mr goldberg we'll hear from you  you can raise that lectern and there's a button on the right there on your predecessor had lowered it so it's our position in this case must be remanded for the  make that walker determination in the first instance based on this court's walker case and in denying mr walker's mr unders at twenty two fifty five motion the district of physical injury the government argued on direct appeal that this court should rely on the residual clause and it's free for the courts the government argued quote this court a long unbroken line of cases has repeatedly helped with the commercial burglary constitutes a crime of violence under the otherwise clause that's page sixteen but let's just say for argument's sake you're right that this court did a law on the numerated offense cos i don't think that's correct but see what was going on at the district court i think that's both a walker and walker's project well let me ask you this is that really what walker is about if the if the judge subjectively said i'm sensing this person based on the residual clause but the law at the time was settled that the offense counted under both the residual clause and the force columns are you saying that the defendant would get relief if the judge said i'm using the residual clause but would not get relief if the judge was silent well i think so and when you think that's what walker requires that we treat those two people differently  i think it's a good question but if the district court is saying i'm relying on the residual clause exclusively and that's unconstitutional i think that's in the story i don't think the case law then has any bearing about wine that's my question maybe that's walker i'm not sure whether walker says that but why should that be the rule if if the judge had no choice but to impose the enhancement based on both the residual clause and the forced clause why shouldn't prevent i don't think we should be stuck in time and looking at all what was the case law ten years ago or fifteen years ago and the now becomes arbitrary because you have right now i think in this report people following walker there is a case that we cite in a rule twenty eight j letter last week and it is call the we have the letter but what do you mean they're winning a million legal case they apply test so i think that's a looming you mean because of the law at the time correct correct so far as hass call in this direct appeal  that's true on what you think they mean by generic definition generic burglary potentially yes but i think when you have them siding also the haskell you have this on does is no help there right it's silent but you do have the legal environment test which i do think really isn't that a question of law i don't think that's what walker hole i think is what about these post walker cases well i think embry and gawain vote on they say it's a question of law they do your arm but i think the i think you're concurring opinion and goal of an ox makes clear that i think the governing opinion should be walker because it was well but the way it works is you know the law is hashed out case by case and that's not how walker's benon applied well i think it hasn and other cases and again i have it's you know think so what's the difference i mean if it's sparse than it might be something there that would would tell us what district judge had in well there must be because walker remanded based on a sparse record whereas the silent record cases we've said we can proceed i guess the legal environment that i'm sorry by me that i'm clear i think all these cases should silent and and they were room left with a legal question what the legal background is why can't this court that and make the decision why send it back to to the district court to force them to do that and again i think that's the same thing we discourse on that issue you know i think that that consistency issue should be followed why should we go the other way and not remand any of i mean we have the record of what happened at the sentencing so we can read it and we can say the judge relied on one of the other or the record doesn't show and then where in the legal background i think you're right your honor i mean had walker not been cited the way it was it was a well i think a legal issue but i think walker held case law based on the arguments government's made and now based on contemporary case law well they've argued you mean they argued at the time that it was covered by the residual costs no doubt about that but the question n mailer and all these cases say it doesn't but those are later right and i don't know what the judge did at the time it's true it's true what's true that it counted at the time as a burglary that it could in the numerator defense i think that there was some back case law that was wrongly decided at that time right but that doesn't entitle it we've been through this right you don't get retroactive application of math  absolutely i think you have under walker i think you have the mandate to follow walker because not all of the those there were wrongly decided tases now that we know mathis right and you know  i mean if it's not retroactive how do we revisit that well i speaking english sometimes i don't know if you are you absolutely were speaking english i think it's a great point your honor the thing about this is if a judge says i'm relying on the residual clause and i'm going to sentence you to fifteen years because you have three burger complexions the retroactivity of mathis or miller is wrong right well that's my question why is it irrelevant if just because the judge says that if the judge down the hall says i'm required by circuit law to say this is an enumerated burglary and it's the same same same prior conviction why shouldn't they be treated the same well but they're not all treated the same you have a burglary of a building and versus a burglar even have a structure misery and you have all these nuances and so i'm taking to building guys ok