gosh it was really dangerous and mean thirty up six bullets go right through the house and kill somebody you know and and i'm thinking the danger is just like arson which is in the statute and in that list of crimes in the statute with arson maybe nobody will be home you may think that the building fancy but somebody is there that wasn't supposed to be there you didn't know they were there you kill him and shooting at a home is like barker and in that maybe you won't hit anyone maybe you will but since people are in and out of homes and you can't tell whether somebody is home sometimes and i think i think what we have in this case is that it was an aggravated felony rather than a crime of violence and i think you have to use the the definitions that they give you in the career offender it doesn't matter if the person is there and there wasn't any evidence i believe in what we didn't get that far as to whether or not there was anybody in the house but you know in some of the other areas where they define crime of violence or talk about the use of the potential risk of injury to persons or property and in this case or in the definition in the illegal reentry section they only say described what happened this trial is shot down over the heads of some gang members he shot in the area when the bullet came down hit a house he did plead guilty to shooting at the house so i suppose that you know he had he had made it that he did it but the facts were that he was shooting in the air and it happened to hit a house now i don't know that you can really say that he intended or even assume that he might be hurting somebody that was in that house and i think you have to stick to the definitions they give you and they make distinctions depending on what type of federal crime you're convicted of and for whatever reason for the purpose of illegal oriented field somebody in the house it would have been manslaughter right it would have been reckless disregard of human life i would think probably manslaughter it might even make a m had been shooting at a guy and missed him in the boat went through but i think you have to look at the word element they say it has to be an element of the crime that there is the use of attempted use the crime has been committed you may have conduct that involves the use of force again against another person but it may not be an element of the about the definitions and i think if you lay him side by side you can see that in some areas of the guidelines you're going to have a broader definition of the same term than in other parts of the guidelines so to me i just look at what the definition says and then try to plug the facts and to let me let me ask you about a reading i tend to use or used in reading or used them generous reading a lot because it represents the way people talk if you say what do you have in the way of candy ice cream putting or other stuff you're probably asking about  and i look at this crime of violence means any of the following anything hooves arson burglary of a dwelling attempted use or threatened use of physical force against a person or another i tend to think that when they have these general words at the end it's kind of like my other stuff in the desert west use attempted use of threat use physical force against another so i look at the specific see what kind of thing they're talking about and i see arson and burglary of a dwelling now the reason the burglary in a dwelling is has always been treated by the common law as far more serious than other burglary is that there's a risk that somebody will be home and that there will be have a violent confrontation the arson at the same thing it may be that the only purpose of the arson is to burn uninhabited building and collect insurance but there's a risk somebody will be in there and will die or fireman will let you put out the fire and die and it seems like where the california statute definitions on my side but i think maybe the prosecutor has common sense on his side and i can't disagree with you that it seems that shooting a gun into a house whether  is should be a crime of violence but i quit is anything that guy he was a regular too but it isn't it isn't under the definitions that they tell us we have to use now if we start bringing in any crime that is similar to the ones that are specifically mentioned i think that creates more confusion more litigation as to whether or not it really meets the definition of crime of violence for this purpose so  we're supposed to follow those definitions plus they're contrary to the plain language definition be contrary to the   they just screwed up the definition i mean i felt that way before but i think again in order to have an orderly system of justice you have to rely on the definitions and the rules and the what the definitions the rules that they say they give you to work with why why don't they have the same definition for crime of violence in every section of the guidelines why do why do they have a different broader definition for a career offenders than they have where illegal  situation and a lot of times you're punishing people that haven't really done something that is most of us would think is a criminal act so i think maybe they're willing to give them a little more lenient see in the definition that might be one explanation i asked mike self that question why do they have different definitions for the same term and it's n other places will just say a potential risk given three persons why why did they add property in one part of the guidelines and keep it out in the others i don't know but to me you have to use what they give you and when you start trying to read in meanings that are explicit and when the when the language is very clear i is irrelevant they don't have to be there and so if you shoot into a building when they're not there that's really not a threat to that person to person it's a threat to their property but not to the person what if somebody had been in the building we're going to make a difference well now this is where i think you would get into the category approach as compared to the modified categorical approach and we should have gone farther i think judge mckibben was wrong in finding that categorically this was a crime of violence he should have gone to the next step and said applying the modified approach i will now look to see whether or not the specific conduct you know whether or not a person was in the building and we didn't get that far and that's why i think it should be remanded back because it may be that he would