allegation that's been made by the authorities that the building was occupied it's named by a person who doesn't say twenty or so years or some public entity it names a person that's occupied also isn't i would it be consistent with your interpretation what you're putting before us if cheryl riley was the less the a store in a mall and the went into the mall at night when nobody was there and broke into or stored stalls them purses or whatever she was selling that would would be a building occupied by sheer around like it would not i believe because you look at the analysis that was done by the taylor case define twenty four easy and it's important that case is important because the guidelines themselves recognize that the forty one point two crime of violence definition which derives from nine twenty four ok i take your point on that i'm getting at the distinction between burglary in a dwelling and burglary not niggling with traditional common law the distinction between more and less serious burglaries this is more or less dangerous and you might recall the jailer in every check at that and they said they said as i indicated that they included commercial spaces and i would know it's other cases that have defined it as the wilson and haskell cases noted that the commission has never bothered to limit this in fact they have rejected amendments attempting to independently found under the otherwise clause that the particular building because it was occupied and that was sufficient for it to be a crime of violence under the provision involved so i think under the  dwelling it's always on the well and in fact that's been the law that is the law tailor does not control this is a different case there are procedures may be useful to help help here but the substance doesn't control and i