fifty five dollars motion seems to have a lot of moving parts but really it's a very simple appeal st mr karaites claim is that when the district court sentenced him in two thousand and five as an arm criminal it relied more likely than not on the unconstitutional residual clause the best proof of this is that in two thousand and five he had three prior convictions that could have qualified and counted only under the residual clause that's the two escapes and the incest conviction because these convictions to one hundred percent of the work to make him an arc recriminatory the district court didn't have to address the other convictions although it counted them it was supplemental it was like icing on the cake because he had these three prior convictions that unquestionably qualify that makes his claim com my civil under johnson it also makes  timely under johnson and it also means that he had cause for not raising it in on direct appeal because of the solid while with already saying that the residual cost was not a constitutionally ba also his has the johnson era that occurred in his case as a result the district court's reliance on three convictions the qualified only and the residual cost this johnson error also prejudiced him we kno because without those three convictions he doesn't have three qualifying convictions he has the only way to get there right now is to try out st and nd degree burglary convictions for many the court decides that it can look at they are not breaking it we so we have to get going to go back for a nd if there were seven that were listed i know there's a question about six or seven yes though in order to get to three here you would they government needs the aggravated assault and the st and nd degree burglary because the rd degree was that would be out under cravat right is that right so the only way to get to three is the st and nd degree and the  average assault however in these appeal proceedings the government has presented some separate documents that suggest that the rd degree burglary is in fact st degree burglary so depending on how the court you know looks at that whether it's willing to consider law i mean it's possible of the four things the government has waived that you know switcheroo on the rd degree to st degree then we would be in a situation where it could also depend on how the views the different occasions question because if we only have the aggravated assault and the st to be burglary from one thousand nine hundred and eighty and it looks like those two convictions cannot be it cannot be determined from the shepherd documents that they commit were committed on separate occasions and that would be another way to get to the same place that mr mr kar  but it says that it's generic were it and i don't know what do we do with that in light of the cases like i think it was brownback and some of the other cases where we do know with manson some of  the questions about what's the holding of the case and is it just you know do we drilled down into what the arguments that were made specifically and jones and whether they did or did not address were or do we just go with the generic kind of holding well i have a couple of answers to that the st one is there is so there is some difference here between the manse line of cases all you know culminating in still and this jones case which is that there was also a decision pretty in which the court actually applied nance and specifically addressed the provision well when i think about it i'm always thinking about how to challenge the section eight repression but there was another decision that came in  i looked at each one of the subsections and said these are generic burglary so there was more to it than just its generic burglary and i think under right versus spalding and all the other cases that have been cited by mr cart right for of the court hast for something to be a holding the court has to a consciously considered the issue and consciously decided it and so i would say that when the court in jones it's finished up by saying and so it's generic burglary that really is not a binding statement because it was not a conscious decision about the element of entry it's similar to the situation where are the court say the supreme court instead that when it when it ultimately held instant that the building or structure element of burglary included vehicles that have been adapted for habitation and it was very careful to say and so this element is the so i don't think it's a it's accurate to say that because jones used that least language it was necessarily consciously deciding this question that certainly wasn't deciding the question respect st it reverberated and i think that as the court said this coffin your your your straightforward answers i think are really helpful a kind of focus in our discussion so if this in fact turns on the question whether the st three burglary or st and  and thirty two the tennessee legislature added to the breaking after injury vision the language that could be a breaking of the premises after entry or after entry the breaking into a s outside the scope generic array so that's it's not it's not that that particular provision as a whole is it is broader than than generic burglary it's that part of it which is invisible and it's clear from tennessee law over the years that and before nine hundred and thirty two that the state did not have to separately prove that statute it was not standalone it was considered to be a way to prove burglary  yes to me exactly yeah ok i get it and you know the argument doesn't depend on the kind of the cr whatever because they kind of read back lost and the rd degree from what i could tell but that's the st and nd degree you don't need that step it seems to me because that provision that provision  applies by its terms because of the use of growing house the st and nd degree where it wouldn't necessarily apply to rd degree does that make sense and makes sense so we so fox and hate what they do is they come burglary and there's simply no evidence that quote that tennessee courts have ever treated that as an alternative means of proving purse or nd degree murder rather it's a separate offense they would have to be proven separately why but what about th court opinions but you can also to the extent of the state law is unclear you should look at actual jury instructions actual shepherd documents from real cases if in our case all the shepherd documents we have and we do have a set of jury instructions from one of the b convictions they actually specifically instruct on a breaking and entering period and they do not allow conviction based on a breaking after entry theory that's good evidence that breaking after entry is that is not just another means proving burglary  situation that is would be exact opposite of what the court based the crabber credit you had a statute that on its face appeared to define a generic burglary and then you had court decisions interpret in that statute in a way that suggests that something them as the state defenses but i would i would submit there's not a case the regular point that saves these are necessarily separate offenses where you have to do is you have