question as to whether we really have a chance to stand before this court and argue that the pretty case was badly decided and i want to offer my apologies to  yes you're absolutely right well i'm going to make a reasonable argument as to why the school should do that your honor if the court wants me to just take that issue first i can do that that was my last issue after saying what is wrong with pretty and why it should be reversed your honor because standard decides this is not a constitutional doctrine it is there is no constitutional principle has given the court this court they are targeting to really arguing that we should overturn sell me because sell me was wrong yes your honor well this is my point i'm not going to necessarily say sammy was wrong because it's an interpretation of a current common law principle shall not be published i mean less circulated among judges and majority does not affect the seventh circuit has as a preemptive on bug procedure correctly so that's that's perfectly fine for them they make their rules we make our rules correctly or are you saying again that as a matter of law this panel should in effect say we ought to be like the seventh circuit yes you're absolutely right i'm going beyond that here on what i'm saying is i'm going a step beyond that i'm saying that this court has guard the inherent equitable jurisdiction and duty to make sure that there is progressive development of guidelines the binding nature of the guidelines interpret thing i'm carry a criminal statute and so many other areas my point is this iran and palace opinion if it is wrong say for example for argument's sake w then look said that final decision and if nobody asked for an on on bond hearing that becomes the law and in the published opinion it has to be stated that this over rules the other panel decision and none of the judges have asked for on bond care that is the best route why is that the best rule your honor because our panels are equal when this panel says i'm simply going to follow the other panel the equality of judges is about what the ninth circuit does because we don't consider that to be binding so i would submit to the court that the answer to my answer to the question as to whether a panel decision is binding which would foreclose my argument before this court is on burglary false in the same category of the pretty case now i want to address another question or i which is the most important one no matter what happens before this court today i am entitled to a reversal of my case because modified categorical approach was not followed in my case there are no shepherd documents there is nothing why my client was enhanced nobody knows because the dog went on a stipulation by the former counsel against  what did the judge rule on correct your honor is absolutely correct the judge ruled limited the scope of the twenty to fifty five petition to loving the defendant to appeal the case because  why lated my client has to go back to the district court and tell the district court exactly how he should be sentenced instead of the district court following the stipulation given by the ineffective counsel that he is well the shepards documents i'm entitled to introduce up a document now that takes me to my third argument my third argument is that when my client was i rested and convicted of burglary tennessee becomes an effort any if the defendant if the court finds that the defendant is a criminal gang member so we cannot tell formative lee that the burglary in tennessee is that the bu in this case here on i would submit to the court that whether that actually is a proper case for a modified categorical approach where these extraneous documents can be considered by the court here and i'll come back on as the appellant has recognized this court has already decided that question in pretty and as he also recognizes this court has precedent that such a decision is binding on other panels of the court the trial court did not commit plain error in sentencing mr davis as an armed career criminal because tennessee burglary of a building is an i c c a predicate offense and they gang and handsome and statute doesn't change that r no first is the pretty court didn't say that the class of offense is the only way they said that's the easier way to determine whether the burglary of a building is different from burglary of an automobile or motor vehicle the pretty court looked under the modified categorical approach and considered each element each separate variant of tennessee burglary and compare the definitions to the definition of generic burglary so even if there was a change even if the gang and hanson statute might make a change that doesn't change the definition of burglary under the tennessee burglary statute the pretty court looked at each separate there for a variance of burglary and the tennessee burglary statu the first would be entry into a building with the intent to commit felony or theft and the court has found that that corresponds to generic burglary the entry into type the second is remaining concealed in a building with the intent to commit a theft or a felony and that's the remaining in type the court has looked at the definitions and found definitional and that this is their remaining and type of generic burglary the third is entry into a building and then commission of a felony or theft and that also is a remaining in generic burglary the fourth is entering into a motor vehicle and the court has found that that is not definitional ie a generic burglary so for that reason the court can decide regardless of the class a felony can look at the definitions and apply the modified categorical approach and still determine the different classes of felony as set forth by the tennessee statute the second reason now no w why is it that we know that this crime was in one of the first three rather than in the fourth category the court will know this for two reasons first mr davis admitted during the sentencing hearing and in his position paper that he was convicted of burglary of a building so that clearly shows that he was within one of the first three variants of burglary and the second i had filed a motion for judicial notice to look at the shepherd documents and if the court would grant that motion and review the shopper documents the court would see that mr davis was charged with unlawfully entering a building custom wheels and details other than a habitation which is not open to the public with the intent to commit that that is a generic burglary of the first paragraph that was in the charge usually in these circumstances we we direct reliance on the guilty plea and those other back to earth that that we have to take into account today the district court very clearly eliminated the in effect of assistance of counsel to the counsel's failure to file an appeal this appeal to the district court did not find that counsel was ineffective and any other way and to find that she would be ineffective throughout the entire representation because of one act her failure to file an a first the paper the appeal at the time that the trial counsel admitted to mr davis's conviction for burglary of a building recognising that