the court these two look peals raised the same primary issue and that's whether a prior wisconsin burglary conviction counts as burglary of a dwelling that would make it a crime of violence under the sentencing guidelines and that essentially turns on whether the statutory subsection at issue here is divisible because that subsection criminalizes burglary of any building or dwelling in the key to th issue of is to focus on the the real goal here and that's to determine what was the defendant convicted of that is why we have the categorical analysis in the first place because the guidelines require us to look at the prior conviction and that's why divisibility matters it's why we only go to the underlying documents when a statute is divisible because we want to determine which ultimate conviction was a broader than that the conviction was for burglary of any building or dwelling and that's because we have to look at the elements of the offense well that's what the statute says correct you're right but that's also the the federal interest is and whether it was a home rather than where else that's correct but it's whether the crime is burglary of a home whether versus burglary of a warehouse that's not what the crime if the crime only know from the initial filings in the you know the ones who are permitted to look in the state cage that was  can look at the charging documents to determine the crime of conviction but into camps the supreme court repeatedly says that what defines the crime of conviction are only the elements of the offense they cited to the richardson case the supreme court case on jury unanimity talking about the critical nature of an element versus simple facts of the case because any criminal complaint or information and wisconsin i assume in other states is going to give the factual basis for the prosecution allegations so that's the prosecution's theory of the case but the question is what is the crime and the crime can only be defined by the elements and here whether the particular place that was burglarized was a dwelling was not an element of the offense it's not something that is jury would have to be unanimous about it's not something that the defendant would have to admit a plea hearing it's not something that the court would have to make a finding of at the end of a trial or police hearing or anything before they enter a judgment of conviction and that's because the crime is broader than that you know it's a single subsection w the pleaded right now here your honor they were charged with burglary of a building or dwelling under nine forty three ten one and a again and the allegations of the complaint the prosecutor alleged that a particular time in a particular place and that place alleged in the information was a dwelling they committed this crime but again it's not an essential elements of that crime and what they were convicted of at the end of the police hearing is burglary of a building or dwelling that's also the crime that appears on the judgment of conviction it's certainly possible in a complaint and you know it's come up in some of the cases that we've cited in the briefing you know the prosecutor could be even more creative so you know they charge someone with burglary of a building or dwelling to wit a cabin to wit a garage and that just sort of demonstrates that the essential elements of the crime is the burglary of a dwelling which makes it fall under the subsection of one and a versus the other subsections that do talk about distinct places that can be burglarized like ships or vessel or truck or trailer forth alternative means of committing it including intentionally entering any one of the number of listed places in the fact that burglary or twelve thing is in one subsection and railroad car in the ship professor and all of the other enclosures are in other separate subsections doesn't make the separate separate subsections separate elements they're just different ways of committing the offense of burglary and a whole bunch of different ways of committing burglaries and on the elements are intentionally entering one of those enclosed places without consent with intent to commit a crime dwelling well and over group rather than billing i think it just has to do with the history of the statute your honor it there used to be of course common law burglary and there was a higher form of burglary for burglary with whiling and then a separate crime for burglary of other buildings back when that was true there were cases talking about ok what's a dwelling versus a building but since i think that the fifty's or so around the time that a lot of states changed their burglary statutes they put them together they kept those terms why do they keep those terms presumably because they were combining these two because they're combining these two statutes but it's really not burglary or convict or a hall or has to pretend there's no difference i would never suggest that a federal sentencing judge shouldn't be considering the facts of the underlying case and i think that's going to be relevant in every sentencing both of you know was the burglary of a home was it a burglary of some other building was there a gun involved i mean it could be that there is a burglary of a not home y significance because it talks about various different crimes and the supreme court has held that burglary is a crime of violence when it's committed against  home but not when it's committed against another building what a question is if the person is in wisconsin and is convicted of burglary that happens the burglary of a of a home that for this federal law military it would have significance and discussing sentencing what i'm saying it doesn't have significance and under the wisconsin statute is simply in defining the crime of violence under the violence get a heavier so it's so that means for federal purposes it's important to determine whether it's a bird river holabird wary of the kind of building  and the complication is that the federal courts are not permitted to look at the actual record to see what kind of burglary it was but it it so the question isn't did the defendant burglarized the home it's was he convicted of a crime that's defined as burglary of a home and the only way that you can find that according to the supreme court into camps is looking to the elements of the if the elements of the offense and right if we if we read the camps for everything that it's worth and find in your favor then every state that does not have a separate crime of residential burglary anybody who's convicted of what is in fact a residential burglary that conviction doesn't count for purposes of the guidelines  because the state doesn't define the crime that way that's true and that's happened and that or seems intentional with that mysterious footnote two of justice cubans opinion which is fairly but if you'd like to offer a way to reconcile that with the text of the opinion and i'm all ears sure well well let me first just say there are plenty of states that dot separate out berkeley of the twelve and those cases don't i would beat the guidelines for those and there are states say it doesn't matter whether something is an element or means that's sort of what the government's arguing here it's one of the documents that the court is ready to move to the judgment of conviction and the statute of conviction and then where the statute is divisible then the court may turn to the shepherd documents to determine which crime the defendant was convicted of well isn't that isn't that what what the court know one sentence no it's based on i mean there's in the federal court there's richard sennett and shad in state court there are similar cases laying out how you determine whether something is an element how you determine whether it is or how do you those two different crimes because wisconsin doesn't define them as two different crimes like well i'm actually banking to define them is to you have to have a separate section of the statute which says there are two separate crimes no the question is whether the jury would need to be unanimous on that and if this court has any question on that issue if you agree with the federal law proposition that's something that you can certify to the state court and it's something that for any crime if of to camps it's these are not separate elements and