to look at the linguistic structure there it's listed out in a separate statute and you have to have the bush case that i think is very actually helpful for the government which that was a situation where somebody was charged with breaking and entering and then they allege on appeal that there was a variance from the indictment because at trial the government also presented a theory of breaking doesn't that mean though in bush that the court didn't decide whether in fact there was a variance it just didn't have to reach the question one way or the other it didn't decide whether there was it rains but the fact that it recognized that there could be a variance and didn't just say out of hand of course this isn't of this is an alternative means i think is good evidence that that it's that our reading of these statutes is consistent with tennessee case law yes i'm not a fan i mean i might have been frankly given a litigation pad with this i might have been easier just assuming i think the court there was just sort of assuming even if there was a variance it wasn't quite right i don't think it would have addressing the question but i think the very fact that it's possible that this was a variance and the court didn't just dismiss it out of hand suggests that it's not immediately obvious t clear that these are necessary this is just that certainly alternative me i think the best evidence for the government is if you look at all of tennessee case law there is not a single case where somebody has been charged with a breaking after statute there has to be a realistic probability not just a theoretical possibility but the statute could be applied in a particular way when you have the length the plain language of the person nd or virtuous that you that only requires breaking after breaking an entering and the courts have always applied it that way and it never applied to breaking after entering if you have a separate statute that appears to contain alternative elements and is listed as a separate statutory provision they could be charged separately it seems very odd to read that statute as simply an alternative means of proving it different the elements of a different statute others here saying there's never been a tennessee case where the tennessee courts in fact treated thirty nine violation of thousand nine hundred and two as a means of a person being convicted or you know yeah under either the st degree or nd degree burglary persons is that what you're saying never we have here again to the extent that the court is hung up on this means are elements question and that with the supreme court has said is if there is any ambiguity of same our state law doesn't answer the question what you can do is you can do what's called the you can look at the shepherd documents from actual convictions and we hashed over documents here and what the shepherd documents confirm is that why should we take judicial no decision rather ask of those shepherd documents i'm trying to get the timing strike you indicate that you come across these and preparing for this appeal so that this is a sixteen years ago issue it seems to me that it's too late should for a very simple reason these arguments challenging person secretary were a race for the very st time and the on the government was never presented with these arguments below and so in an effort to be helpful to the court we tried to collect documents that would actually be responsive to the arguments that unlawful entry that said he didn't require unlawful entry this is entirely the argument raised on appeal or attempting to respond to the argument to be as helpful as the board's possible that's why we have located and provided the court with the actual shepherd documents and what those documents show is that and entered there was no instruction that it was possible to convict him for breaking after entry but our position is that there's a couple other reasons though that we believe that the court should still find that the ten though we would argue it's our submission that even if this breaking after entry principal were a part were a means of proving versus nd to that would not take it outside the scope of generic in that is because this notion of breaking  physically attached to the structure versus one that was not physically passionate structure in a minute lee the breaking after entry provision in tennessee law eliminated that distinction but that kind of distinction is not one that matters for purposes of unlawful or the  privileged nature of the burglary for purposes of the modern generic understanding of burglary we recognize that there are some aspects of this that are maybe a little bit broader than the very old common law but the supreme court has said that it's not just come along berkeley generic broader it includes unlawful and privileged presence in the notion behind the breaking after injury principle is that when somebody is in a house and the exceed the authority granted to them by the homeowner they access areas of the house that they are not and seventy five when there was a breaking after entry principle in the burglary statutes in tennessee law in atkinson at consent versus the state sixty four tennessee five  and seventy three dollars what the supreme court of tennessee said about the breaking after entry principle that was in the law at the time was that this is nothing more than the principle of the common law that breaking in furtherance of the design that is felonious purpose after entry makes out the offense and they mean makes out the offense of burglary at the time as we just discussed it did not include the breaking of something more than the premises by going into the kind of thirty nine i know to you as an alternative not an alternative means but a separate crime well my response is this very decision atkinson's st versus state i consent versus the state where the burglary well the way that it's the way that it's from as the government says there is no case tennessee case that that requires force says that when you're charged with regular burglary that the jury can't come back with burglary but proved by this other means and i think bush actually does support the suggestion that in that case the person was indicted just as mr cartwright was indicted with breaking and entering st of your burglary but the jury was instructed under the breaking after entry provision because that is it was an allowable way to make out the offense of st your birthright and so you would be and convicted with the breaking after entries because it wasn't a separate sets it was just a way to prove the st offense as the jury instructions confirm and i recognize that the jury instructions do not necessarily say what the law is or make law jury instruction set and you're not going to see a lot of cases to tell us whether that was right or wrong so when reading that i guess just as a factual matter there does not happen to be a case out there where on the fa support as we know it was an accurate statement i think that we can say that we maybe haven't found any published decisions that have that factual scenario that certainly doesn't mean that that factual scenario hasn't happened hundreds of times and