one five two four six zero united states of america versus christopher richey arguments not to exceed fifteen minutes for side mr nelson for pal good afternoon may it please the court i'm paul nelson on behalf of christopher ritchie and i'd like to reserve four minutes for rebuttal mr ritchie is challenging the application of the arm correct criminal act and hance based on two grounds which are somewhat related and at the outset i would like to note as the supreme court did in the mathis case that the argument i'm before mathis was decided that the determination by the district court that he was unarmed career criminal was not supported by the record that the information provided by the government did not meet the burden of proving that his convictions were for violent felonies and in light of mathis we now argue that the michigan breaking and entering statute is in divisible and as such it's overbroad and no convictions under the michigan breaking and entering conviction excusing breaking and entering statute can be used to enhance the sentences and i'm career criminal categorical approach not looking at any indictment papers or anything he says in a plea hearing right under methodists yes and just to refresh my recollection what space is it that one could burgle under the michigan statue that is not a building it in fact commission arts and stuff vehicle the michigan statute overbroad aren't lies the michigan statute well because among other things that in fact the first and i have trouble just describing what they are the first location i guess would be a tent but it also includes railroad cars  and and automobiles i believe i mean that's a not ok and so there are things that a person can break into that would not fall within the scope of things like i mean the big question here i mean obviously we'll hear what mr present has to say about mathis and so on but the big question here is why isn't there an outright waiver as opposed to forfeit ure given counsel's statement at the sentencing hearing that he is an armed career criminal under you know he qualifies for the armed career criminal status council says that at that point you know judge ocker doesn't have any occasion to look at the same issue the court looked at in that this and so why isn't it just out right way if i may  this is an issue that was fought over during virtually the entire proceeding from the the plea agreement indicated that there was a dispute over whether he would be an armed career criminal at the time that he pled guilty transcript judge yonkers discuss that in some detail about the possible issues and possible ramifications of that the initial pre sentence report scored him as an armed career criminal that was subjected to on the grounds that the record up to that point did not contain sufficient information there was the final p s r was filed there was an amended there were objection and amended objection both of which raise that  issue then the government file that sentencing memorandum and after the government filed the sentencing memorandum with those attachments the defense filed its sentencing memorandum and still argued that there was not sufficient evidence to establish that he was unarmed career criminal with that issue does defense counsel just a yield at the end of the day i mean i mean defense counsel is the one who says he was breaking into garages you know and i mean as i understand it i just i'm honest i'm asking you to correct me if i mis understand the record but defense counsel says yeah well it appears they do qualify as generic burglary turns out that one of words are so he qualifies for armed career criminal status but he doesn't qualify for career offender as an enhancement and we're here about armed career criminal status so you know i'm kind of putting myself in the the record the judge juncker considered the information that the government provided and indicated that based on the government's information that the court independently determined the court didn't say independently but the court determined that that these were proper predicates for our own career criminal status and then at that point the court indicated that the objection to career to arm career criminal status was preserved that the courts say that yes see this why i'm asking these questions where the court said that you know or you could tell us in rebuttal if you like page my note says page fifteen your honor of the sentencing transcript i look at  and i'll relax so that you can say what you want to somebody because the court yes judge yonkers just to make clear judge ocker went through i guess one if i was just talking to someone i'd say the mess that was out there about this whole line of faces and judge yonkers said he described that and the possibility of this and then he said so whatever objections the french made are certainly preserved thank you and i think that the from the point of view of what the even the the purpose behind preserving objections that at that point it was all out there judge ocker understood what the it has vacated on other grounds that's the way i put it but the and again i spoke with mr sanders attorney about this just kicking this around and i'm not t out on anything but i think the the judgment in that case was significantly different from the judgment in this case where it gave their words the judgment said for the judgment a conviction form abbreviated his crime as quote be in proceed and be o c c d w e l l which this court i think the district court in this court interpreted that to mean that it was breaking and entering an occupied dwelling depending on who you talk to either under the common law or might have been as i think someone said to commit larceny was a tennessee case right now that was a michigan was the same statues this in this case the judgment formed all of the