control your spending a lot of time in chicago this month i am here and may it please the court in the last couple of years since johnson came out the federal courts have spent some time working out whether various state state statutes fit within the elements only enumerated offenses because there's no catch all phrase anymore and a lot of those cases involve tricky complicated categorical and now with issues if q is not one of them it's pretty simple i know the time is limited and we should talk about the merits argument but i do have a couple of that's a question of whether the johnson era was harmless and the judge issued a decision denying relief and then a month later on her own initiative which drew that decision and reopened the case appointed coun part has never said that a court can't do it on its own motion the government here pointed out that there at least as of a few years ago there was a bit of a split but the vast majority of the circuits have decided the court is capable on its own motion and frankly this is just the kind of case where that would come up and it makes sense because we have a pro se defendant that frankly had no idea that there was this big issue out there being litigated but we don't have the interpretive question briefed here about whether rule sixty b admits of that interpretation or not that is correct because everyone in this case has always been under the impression that that is exactly what happened to the judge and the parties we briefed the case she entered in your judgment she issued a certificate of appeal ability and so a notice of appeal is only timely with respect to the second order not the first reopened that judgment and the authority would be under rule sixty peer out of why i know that's what you're saying that we don't have that issue briefs and there is a circuit split and if we're being asked to actually affirmatively weigh in on one side or the other because the parties are in agreement on this it's not necessarily the case where this court wants to weigh in on the circuit split it may make more sense where there's an adversarial but there is something as a timeliness question as to the notice of appeal if all we have is the so the second order your correct i mean the one that we are appealing after that the original will be created we have the the final order was really focused on math us but you know for two reasons actually this isn't a math case number one to the if you know our discussion of taylor and math much less so than taylor is really about harmlessness but in addition there was some confusion in that order taylor the supreme court to find the essential elements of generic perjury one of those elements is intent to commit a crime in minnesota a prosecutor doesn't have to prove intent to commit a crime in order to get a burglary conviction so pretty simply it's just not now there is this circuit split on whether burglary statutes like this one can be considered generic burglary another rises out of the government's argument that every crime requires proof of intense and so commission of a crime necessarily requires pro time in the cases involved in the circuit split apparently the defendants accepted that underlying proposition and then argued that the taylor meaning of intent is really about burglar which is you know essentially as lafave puts it intrusion with a specific purpose intrusion with the purpose to commit a crime and to be clear the defendants and the circuit split cases are absolutely correct that mr van can and does not accept the government's proposition that every crime requires proof of intent in minnesota prosecutors do not have to prove intent to prove the crime of perjury burglary the second version the second means of committing second degree burglary is is the the breaking and entering without consent or a non consensual remaining in the building plus the commission of a crime and as i understand the the government's argument that that is a form of quote unquote remaining in burglary under taylor and the generic definition it doesn't matter when intent to commit the crime is is formed because as long as it's formed in the building that was broken into or that the defendant remained in unlawfully then tha t's good enough for generic burglary so i think we really do have to engage with the contemporaneous vironment of generic burglary or the purpose  element of generic burglary as it was explained in taylor well in my view if not every crime is intentional that there simply is no intent now whether it's contemporaneous or not there's no intent if you accept the idea that there's intent in every crime that you might commit while in a trespassed structure then you absolutely have to engage with that and i think we covered pretty thoroughly in our briefs but i mean the of intent in burglary has always been intent to commit a crime that is formed at the time of venture e at the time of remaining and because it is the presence in the in the intruder that structure with this intent is the crux of what burglary is and always has been so when you say forming the intent at the time of remaining in you mean at the time that the individual decides ok i'm going to remain in this building i'm going to remain here for the to commit a crime with that point more again a lot of states instead of remaining in they refer to is going to a part of the building where you don't have consent to go it's the going into that with intent which is the crime which is why you can be charged with burglary and every state except apparently for including minnesota without committing any crime in the building because the crime is completed upon the intrusion with the specified inten could hand may please the court t v get into the united states addressing first the procedural question your honor raised because i was sitting there at who's trying to remember for the life of me why i hadn't invoked the united acting and i think ultimately i concluded there were two things going on here which is why the united states myself acting as united states do not invoke our sort of key keeping requirement and ask you to dismiss the appeal because of course as discord knows it's not jurisdictional i'm sorry what's naturist action well to the extent that the timeliness of a notice of appeal certainly used to be the case it was a hard and fast rule in this court had no authority as i understand it now and i can't con timely because the time limit is in the statute as well as the rule but it's in the statute i may be misunderstanding and i may be dead wrong but i don't think that's been decided with respect to the criminal of heller rules that were not in that domain this well do we have to decide that question to reach the merits of the predicate burglary question or are you waiting it are you waiving the sixty argument to the extent you well right to the extent that i can i guess if the defendant