good morning your honour's laura davis right politan appellant timothy phillips if i could reserve three minutes for rebuttal please may it please the court in james versus the united states justice alito in his majority opinion talked about the importance when looking at florida's attempted burglary statute to keep in mind that it was an attempted burglary for a reason that implicit in that charge that conviction being on somebodies record was that this person made the attempt was apprehended most likely during the attempt was prosecuted and convicted and so implicit in that is that somebody was present somebody intervened whether that was law enforcement or the business owner or the homeowner a third party something stops that defendant here in mr philips case what we have implicit in a conviction for florida third degree burglary is that no one was present there was no weapon there was no assault there was no person and under the reasoning of james which was decided after matthew's united states versus matthews was decided in the eleventh circuit we should look and recognize that in the analysis is that mr phillips was convicted of a crime that necessary necessarily had no person present but what do you do and did the eleventh circuit rule on this and it did your honor in united states versus matthews which was our tobar of any reason we should defer to the to the core that has florida and yes your honor  that as we do we lose and we would however as then judge ginsburg ruled in korean airlines disaster each federal court has an obligation to engage independently in reasoned analysis and as in washington energy company versus united states the policy of blind adherence to the decision of another circuit apart from any i'm not suggesting that we should do it blind let's have a look at what what was their analysis their analysis very much looked to the powder keg theory that is discussed here in the six circuit in covington they talk about this is a charge situation it's a crime of stealth something could terrible could happen however they ignored they did not discuss at all the actual language statute where it discusses the lack of a weapon the lack of an assault the lack of anybody being present but about the i'm sorry go ahead it's a question of whether you look at what actually happened versus the risk that was posed about what what by the crown that was could be correct in part yes your honor well the the residual clause covers risk not just what actually happened right correct it covers both and that is what justice alito discussed in james was that he had to recognize yes you could recognize the risk but that you also needed to recognize what was inherent in the crime and in his case with the attempted burglary somebody intervened and in the crime of third degree burglary in florida no one was present so if we adhere to the powder keg theory that this is a charge situation and something horrible could have happened then yes florida third degree burglary pretty much any crime you know shoplifting is a stealth offense that would theory carried to its logical conclusion main that some offense would fit within the residual clause and sometimes it would not the pinning of what actually happened during the of the ends and that certainly not what i intended is it it into visible statute it is and so shepard documents for instance in the united states versus i will butcher this key so r t k i e s e which is the unpublished sixth circuit opinion they were able to just to determine that the third degree florida statute burglary statute in mr workups cases was edge in eric burglary because the sheppard documents reflected that he had broken into nine curtilage portions of the  this part of the statutes not divisible right it's just one it one definition right it's one you hear it's the visible from the other you know the other provisions but this particular provisions not divisible into his camp you still have the divisibility of what entails secondly i don't understand why you would even argue that was divisible isn't helpful to you for it not to be divisible it is helpful but in all honesty your honor that the divisible portion of the statute is are you breaking into the curtilage or the actual physical building but you're talking about now you're talking about the visible between whether someone is there or not in the actual thing that they're being prosecuted for it doesn't say you know this much for someone's there are not or this one or actually it does but your every once agreeing that you're under the part of the under the end a visible part of a business statute correct your honor i'm not arguing that portion is divisible that portion is indivisible i don't want to interrupt to give them three of what what what what do you do with the part of james that refers to passers by i think you then look again to what florida statute encompasses that but you could have a passer by in a in an uninhabited building who would say oh my goodness someone's trying to get into the building i'm going to go and stop however where i'm going to call the police and the police are going to come and stop or you can have a passer by see that somebody has is walking up the driveway that doesn't have a fence across it or walking through the space in the fence where somebody was able to put a boat or pushing open you know a gate that's been left ajar there are things i'm saying i don't understand the difference between the only and james what you want to hold us here if the difference that you're articulating is that no one's there because james seems to be concerned not of about not only about who's in the building but who might pass by the building and people can pass by a building that has nobody in it the difference is the attempt statute in florida requires more than just preparation and that if i'm walking up the driveway to steal the yard gnome you know that may or may not fall under the attempt statute because perhaps with walker much talk about the actual statute issue in james as the analysis of the core which seems to put emphasis for this purpose by passers by it's passers by noticing something is going on that does not appear to be legitimate you have somebody with a crowbar trying to open a door or window somebody working at a lock that's what you have in this case right it's a break  what the pre sentence report the asian friends of the state of the statute know what you can accomplish that stack the violation within the statute by walking up the driveway