statute is divisible with respect to the question of intent because illinois law makes it clear that a jury does not have to be unanimous as to the intended crime or felony there is but a single element of intent they can be predicated on his own neighborhood a conviction there's a possible way for here because of the issue is given away in the plea agreement and at the plea hearing and then at sentencing as well so when i got three to what i what i believe happened and i was not counsel in this case but from the record it appears that based on the seven circuit preceden indication that mr fuentes gain anything by agreeing to this or that right but other defendants were making the math as argument in other cases this is all pretty at words but i'm sure you know the math this i just in this case had nothing in the record indicates that this argument was recognized and intentionally even though the parties stipulated to even though the party stipulated to the guidelines in the plea agreement that the stipulation wasn't it didn't find the court t enhance his guidelines by maybe four point two to four points let me pull up my you know time that if that were so might be i believe if i'm correct remembering the p s r correctly that there's a potential that he may have a conviction that might give him four point as opposed to th six to twelve months or potentially depending on how the court would rule and another enhancement potentially fifteen to twenty one months i believe but in any case they should be lower than that twenty four to thirty months that they were calculated at in the district court and so the objection here is that because the guidelines were miscalculated the court but he was quite a criminal  problem while the the rule here and what's interesting is that in this case the court did not apply those on the basis that he committed a burglary not a generic burglary they  because the fact that the facts show and you know the argument over whether or not it's divisible of the statute is divisible as to the location is in apples it here but the court interchange from twenty four thirty months to fifteen to twenty one months fifteen to twenty four fifteen to twenty one just twenty and he got twenty four so now he's above instead of at the bottom of the range that's right with the correct calculation different offense that can't that can't be right because illinois would not permit its prosecutors to charge two offenses if a defendant or an offender commits a breaking and entering intents right i mean if the defendant breaks into one of these places building car etc shed whatever with an intent to steal  convictions even when it was clearly two different offenses that arose from the same occurrence right all the cases that are cited smith and payne and palmer are instructional error cases where there wasn't an instruction given on what the meaning of funniest inten this under the due process clause or i'm sorry the double jeopardy clause to charge two offenses if it's a single crime you've got to have two crimes in the same statute and that's has to be what the legislature intent is an element but the different kinds of intense or just alternative means but to us even if you would consider that the unit prosecution is the entry that's not dispositive of the issue of whether there are different prices so for  nature of the elements of the charge as opposed to only for means and language battery was in the indictment your complaint information and here in the state to charge intent to commit a theft and it's not just surplusage or mere fashion additional factual information i mean the charge as this charge is what the state has to prove if it proves something else it's not just immaterial variance and that's sort of the issue into a the court said well there's an inference that in you know maybe they could have prove intent to commit theft but they charged intent to commit rape and they ha now proven that right that if we don't look at the charging documents unless the statute is to physical it with the exception that if the state if there's no clear state law defining one or the other mass i stated that the courts can look at the charging diaries for the sole purpose of trying to decide what the statute is divisible elements and different offenses that would be divisible so in our view the district court did not commit clean air by deciding to the statue was just visible and looking to the charge include putting there is an aggravated felony we do agree that there needs to be an analysis under madness of the divisibility issue and that you can't just go to the charging document with the right even even setting aside what we now know about the analysis after math  just to say that a crime is an attempted theft when that's not how state law treats it it does near definition of aggravated felony permit approach think we have to decide that the question is whether the defend it was convicted of an aggravated felony so we have to look at the state crime of which he was convicted and i don't think any not rican strew it as something that it's not yet in our view that the states prosecutor must choose between and must prove beyond a reasonable doubt to the exclusion of other alternatives or are the alternatives and their means which are various ways of satisfying the single it was error for the court to conclude at that as a matter of law these can this these either of these convictions were attempted that offenses and the generic well if you broke into a car question here is does the prior conviction prove that the defendant broke into a car to steal something and because the statute is not divisible we can't say that  isn't the assumption that if he breaks into a car again it's to steal yes motor for breaking into a car because in this case this is not he is not on a semi and my time but this conviction now if we are talking about it we were sentencing him for this burglary that happened many years ago we would be interested in the and therefore i'm going to you know throw the book at the twenty four months what's wrong with your honor when we're looking at records of past convictions that the supreme court has noted that what he did that's relevant to you usually in sentencing the judge is allowed to look at anything that you know bears rationally on what a proper punishment is and if you know this guy  correct yes so the guidelines calculation is lobbyist eric booker discretion is fact based so the judge can do this all he or she wants in book or discretion right but not in and i think i plan to point guideline that's a legal question