case number four this morning is united states against foster we're here today to discuss indiana's the felony aggravated burglary statute and act of our glorious morning i think that if we try to view this case in a narrow as possible way the question before the court this morning is whether or not indiana's expansive definition of dwelling causes the statute to fail under mathis and i think that if we look at the case in that very narrow light that we can see that it does and the governor has conceded what do you want to do with united states against every perry holds that class c burglary in indiana is eric burke and all class b burglary is is class c burglary plus a weapon or a dwelling which doesn't negate any part of generic work so i don't see how we can rule in your favor unless we all rule are but your briefs don't even mention perry not your opening brief and despite the fact that both the district judge and the united states relied on perry not your reply brief what do you want us to do really well respectfully i don't think perry is at issue because this is the way that the indiana legislature chose to draft building or structure is definitely in class the burglary but then we've added what i'm thinking of is the plus something else how does that take it out of generic burglar because of the way the indiana chose legislature chose to draft that year and the court is is that's where that issue squarely presented in the court can't avoid indiana post class cheap we take it as given from and then the indiana statute says and the crime is committed on a thursday with that take it out of generic burglary i think that there i think that the government has tried to rely on  would say perry was is not at issue in this case what is an issue is the way the indiana chose to draft the definition of dwelling and when indiana chose to adopt the definition of two and it purposefully expanded that definition to take into account explicitly things that it chose not to take into account in the c felony porson of the statute which would be at issue if this were kerry but it's not at issue here so what we are faced with is perhaps poor drafting on the part of the indiana legislature but the that's what we are faced with is still how does indiana defined whiling and indiana's definition of dwelling take it outside of generic burglary and i think the very clear answer to that question is that it does when indiana defined the sea found me it said building or structure and this court i think rightly in perry said that falls with engineer very however when it developed it aggravated portion of the statute it chose to adopt it didn't set it out in that statute it chose to adopt a whole new statute that defined the way twelve wing would be used within that statue and we can't ignore the fact that they said building structure other enclosed space permanent or temporary movable or fixed that is a person's home or place of lodging we can't we can't read those words out perhaps indiana legislature drafted poorly but for purposes of the  career criminal act and a pretty stunning increase to mr foster sentence we can't just read that out of the statute and i think that indiana's dwelling statute purposely includes things like an r v or a boat or a car or a tent because what indiana legislature wanted to encompass was the sanctity and security of a place of habitation and they're not concerned with whether it's a building or structure this court  your honor kept asking for what and what illinois case could support a theory well in this case the government doesn't have a case that can support the theory that indiana means anything other than a habitation they don't mean building or structure what they want to protect is the same city and security of someone's home and purposely when they adopted that one portion of the statute they expanded that because of that concern with someone's home and we have direct and clear guidance from the supreme court on this that a building or structure excludes all things mobile or transitory so i think this the gristle case from the ninth circuit is on point the in the indiana statute makes the same sort of expansion that the court found inappropriate and gristle but it just doesn't limit itself by listing the possible locations it's more expansive by saying other enclosed space permit or temporary movable or  so that points to the direct conclusion that the twelve in portion of the statute is overbroad and the second the government has already conceded that it's internally indefensible so i think if we look at this case in the narrowest possible light the wilding portion of the statute is inappropriate for use some of the arc or criminal act i think there's a separate argument as to whether or not the aggravated portion of the statute itself is divisible and i think that gets into a very complicated discussion of sort of what did mathis mean by elements what do we mean by elements do we mean like if the jury has to be unanimous to be mean statutory construction do we mean how the cases pled but i don't think that this court even has to reach that i think the court can say we're assuming without deciding that portion of the statute is divisible but because the dwelling portion fails we would you could really mr foster saver and if there are no other questions i'll research the rest of my time i'm sure there's may please the court brian write to the united states would start by saying that as asserted in our brief perry controls this case see burglary as this court has already held it's just a generic burglary and twelve and does nothing the class b felony do well and does nothing but constrict and explain what types of building or structures qualify for at the felony we would disagree to as we heard earlier that the indiana dwelling includes r v s or boat as indiana judiciary has interpreted dwelling must be a settled residence where a family sleeps functionally interconnected or contiguous with the family home which excludes any sort of vehicle that the supreme court has said otherwise to whatever extent i think touching on what we've heard earlier that probably indiana was intending to include mobile homes which are as i won't beat a dead horse on that there  very quickly i would just say that the indiana test for whether or not something unsettling does not depend on whether or not the structure is interconnected to the family home every indiana case again council i think on both