ultimately find that this is still a crime of violence by applying the modified approach and looking at some of the underlying facts but you never got that far and what you're asking  you tony stay around just in case we ask you to respond to something even though your time's exhausted didn't actually understand anything that you just said my apologies my name is robert don gifford number system u s attorney from the discussion about it and i did want to point out just a few things i would agree with some of the i don't know quite what i'm going to do on this and so i ask your opponent your question so i'm going to ask you here's when i read this definition that beat three little hard for me to deal with this language has as an element of ice when they're using element in a technical sense the use attempted use or threatened use of physical force against the person of another where the statute says being used for dwelling purposes whether occupied or not and if it said or any other than i could say what does in the same sense as a burglar cases since we are in the illegal re entry case one or two l one point two however the language in both for me one point two and two l one point two has the exact same language that has a many it deals with the medina and freely from butchering the pronunciation of pereira case the ninth circuit has repeatedly held that there are crimes that are in of itself may ellen excuse me emperor warga started you had it you had to have both elements so it had to be on the list and it had to have they threatened use so the court at that time under those guidelines  even though it is even even though it is in a list but because in those cases it was the consensual sex there are crimes that are in of itself inherently crimes of violence and the one sex crime of violence includes sexual abuse of a minor correct and it strikes me as not posing the same difficulties well it did when the cases were decided because when they were decided the guidelines then required both that it be on the list and it had an element of the use attempted use etc so the so at that time they said the argument before the court in two thousand and three or two thousand and two was that it's on the now have a list of crimes and we have or we have the the element of use to to interviews etc and i think that i think that's i think that's how the sentencing commission has set things up that and of course i added we have an element of the statute here another even though there is no requirement that someone be there or to required to show that there is an act against a person and while the language used while the definition of the other california i think that the the weiner case still throws the same amount of credibility the same sort of analysis because there was the same attack for the very same reason upon that california statute and i guess that's where the weiner statue can can come in and i know that there is some that there is there is some difference there is from the difference in the definitions however the the the language of this  the guidelines that's time when it was was decided is identical to two l one point two as it is today but they both included has an element of the use of tend to use or threaten used a force against another when you take so  guess i guess i've been thinking threat meant like if i grant that your gun at you threatens the use of force against you but this reads direct differently to me dropping big rocks off the overpass on the freeway yes your honor the the crime itself and i guess going back to that to the same analysis that was used with the consensual sex cases with medina my  would counter throwing snowballs at car windshields the problem is all kinds of things are dangerous but there are crimes of violence like drunk driving for example the supreme court just decided that  they district court judge is uncomfortable with a circumstance such as if someone is recklessly throwing snowballs or met maybe some of the acts would be would constitute such what even though taylor the i had contemplated that and i didn't think i didn't think that that would be one that the court would be willing to consider it would be better to sketch had had have used the language includes in fact at one time i believe  a whole lot of philosophizing it it just said drunk driving isn't a crime of violence for advice and and i'm not quite sure how to interpret and apply it in other circumstances the i think what that case got into was whether or not that was more or less that for deportation proceeding in the immigration court not so much as an illegal re entry but that i  think is for i guess for as far as a future argument which would be interesting why ask me about that the negligence driving in terms of that risk of killing people drunk driving is at least this great certainly comparable to shooting into his w house the thing about shooting is as opposed to driving is the mast the velocity is much greater or the bullet but the mass is much smaller and the  diameter of the bullet is a whole lot less square inches then the front of a car so you're just a whole lot more likely to hit somebody with a car that isn't even if there are people in the house and there are people on the road you're more likely to hit somebody with a car hard to hit anything with a bullet with a with a car with a dui it's just a dui in of itself then i think that gives a very  both sections and when the court said this is a crime of violence and it looked at forty one point two the first the first part included that now subsection two of four we want to point to has that's had the or the medina male a case of children under a certain age cannot consent to having sex with an adult so even though it may appear to be consensual it really isn't and so in that case that would be a use of force against the person of another and i think that this thing which is that case in regard to the what he just said about the whining case maybe i misunderstood but i think when it is very clear that that case turned on the potential risk of physical injury to another not not on whether or not  crime or with or not not on whether or not the element i'm getting i'm getting just when you read when you read weiner they talk about a risk of a potential risk of physical injury to another as one way to satisfy the definition of crime of violence and that that and i think it's clear from weiner that they decided it was a crime of violence because they felt or they found that shooting into a building created a risk to others i mean that's