files a brief i'd like a chance to respond because i didn't think through it quite clearly well a waiver of the rule sixty b argument is separate from an attempt to waive the timeliness question i interviewed me and might be able to do the former you can't do the latter i think we can treat this as a waiver to the extent legally permissible this point given what we've got taylor's generic burglar definition for two reasons first of all it it undermines the common sense understanding of remains when you look at what remains means in sort of a literal sense it means the persistence of a continuing state of affairs when carter of course says the opposite and says no remains is a discrete event once it happens that's the end of the discussion that just seems wrong from an from a common sense understanding number one number two if it is it under me a mind i would suggest i think the taylor said was the purpose of congress putting burglary into aca to begin with when you have an intrusion into a structure congress recognize there are all sorts of dangers attendant that macarthur's cramped understanding of remains excises that dangerous  scenario you will you will you have just as much danger and risk of violence but we don't do it risk analysis anymore you know it's a residual class concept totally understand my point is that if you tailor emphasizes that congress put burglary in there because of that risk of violence i'm not suggesting that doesn't help us do any elements analysis about whether this is or isn't eric burglary i think it does to the extent that if you're asking the question of whether or not this reading every means makes sense if it undermines taylor's purpose which is a broad swath of burglary should be included and that's it that's a piece of the puzzle in the analysis  and so i think those two pieces of the puzzle are important and of course we have several jurisdictions to have concluded contrary to to macarthur bunny after wind says the texas statute remains and you don't need a particular discrete event quarrels out of the six circuit is to the same a fact construing to tennessee's death excuse me concerning the tennessee statute so to my mind those those three elements  relied on the model penal code and if i recall correctly lafave street us figures in this as well yes and if we think back to the one nine hundred eighty six version of the treatise there's only one stated that seems to have this approach it's clearly texas it's clearly a mouth water and so it would seem to me a bit of a stretch to say that taylor's death generic definition intended to include the outline throughout lawyer my other question is in essence why should we disagree with the circuits interpretation of minnesota law here  first question first as this court has said this is a common law definition that involves number one so the fact that there might have been an outlier in one nine hundred eighty six i'm sorry  right exactly so i'm not sure where this is going well number two the remaining in feature of burglary is the  same time so assume a scenario where say i don't know the homeless individual during one of the cold chicago winter days goes into a department store goes into the bathroom to stay warm unbeknownst that person and the department store close have so that person is remaining in the department store has no authority to do so and he realizes the department store closes and his only intent is to get out because if you don't want to be there anymore because realizes he shouldn't be there as he goes he sees something on the counter doesn't belong to him he takes it leave the building in that with that fact scenario fit within according to the government the generic definition of burglary as espoused in pillar yes store and at that unlawful point of being in the store he then turned the page and committed a crime the fact that there's overlap there from the government's perspective means that that is a generic  taylor burglary that's a shoplifting plus trespass that's not burglary it meets the burglary definition of the minnesota statute but it's not burglary as defined in taylor or as known  common law the graph i'm in a burglary is breaking and entering a premises without authority of lawful authority with secular intent that is criminal intent and without criminal intent there gives us the definition of generic burglary i just stated it and the fact that it may be out of date based on more recent developments in state burglary statutes doesn't mean we're not we don't have to deal with it we can't just say taylor has evolved taylor does have the remaining in future of it will recognize yet but that's part of  the trespasser e element and other words it's a it's a it's part of the breaking and entering breaking and entering includes remaining in without permission so either break close is used to be set at common law or more you remain in without authority and with a particular intent that is to say criminal intent yes so if there is no criminal intent at the moment you break the closed door and remain and then you haven't committed a burglary as taylor understood it and as the common law understood it well we agree as does as it is quarrels that if you have that symmetry between the unlawful remaining in and a crime that is the definition of a contemporaneous intent that is can i say that there are crimes of recklessness in many state codes sure so there would be no intentional crime if the defendant commits a crime of recklessness well that this gets to the first part of my opponent's argument and i do have to answer my question i think i just want to make sure i'm not yes there are reckless crimes i think it's telling however that the defendant has not come forward and shown that minnesota is out there using this alternative means of committing a crime  field exercising its discretion and prosecuting crimes without intent element then it's incumbent upon the defendant to show that there's no constitutional problem and having crimes of recklessness for those crime s committed and trespassed premises which count as burglary under the second half of the second degree burglary definition sound a crime of recklessness a crime of negligence there are some negligent crimes sure  strict liability crimes i suppose sure but this gets back around to our to our core point which is that it's not any crime to qualifies it's a crime it's a statutory offense it's not subject to imprisonment as stables recognize generally ordinarily those are intentional crimes and but there are many crimes of recklessness that do not require and that will result in prison terms absolutely and my only my own point and finish on this is that my defendant has not pointed to a single instance where minnesota has prosecuted burglaries that doesn't matter i think there are many crimes practices on the books and they all qualify for purposes of the second degree burglary