judgment forms merely said m c l seven fifty point one one zero the analysis is not what a person was charged with the analysis is not what he did but the analysis is what he was convicted of the elements and based on that and again it's it may drift over into the mathis argument that since the statute covers things fall within the definition of building or structure and other things that would not that the statute is overbroad as far as mathis is concerned the supreme court said at page twenty two fifty six the threshold inquiry of whether these are elements or means as easy says where state court decision definitively answers the question then that's pretty much it here we cited cases consistently the michigan court of appeals far as we know the michigan supreme court does not address the issue but the michigan court of appeals have said that the elements of breaking and entering are breaking into a building entering the building and committing a felony or with the intent to commit a felony i can never remember what the last does the michigan statute does say that breaking into the first thing it says is a tent it lists certain other things and says or other building and then it goes on again and lists of things and i think the the building was being used in a i don't like to say the word generic but i think more of a generic form not in the taylor statute read and that is the building that that that said that they just lump everything together and that's what the state jury instruction that we cited also says in the up there it says building and then there's an alternate and said if requested the court may give the list of ten so on so on railroad car and all those other things under your theory do you want it set back down to that this court for reconsideration of this statute is whether it could be divided or whatever or you're just saying it as a matter of law under matters that it can't be so it can't be sensed under the arm career criminal on the map this argument if the court decides on the mathis argument then that should be it he should be sent back saying without consideration of the our career criminal act if the court decides that on the first issue in terms of it's a divisibility of divisible statute our position is that the government had an opportunity to prove that  the battle was fought the government submitted what it thought was necessary and that apparently that we it's our position that that's not enough and the government shouldn't get a second bite at the apple so if that decision is made then it still should be sent may please the court just a prince of the united states has also a trial counsel in the district court last month in mathis versus united states the supreme court provided additional clarification on when a statute is a state's when a state statute is divisible and therefore subject to the modified categorical approach for the purposes of the sentencing hansen under the arm career criminal act and what the majority in mathis said is that we're a state statute sets out alternatively phrased components if those components are means mere factual aspects of the state statute and are not elements that need be applied by the state prosecutor and charged by the state court  and agreed upon unanimously by the state court jury that under those circumstances where the alternatively phrase components are means and not elements that the statute is not divisible and therefore not subject to the modified categorical approach now before the supreme court in mathis was in iowa statute in iowa i'll call it a burglary statute or burglary like statute and i used those copy outs because it covered the alternatively phrase components were the places that could be burgled under iowa law and some of those places are covered by the taylor definition of burger a generic burglar in some of those places or not now the michigan statute here that was relied upon to enhance mr ritchie sentence also suffers from on its face the same problem as the iowa statute it or a railroad car all i will reserve for the argument whether a tent could someday can be considered a structure i'm not sure if this court has precedent on that issue i haven't found it but certainly boat or iowa statute was in the same kind of thing except it had included things that are even more removed from being a building i would suggest i mean it they are very similar conceptually i think the i was stature in michigan statute structurally in terms of covering taylor approved structures and taylor disapprove places are similar on their face in that regard here's where the here's where the differences between michigan law and iowa law and the difference is really in the state case law and the state practice with respect to that statute and what the mathis majority said is they said that in order for sentencing courts are reviewing courts like this one to determine whether a state statute still meets t generic burglary definition the sentencing court needs to refer to state law it's a state law question primarily and mathis  easy case in that sense for the supreme court because there was a decision of the iowa supreme court that said the place burgled is a means and not an element the jury doesn't have to agree upon it just that i was an easy case because most states do not appear to have considered this means versus elements question remind me what i mean i've read mathis but was that the case yes oh yeah and what did justice again as to why it is in divisible justice kagan said that it is indeed visible because state law the iowa supreme court had held that the place broken into under the iowa statute was a means and not an element and therefore it covered the i was statute covered offenses that were broader to broader than generic burglary so she wasn't looking at the statute she just took what the iowa supreme