and her advising her client of that fact ahead of time since this is a direct criminal appeal they could raise that has an effect of the systems on the twenty fifty five  you later on it was raised as a denim to the original twenty to thirty five believe your honor and also yes probably they can raise it again the district court allowed what we have before us is the direct criminal peeta direct criminal appeal yes so there could potentially be a second or successive twenty to fifty five however the district court already ruled on that and found that the conviction is an i c c a predicate offense so for the for the defendant to do that again would be futile the district court has already ruled on that and this court has already found  offense did from what you said sounded like you said the district judge had ruled against nearly ineffective assistance of trial level but i thought the just record simply not reached th said you can go ahead and do your appeal and that was all she said no i'm sorry your honor you are correct and i was apparently confused as to request and the judge did not rule on ineffectiveness for anything other than failure to file the appeal however the judge did rule on a twenty two fifty five motion that considered these same issues that considered whether burglary of a building is an appellant argues that the gang and hansen statute would change the analysis of pretty would change the analysis of whether the first three variants of burglary are a c c a predicate offenses because there's the possibility that the offense level would change that the felony would change from an aide to a d felony but he recognizes that with a shepherd document the court would be able to tell so even if the gang in hands when applied the court would know the yang and hansen applied and the court would know which variant of burglary the defendant had been convicted of the gang enhancement statute requires that the jury has to separately consider whether or not gang and handsome and applies so in the sheppard documents in the conviction in the indictment that has to be presented to the jury and the jury has to make a separate finding so this isn't an invisible gang unhandsome and there's no potential for confusion of the court as to which specific variant of burglary a defendant has been convicted of because the court would know the court would know that the gang enhanced one applies and would still be able to tell a d burglary from an a burglary because it would be a d burglary with the so there is no chance of confusion there's no danger that the court would not know which when you say the court you mean the federal sentencing court or you mean the state court court would be aware of which variant of burglary the defendant had been convicted of in the state car the reason i asked that was when we talk about sheppard documents and maybe i'm i'm not the expert on tennessee criminal law but here it sounds almost like i guess i would call that a negative sheppard document usually we think of shepherd documents where the prosecution introduces them in order to to be sure that we know what's happening  here it almost sounds like the other side wants you in every case to have to negate a gang in handsome a just because it might occasionally apply and you're saying here that the federal sentencing court would always know because it would appear on the record yes the federal sentencing court would always now because it would appear on the record there are two state cases that i call a negative shepherd document because of your adversary has a has a loophole that he might want to use but normally would be his burden to bring it in not not your not your burden to me affirmatively negate it that is the does and never say it was and there is no gang document would show whether that gang and hence it was checked or not checked i was bringing up two state court cases which were not cited in the brief one est versus armstrong twenty seventeen west law two eight seven five seven one eight of the tennessee criminal court which finds that a defendant can't be subjected to the gang and handsome and unless the indictment specifically charged him under the statute you would see that gang enhanced men in the charging document and in state the buyers twenty seventeen west last seven five eight five one seven at star eighteen the tennessee criminal appellate court suggest that the judgment has to reference the gang and handsome and so into sheppard documents you would see that gang and handsome and the the sentencing court would see that young and handsome and so there's no chance that the gang unhandsome it would change the nature of the criminal offense it wouldn't change burglary of a car into burglary of a building and there's no chance that the sentencing court would not know that if a gang unhandsome and was applied then the court would know that the transcript which i made part of the record there is no document introduced if i recall correctly so that there may be documents that exist well there are this there is a court reporter that i can  there is a lawyer who represented michael and i can subpoena i can do a number of things if the government brings some document but the truth of the fact of the situation here is no such documents existed because of the stipulation the plea that if there is ineffective assistance of counsel we can appeal so we in and so it works in two ways that cannot be used against us because we preserved that in the plea agreement and in this case the court affirmatively found that there is ineffective assistance of counsel so either way we're no more before feature in my case i didn't specifically address that in my brief because that was not i mean in my argument because that was not raised by the government so i thought that issues not really germane to our conversation and now i want to talk about the request to be filed by the government for taking judicial notice i did file a response and that response makes it very clear death penalty the court has i believe admitted the mental condition of the defendant otherwise in the rarest of the rare cases the court has carved the head and equitable authority i'm not questioning that however that is not this case where you can simply say we forgot this is not part of the distro to record here it is take judicial notice under the rules of evidence or any record of state conviction is not something which the court can take judicial notice anyway because as specially shephard document am entitled to contest every single shopper document which the counsel for the government brings in that when she say's that i show up or documents which i stablished the conviction i am entitled to question that i'm entitled to contest that it didn't happen in the district c are right but normally we can take judicial notice of documents in the lower court record no your honor in a situation where the sentencing is there i am entitled to if the court take judicial notice of a conviction then that price me of the ability to contest it i would never concede the judicial notice of a conviction from a state court i will never do that because you know it has to be admitted it has to be properly