recently in johnson and mathis this court is is bound by the supreme court's decisions even if it perhaps disagrees with some of the reasoning and i think the government have been going which by law for a while is in law school years we've been saying well he just broke and entered into a fence that's not burglary come on that it's a car lot that's not burglary and the state of indiana says no offense is a structure and so when the supreme court says we need to limit what burglary means in this statute to generic burglary not these more expansive interpretations we're bound by that and we have a real mismatch between what the supreme court thinks burglarious and what most of the states consider to be burglary but that's a mismatch by the supreme court and by congress now until just last year with the johnson decision that distinction didn't really matter and that's the james case that was overruled by johnson the supreme court said look florida burglary allows you to break into somebody's curtilage and curtilage is an enclosed area around the home that's not generic burglary under tail we we can see that but this is the wrists are similar  s should still be considered a vial felony under the arm for criminal act and so we're going to find that that distinction generic versus non generic doesn't matter johnson removes that critical part of the statutory frame  indiana burglary would have been non generic burglary but it would have been saved by that residual clause that it involves the risk of injury to another that's no longer there all of the courts of appeals to  exactly so what what this case really needs when we talk about indiana burglary is we either need a legislative fix by congress if if we want indiana burglary to be a violent felon congress needs to say it or the supreme court needs t building or structure structure has to be something other than a building right well maybe he or dwelling house could be a barn could write could be a silo that's still building well yeah right i would think anything with with walls and a roof is a structure and maybe not a but about if it was temporary you drove in from indiana right illinois from illinois and down south all right so you parked in a parking garage well i parked in the lot which under indiana if i broke through the lot i'd be committing burglary you know those parking garages jack sure you can't you kind of go up and back it up and back sure and there are walls right and there's no roof right that there is a fence well there may be a fence there maybe a door that you have to go in to get to the elevator to go up right right is that a structure within the meeting with the meaning of tailor generic  it's a good question here's my peers i don't know the answer to the what i think the supreme court was saying with building your structure is what some judges have criticized in terms of legal jargon which is we use two words for the same thing and because the reason i say that is because the supreme court seventeen years later and jane says that fenced in area the curtilage is not a structure that it's not a building or structure the discussion of what is a building or structure seems to be around buildings i mean i'm not i think you brought up a good example of what might be a structure but what the supreme court has said is this particular issue the fenced in area that's not a structure and it depends on what the fencing areas for if it's to protect your flowers in your lawn maybe it's not a structure but if it's to protect a bunch of cars like a parking structure maybe it is a structure right but i don't think indiana law makes that distinction i think what the case says i think this is gray is a fence is a structure it doesn't matter that the decisions have come about because it's been well it's the car lot or it's  you no longer miller or whatever but what the indiana court has said is it's a fence and that ties into the earlier elements of breaking or entering breaking or entering what and they said well as long as you break fence doesn't matter what's in that area that that's considered burglary in the supreme court and james again says no that's not her i'll touch briefly i would love to have fifteen minutes to talk about jurisdiction and the multiplicity issue that's come up but what i would ask for there again we've got a sort of on developed record here i do think that because indiana burglary is non generic this needs to go back to the district there was not simultaneous session of the firearm and ammunition but the argument was raised some will respond to the district court and make a ruling on that so we think that the district court should address that question first and not their further question indiana berkeley qualifies first why james doesn't control this case two about indiana law than three i would like to address judge finance question first james addressed the florida statute which included curtilage which is certainly prodder and florida has to find curtilage to include non fully enclosed fences which is broader than indiana so therefore it does not control this case that leads into my point about indiana burglary indiana has led kurdish  enclosure what perry decided and or on a page for his reply brief is incorrect great involved a fully enclosed french structure if you look at the facts in that case the police officer actually had to climb over the fence because it was fully enclosed now it was did not fully enclosed the entirety of the property nor was it attached to the building that's all the indiana court was saying however it certainly was fully and close the indiana courts of followed up on that with calhoun saying it's dubious than just taylor so shepard said building or enclosed space so it's not just building or structure sheppard says building for enclosed space i think it's hard to conceptualize what an enclosed space would be other than something like this a four sided fence affords something like that i think the rule two terms used in the disjunctive means that that second term has to have a meaning separate distinct from a building and that's a big reason why all the other the circuit courts have ruled the other way they are wrong because they're reading and i think what it perry is doing here is trying to rebuilding and structure building an enclosed space to mean the exact same thing and that is not how we interpret what the supreme court says or just statutes in general there's no question that i would just like to make a couple quick points on the multiplicity be it jurisdictional or consecutive sentences not so much the arguments of the government has always pressed the unconditional guilty plea being the waiver so the multiplicity count is not for this court if it were i think the reply brief essentially c implicitly that that perry would have had to obtain and did obtain the firearm and the ammunition at different times and whether he obtained the firearm first or second they were not obtained same time that's proven by both the surveillance video and the receipt government is saying well shepherd requires enclosed spaces that's what florida law requires as well but florida burglaries non generic because that fenced in area around a dwelling or a building or a structure is not itself a indiana burglarious non generic would ask that the court reverse the sentence and remain for reasons i thank