by going through a space in the fence by pushing open the fence and stealing something out of the are at the curtilage and entry is there someone in the building then it's a crime of yes however that's because the person in the building is going to catch you when you get in there might see you when you get in that would be congress's rationale including tradition have to distinguish that from somebody outside the building seeing the person sneak up on the building i think there's a difference between sneaking and  mean if i'm dressed in all black and i've got empty bags with me that's going to look different to somebody a passer by than me walking up to the house which is also possible there's case law in florida discussing that these things are purposes of the armed criminal statute as set forth in our briefs the defendant was originally charged with burglary but welling but he was allowed to plead to a lesser included offense of burglary of a structure under florida law and in this way the a c c is a little bit different than the career offender provisions in the guidelines the guidelines require a dwelling more residence the guideline for a career offender in judge you really this doesn't become of a generic burglary only because of the business about the curtilage to sell anything that keeps it from being a generic burglary yes your honor and tailor the supreme court in tailor when it analyze what constitutes a generic burglary went into that and under the analysis of taylor the florida statute would be a generic burglary but for the fact that a dwelling wore a structure there both the find the same way can include the curtilage now in james the supreme court looked at florida law in terms of how it interpreted curtilage and it found that florida law case law supreme court had very narrowly defined curtilage under the florida statutes and therefore that didn't pose a bar from james deciding that an attempted burglary even a burglary involving curtilage constituted a violent felony under the residual of the arm career criminal act there wasn't the limitation about nobody being there in those cases so that's the issue here yes judge but it's unclear from james you can't tell from james reading the opinion of what violation of the federal excuse me of the florida burglary statute james committed in one part there is a notation that he burglarized a dwelling but under the florida burglary statute you can commit a burglary whether or not the dwelling is occupied or on occupied but if i'm a say breaking into a warehouse where you don't even get into the building  a violent crime any more than shoplifting in a television store or something like that but you know i'm wondering if there are cases that force us to come to that conclusion and if they are which cases force us to that conclusion then james does your honor so you both relying on james does james really force us to come to the conclusion i mean here james we don't have this aspect of the crime that nobody's there right you might definitional a nobody is there and james rick does talk about passers by but it also talks about people in the building and so forth as part of the risk that risk is stripped out is probably a big part of the risk part of the risk is stripped down but on the rest is but but when you take away part of the risk doesn't that make the wrist small her it does it does affect the degree of risk just so so you would say that well we might look at james and come to the conclusion that this is a violent it's a standard violent felony but it doesn't compel it true we just have to sort of say well you know there's some gray area between james and not james and and we'd have to say this is james or this is not james less risk which you just agreed to judge if you look at the reasoning of james which aims it was first of all it said congress single out certain a numerated felonies burglary arson and offense and why did congress out of all the universe of crimes pick these statutes and judge alito said they picked it out because these types of crimes also often involve the possibility of a violent confrontation so that's the first argument the second argument is james said the main risk of burglary arises not from the simple physical act of wrongfully entering into another's property but rather the possibility of a face then that reasoning applies list strongly is that true judge i don't know that you can make that assumption because in james no you don't right where in the statute no once there are a judge we don't know whether or not no one was there in james right but we do know no one was there in this case so if you're talking about risk not talking about what actually happens be talking about risk would seem like the risk would be less except for matthew's judge which is the eleventh circuit case which  specifically that this statute ran on occupied structure constituted a violent felony and to reach their analysis in math his yes there is judges the same type of analysis that the supreme court conducted in james that analysis is i thought matthews was mainly about curtilage it is judge but when they get into it and this is it twelve seventy five they say regardless of whether a burglar breaches the roof portion of a structure his unlicensed entry into the enclosed area surrounding the structure may bring him into close physical proximity with the same persons he might encounter if you were to enter the structure he might come into contact with the property its owner's occupants or caretakers his close physical presence to the structure could lead an innocent person to investigate why he is there and his presence alone could reasonably be perceived by any of these persons as threatening either the innocent or the burglar might react violently in short the burglars presence in the curtilage of the structure presents a serious potential risk that violence will ensue and someone will be injured and if i could judge it is that is there other than james and mat ws is there anything at the math is not binding on the soul of what you read is addresses the issue and we give and i respect the judgments of other courts is there anything else that i mean if james doesn't do it for me and matthews doesn't do it for me this is anything else forcing me to come to the conclusion that i'm just another if i could cite to another part of james judge and you had a question about the difference between a warehouse and a residence at two  nine judge alito and james says as long as the offense