in the in the eighth circuit said it counts as a generic burglary and it counts as a residual cost of what up in one case the court actually looks to the facts of the fence and one soon someone wasn't home and  that time and then there's another fence for somebody's home and so there's layers and layers of arbitrary that we can inject ahead and we can hypothesize in a hypothetical of how arbitrary that is and that's what i think where we're looking at a legal environment back in two thousand and five where burglary of a building was quite clearly a numerated felony under the arc or a criminal act and were a multitude of cases mostly under forty one point two where commercial burglaries were deemed to be violent felonies under the guidelines and at some point they became conflated to a certain extent but there is no question that when judge smith  the ruling in teller replied that is the unprivileged entry into a building with the intent to commit a crime there and was a generic burglary that had been the case since the one nine hundred ninety when that case was decided and was unchanged largely until mat i can speak to the legal environment at the time between two thousand and two and two thousand and eight i prosecuted nothing but gun cases under project safe neighborhoods during that period of time for the western district  missouri prosecuted most gun cases in the united states of america i believe in two thousand and five or two thousand and six here who handled the most gun cases in the western district in the story there was never a time where the word well and into for b one point two and consequently the a circuit had to look at that definition somewhat differently from the way they examine the word burglary in one t forty and ultimately they concluded that burglary under any guy essentially fell into the residual clause of four b one point two nevertheless that never changed the fact that burglary of a  holding the numbers at the very first case it cites is taylor you know i don't think the were an awful lot of cases the challenge the determination that a person was an arm career of our career offender under one twenty four so what do you say about the question whether this case should be remanded in light of walker i don't think district court i honestly don't think it needs to win in fact even if judge smith at the time of the sentencing that i'm relying on the residual clause we'd have to presume that judge smith was unaware of the fact that a business burglary or building a burglary of a building excuse me was not also covered by the enumerated clause we would have to presume he didn't know that law in order to make the requisite finding under walker that is that he relied exclusively under the residual clause and i don't think that can be set in fact if you look at the record the sense in transcript and obviously it's been quite a long time who what do we do with the part of walker that says it's a factual question and if the if the record is clear that the judge right in the residual clause how do we apply walker then certain extent and i say that because the transcript does make reference to the defense attorney who represented her under that quite clearly stated the circuit is against the defendant on the question as to whether or not th burglaries of violent felony for the purpose of nine twenty four that was a knowledged at the outset of the hearing judge smith then went on to say well i think you're right i think the law the circuit is going to plan on this issue and of course i'm required to follow the law of the circuit rule it moreover your honor when i came to this hearing so many years ago the only thing up actually the judge didn't even entertain argument for me but i did introduce the records of his conviction the only reason why i would have done that is to ensure that for the purposes of appeal that i made it clear that it was an enumerated clause conviction if we were relying on the residual clause there would have been no need to rely on the charging documents we simply would have pointed to the statute so to that extent there is some evidence and obviously it's not overwhelming evidence with regard to the caldwell case i did reviewed the ruling of that district court case and again where there was kind of confusion during this period of time it was  the realm of the meaning of burglary within forty one point two and unfortunately the judge in caldwell cited a long list of forty one point two cases for the proposition that the residual clause infect making back in the early two thousand and unfortunately i think she overstated what the legal background was at the time and while there was certainly some confusion with regard for b one point t that never really infected the on per criminal act because again we were dealing with a burglary of a dwelling we're always dealing with generic burglary i do have additional time left however i don't believe i have anything to add i would respect i'd like to start off with the issue that the government in this very case conceding pong emotional state that the walker test was going to resolve this issue and said that this issue issue and numbers that as a walker so i think it blows from that concession that the same result should flow is low and so i think that's what's troubling to me is that you know we  have the chance of having inconsistent results mr walker is currently from the district court he may get relief he may not i don't know but i think mr ayers out should be given the same opportunity to prove by preponderance of evidence that his sentence rests on the residual costs and just last week there was a another case michael smith in the western district missouri another gentleman with a was the saying in this twenty fifty five motion i think of you and his ruling walker i wasn't the judge on the case so i don't know you want to judge i thought you might have been the lawyer i wasn't your honor i was when you the argument calendar for this morning the court