therefore the statute is not divisible and therefore both defendants here were convicted of overbroad statutes and so the case that should be remanded for that may please court kevin burke on behalf of the united states district court judges in these two cases correctly looked at the east at the judgment of conviction where it's so early laurie of building for two welling and then looked to the charging documents to see which it was the statute doesn't create more than one crime does it and it does your honor in that it could be burglary of a building which is one type of honor was that if it worked like a federal statute you would have just thrown all these different enclosures that can be burgled together wisconsin parses it out in different subsections that's really of no consequence it's very similar to  here and i don't want to read too much into your question on it but it almost seems as if you're suggesting that the camps effectively could overrule shepard which supreme court was quite clear it was not right i mean  it put a new take on it if we go back to what the camps was really addressing the council was addressing a statute where the element was actually missing unlawful entry right wisconsin is not missing an no not that you have to have alternate elements in describing what it means to have a defensible statute we can just ignore all of that there's undoubtedly a tension between footnote two and the main body that different courts have identified otherwise we wouldn't have the circuit split so what justice alito was pression lee addressing was concerned that the main body of the camps might engender some confusion and what footnote really to to really is that is a conversation that the majority was having to address justice alito is concerned saying well if we break it down into means versus elements distinctions that necessarily often will will require parsing of state law this is this is not at all what the main decision is is doing and was addressing justice alito is concerned that whether you call it means whether you call it elements it's really of no consequence if you have an ambiguity you're going to look to the judge through the charging document and so we don't look to charging documents and please come the crees and all the other shepherd documents to determine how the state defines the crime we look to the statute so it's an inadequate response to justice alito it's dissents and it's one that completely accept everything that is said in the majority opinion in the text of majority opinion then it means versus elements cannot be of no consequence it is centrally consequential because that's the distinction between crime definitions meaning what it is more than one crime in the statute or whether it's a single crime with multiple modes of commission well if we if we look at the wisconsin statute where it  says as a title is a mere title burglary of a building or twelve it doesn't say that it says burglary then it was whoever intentionally enters into any of the following places without the consent of the person unlawful possession and can see or to steal or commit a felony is guilty and then it provides a laundry list of enclosures you're suppose it defines a single crime of burglary you know it sounds particular element but i understand your expertise in this area but when we're looking at the at parsing state law which is it's in the random dissent to the denial of rehearing on bok notoriously uncertain inquiry but if you look at cases such as gonzales i would say you adapt your jury instructions to fit the facts of the case if you look to the jury instruction pattern jury instruction committees own guidance on what you do they do force each element they pay for instance or model jury instruction says the building showing that building and can be separate from one another what goes to the jury is the actual enclosure what goes to the jury the element what goes to the jury must be found beyond a reasonable doubt whether it's enclosed railroad car whether it's dwelling whether it's building so i defer to your expertise your honor but it sure seems looking at that at the at the parent instruction guidance the enclosure is an element well the fact that judges are encouraged to tailor the jury instruction to the facts of the case in order not to confuse the jury doesn't answer the question about whether this is a single could be charged for a single breaking and entering of the two elling it could not be charged as a burglary of a building and a burglary of that welling then you have to concede that it's a single single crime not two crimes well you know an argument that gets him into trouble under the camp's well our primary argument would be that it is an element but a secondary argument is if if the court were to address it as a means those those other cases that this court has decided post shepard but predict camps up would still be good law because the camps did not overrule shephard they had every opportunity to and they didn't and cases such as woods dismuke clip make it very clear whether you call it a means or call it an element is of no concentrate but to camps is thrown all of that into doubt it has for two circuits when you when you have to resort to a means analysis the government does not believe you have to resort falling only charged therefore all that would have gone to the jury had to sponsor a trial would have been welling the jury say this is the indictment early in the information yes raw information says unauthorized and she said yes and that's all it says in the charging language itself and there this is a jury trial would be an instruction that would be more specific the instruction would be as to what form the definition might take whether they would leave it to the jurors common sense or resort to a dictionary to say well it's an inclosure intended pretty human habitation would probably depend on what the parties and the judge decided upon because it's not further define by course but the case law seems to be pretty clear the pattern jury instruction the jury would not be required to agree that it was a two elling all the jury needs to have to agree on is that it's a building or two elling the facts of the case are that it was a dwelling so it really doesn't matter it all comes out in the wash but they don't have to make that judgment and if that is how you find your honor then then it it should be a reversion to the means analysis i'm asking you why that's wrong under the text of the statute that it's you know it's not an element of the offense that the jury has to be unanimous on whether it was a building or a dwelling if it's not only  thing build there are certainly dwellings that are not buildings factually yes but it has no legal consequence for purposes of the such a fence it's all burglary then it's a reversion to a means analysis shepherd it certainly could have and the fact that there are no we should has regard all that to camps said about elements i don't believe that it's a it's just it's just retarded the only way you have a divisible statute is if there is alternative elements on the face of the statue their and you asked me to explain why the supreme court word drafted the way it did but they specifically were addressing justice alito is concerned a very relevant conversation that they were having with that and very important think you know you can't read the camp's only footnote too but i do want to point out the footnote to specifically says that shepard rested on the explicit premise that the law considered there laid out separate elements of different crimes not means of committing offenses if anything's wrong well that's just flat out wrong but if anything it emphasizes that the holding of the camps is about elements and i just want to take issue with two other quick things that the government has added and that is again the charging language here does not only state wehling i mean the charging language is clear that they're being to both defendants were charged with burglary of a building edwards pleas hearing which is the only one on the record the judge never even uses the word dwelling in reference to the crime he only what i did an admitted to the probable cause the factual basis did me use the complaint to the probable plan i'm not sure if you did personally know usually the lawyers do in wisconsin so