is a type that by its nature presents a serious potential risk of injury to another is satisfied satisfies the requirements of the residual p distinguish shoplifting not the residual clause doesn't get us there but why not because it's not the type of activity that involves the serious potential risk of violence burglary does and as analyzed in james alito saying an overt act directed towards entry of a structure he doesn't even say dwelling he says structure satisfies this test and that's just an overt act that's just an attempt we've got more than over that year we've actually got the burglary decided to see issue i think the eleventh circuit is the only circuit that's analyze this specific provision of the of the federal bird order burglary statute if they looked at finches or mirrors from the first circuit i have not judge i believe it also and i believe i believe it's helpful to your position thank you and judge rogers i would also point out that part of the analysis in james is talking about whether or not the arm per criminal statute requires metaphysical certainty or simply a potential risk and the statute is phrased in terms of potential risk not every burglary is going to involve the risk of injury to another  that i fall back on both james and matthews judge is under the scenario of a burglary you've got a potential for violence because you've got someone going into a structure that can be discovered violence can ensue very naturally under those individual the third party the interest the building then it doesn't because it ceases to be this kind of burglary but it's but the risk would have to come from the the other person confronting the burglar at some other point out sad to structure your strategy and so that makes to just seem i don't know it certainly makes it less likely to be doing a serious potential risk you know i can envision a lot of situations where someone just going into a building that's discovered from the outside we're just coming out of a building that's discovered from the outside now the police arrive and say come out with your hands up they never actually enter the building so sonata pond certainly they're potentials i mean there's that kind of potential there's also the potential that the person will be involved in a confrontation while accepting the house the stolen goods there's a chance the homeowner will come home and enter the house but encounter the burglar this chance of passing back i mean there's just there's yes there's risk quizzer it's him but you know certainly it's not a strong case for serious potential risk and although it might be enough and i think think goes back to john trotters argument is the risk here last because of sun occupied and i would have to say probably there is less risk because you don't have an occupant of the two online but that was mcavoy but mr butler made whether it takes it out of serious potential risk and whether the reasoning of james ought to be persuasive to us about the risk even though it might be less here is another issue and i would just point out that the supreme court  in looking at this didn't say ok the most this risk is from the occupant it grouped all of these wrist together all of these third parties together as posing a serious potential risk of injury and that's where the less the panel has additional else will before you start how much difference does this make i'm sorry how much difference does it make in the number of months sentence five years his guidelines would go from his  akka are above the statutory maximum slightly i think he starts at one sixty eight months and so his guidelines would be the statutory next move one hundred twenty months so makes a five year difference in the sentence well it mocked it might you know we don't know well in the guy at the guideline range would go up five years of course no available sentence he received one hundred eighty months  what you are saying about that no you're only you are correct it would be three years and change from his guideline in whether it would also be within the discretion of the court district court whether or not right now it has to be a minim statute that talks about no person being present in the structure structure in that case and compass is both the physical building and the limited curtilage so when we talk about somebody committing this crime and nobody being present it's not just nobody's inside the physical four walls of the building but that also there's nobody in the yard nobody comes into the curtilage as you might imagine police officer wouldn't stand on the sidewalk and say stop where you are and then come forward to me gently i would also point out that the section of matthews that the government cited about the risk involved in the risk that is examined is that same powder keg language that this court rejects in covington and that it's an escape case it is an escape case and it does like this difference going in and coming out sort of the opposite prime  in in the others a crime of coming out or they're breaking into the free society and in a crime that one of the few that it's ok for that person to be shot or other  stir physically confronted even if they just walked out an open door because they are escaping from you know a secure facility even if the secure facilities and very secure so while you have somebody who can do the same prime the manner of the same crime in covington it mentions pushing open a door that's a jar if somebody pushes open a gate that's a jar and walks into the kernel it with the intent to commit a crime they have committed florida's third degree burglary and so they are when when the when the action happens in the moments afterwards the escape he is really indistinguishable from the general public or as after breaking in the curse the whatever the intruder after the intruder after the intrusion occurs the intruder in the area that might cause a confrontation so there's a difference between escape and intrusion isn't there in that there is however again you go back to the not anybody being there somebody who escaped from a facility they don't maybe not they don't have a driver's license but they may drive a car they may commit other crimes it's almost like a breaking into free society if the panel has any other questions thank you i would rest on my memory we appreciate the argument both of you have given and will consider the case carefully before you late to get in you didn't have anything or did you know why i think that the two of you question