the main issue here your honour's is whether the lower court made its determination of the arm career criminal act sentencing in violation of the mark by categor i think some great groundwork has been laid already but the modify categorical protests the court know just allows a certain set of documents and only those documents not just without this qualifying as a building brewery of a building which counts as a violent crime well that section of the missouri statute can be committed in several different ways i'm getting i know we can be in the  everything counts yes right i get that and i'm going there ok consistent with the colloquy how is this not a violent crime if it's something that me and three others ran into taking weapons there's a car vehicle is also within that statute run into you know three people can't run into a car right but more people yeah this is also forcing us to have to go back into a fa colloquy right yes but i mean i i feel like in order to pull it together we're we have to tie things together we have to make some i'm not saying that at the boat i am i am thing that property can be owned by my guns and my guns name it doesn't say what the property is in the charging document it lists an address and it lists the location your hon a photograph of a business name mikes disappears you know i haven't found any case that goals that that far i mean they they stopped it again at at the charging document and the record of sentencing so that i think that is what taylor and shepherds say specifically not to go beyond what's already before the court and the re that i'm being again i feel like it's forced speculation to have to go there but because the court is asking it's come conceivable that a place can own a trailer and eighteen wheeler or something of that sort where they're housing things or things are being dropped off at a location it was your your grand shop's allowed to operate lawfully is what the person actually pled to a lot of time negotiations take place and you don't plea to what's in a police report rather you plea to what's an agreement between the attorneys and that's presented before the court so that someone can be charged with a speeding ticket for example and end up pleading to a parking ticket but that's not what the police report says in this case the police report again is what we're focusing on here because that's what the pre sentence report focused but percents report relies on and that's what the court below relied on and well the judge hands over light on the plea colloquy so even if we take out that the  shepherd sanctions documents there is in the air harmless if it was error to rely on the base report which was quoted in the p s r there's i don't think  that i don't think that it could be considered harmless error again unless mike's done the self defining if that's what the court is saying if it's self defining i suppose that's another story but i could not find a flaw that said an address or a store name or something is self defined just by the name and the miscarry might correct this whole thing this whole sn't specify again i'm sorry the charging document doesn't specify which burglary he committed or which burglary he pled to rather and i mean i believe structure in quotes and it just does not say that and then of the none of the documents that were presented does it say that he pled to committing an offense in a building or in close structure and we would just ask that the court consider the things that are in the separate documents again including the plea coakley also regarding harmless error without the arm c sentencing i mean my client is subjected here with a fifteen year mandatory minimum on the nine twenty two g sentencing the maximum of ten years so the result is totally different without his arme career criminal tendency and the effect generic burglary and therefore served as an accurate predicate looking first to the amended information to pieces of the two facts there first the street address the fact that this is as a couple of judge hamilton noted that this is located in the actual physical place unlikely perhaps conceivable but back to one of the discussions in an earlier case we're interested in realistic possibility not an exercise in legal imagination that we're talking about an airplane or a ship with a street address that's fact number one fact number two also from the amended information is that we're talking about mike scott's that certainly appears to be a commercial operation that we know from the p s r which is not a shepherd document that that's in fact what it is but it doesn't take a very far leap from common sense to make that determination that we're talking about a building josh hamilton i also don't know the answer to your question about whether one needs a permit  in missouri to sell guns out of a shop and if that is the carrier needs to be out of an enclosed space that would be an additional fact that would be helpful for the government but i think that these four facts alone  satisfactory satisfactory that this is a generic burglary the police colloquy then one adds two additional facts here first of all it again is just hamilton mentioned what mr smith admitted to was with three other individual running inside skies you don't run inside something that's not in a building or an enclosed space you don't talk about running inside a ship or an airplane and then finally in the discussion with the judge at that colloquy the judge asks was was it a structure that was in missouri county and mr smith says yes now admittedly the legal definition of inhabitable structure under the missouri law is one that is broader includes these other things but the common everyday understanding of the term structure is a building what we're standing in right now and i think one could also infer that mr smith's agreement and on lot lot trained individuals and yes if this happened structure would be yet another factor  cases that say attend to council or doesn't count sort of movable things don't seem to count not move all things do count you know that's i'm glad to have the visit not asking that question because i know you one can move addresses as far as i'm aware and also a tent that is certainly more easily moved than say this building or a general commercial building or a house but i'm not aware of a case dealing guidelines which require burglary of a dwelling that also involves an illinois illinois burglary where there is residential burglary and then there is a lesser degree offense that includes non residential burglary and that necessarily excludes residential of consideration and that's of course entirely distinct because first of all second degree missouri berkeley doesn't have that same limitation to residential burglary and nor does aca itself have any limitation as the indeed your honor and in fact yesterday afternoon i just i submitted a twenty eight day letter just a call to the court's attention the fact that the supreme court heard argument in mathis at the end of april so the question whether the use of the modified categorical approach was appropriate for a second degree i would burglary statute that doesn't look somewhat similar to the missouri burglary statute at issue here and so far as the term structure occupied structure in iowa as opposed to inhabitable structure here can be defined somewhat more broadly to include things that taylor say don't fall in the generic definition the position the government takes in mathis or has taken it in mathis is  that this that the use of the divisible the maddest modified categorical approach is appropriate in this type of case and in fact this is exactly the hypothetical that the supreme court initially considered and taylor that dealt with in shepherds and it would be somewhat peculiar in mathis for it to say actually even though we use those hypotheticals we didn't think that you could use the modified categorical approach we don't know what the supreme court will say of course but we believe it unlikely and  pedigree now of course if if the supreme court says something else whatever the parties agree is somewhat beside the point but that is not both parties here agree that it is divisible statute as you have reported it's certainly not divisible in the decamps  doesn't it doesn't define more than one crime it defines a single crime with more than one motive can a ship that's right that's right is only doesn't qualify as multiple crimes within a single statute which is what they can't says it's required for divisibility mathis but we just don't have that challenge here so we don't have to address it that that's correct that's almost any further questions the government would ask the court to offer thank you thank you very how much time you've got one minute left and your honor just responding to holtz in that case i think at the end of the case the court determined that the matter would fall under the residual and i think that's where the residual calls would potentially come in in this matter and with regards to matters i just wanted to respond to that i think it could potentially affect our case we didn't argue with regard to those two challenges of the elements versus the means but it looks like it would affect our case in the end but we do ask that the court really end this matter first for further sentencing at the lower court and for clarification all right thank you the