court said its face these are different meanings for to me one element and the elements overbroad i guess and therefore and so you would say well we don't have that kind of opinion here from michigan supreme court and  so in your view then all these things tend hotel office etc those are alternative elements in your view correct and scaffolds that that's the government's view is that those are alternative elements into the bizzle statute and i think kagan's majority opinion gets us there and if you look at the last couple pages of the slip opinion justice kagan responds in a sense to the dissenters and said this is how math this should be applied going forward  and the first thing that the majority says justice kagan writing for majority of the first thing the majority of the court says is you look for controlling state court law and i think state supreme court law would be best but perhaps there c be michigan courts of appeals decision or intermediate courts of appeals decisions that answered the question definitively but we don't find that here from the government's review of the michigan law and in our brief we cited we we  thank you judge because i was going to i was going to move on to the next step in the majority's analysis which is a let me ask a question that if one were to write a statute that was in divisible but which someone could could violate by the exact same meanings as the one spelled out here what would that look like well i don't think we can tell from looking at the statute itself if you're going to write in your saying this is a divisible statute correct ok if you were writing a statute that's indivisible burglary statute that someone could violate by invading all these same spaces what do you think that would look like well it could look like it could look like this in the indivisible statute could look like this i suppose if the if the legislature intended to make it into visible it could actually specify in the statute that that the place broken into need not is not an element of the offense need not be proven to the jury so can say that the elements of the  breaking and entering entering and have an intent to commit a felony a certain kind of place you know right now you're arguing against your position yes right so i mean so in your view the elements are you have to break and enter you have to have the certain intent to commit a felony and it has to be one of these enumerated places in order to commit this crime corrected the michigan state prosecutor needs to  allege and the trial court judge ought to charge and the jury has to find one theory of what the place broken into was in it's now occurred to me that there's another way you could write a statute that would be invisible which is  and justice kagan writes about this too if the legislature just uses a word like premises or in groups all the places together that would be one way to write that statute as well what do you want us to do you want us to find that this is not matheson there for the correct or you want us to send it back down to the district court or figure it out or is there some other alternative you want us to do well judge tyler i think issue has been briefed and it's ripe for this court's consideration it is a legal issue i think the court certainly has discretion to send it back down to give chief judge yonkers an opportunity to look at in the first instance but the government's pre the legal issue minor standing is that it is similar to the issue in sanders a g d r order from the supreme court though does not express an opinion on the merits of the case it just gives the lower court the opportunity to reconsider its opinion in light of the new precedent i think they do the same thing in this case is what i'm concerned about i don't see anything to make it any different they'd send it back down we'd be right back to where you are now that's certainly possible it's certainly possible judge seiler but the supreme court considering a reasoned opinion from this panel that distinguishes mathis might not grant review that case sort might grant review to clarify the meaning of mathis i'm just speculating at this even if if as you say michigan law does not provide this sort of answer that the iowa supreme provide some guidance again at the end of the slip opinion and what the majority says is you can also look at the statute that's not helpful here but the majority says that the statute set forth different minimum or maximum sentences than under the those would be different crimes and it would be divisible that also doesn't help us so we move on to the next step with the majority why don't we just asked the michigan supreme court to decide this for certain you know i mean we get a lot of these and we've been burned once before you know the book ends here in the michigan supreme court could answer that question for this for this federal court reviewing michigan law but to turn back to your question judge gives judge givens what the supreme court says is if the state supreme court or state case law doesn't provide an answer and the statute doesn't provide an answer then you can look to the shepherd documents for a limited purpose and limited purpose that you can look to the shepherd documents for is to determine whether the state practice is to allege the different places broken into or the  guess the alternatively phrase components as an element that then could be proved or then would need to be proven to the jury under state law so if state law doesn't answer you can look to state practice and here i think that's where mr ritchie loses this case it's if you look at first the michigan prosecutor practices both in this case and also in the prosecutor's manual that cited in our brief michigan prosecutor specify which of the places in seven fifty point one one zero was broken into and in this case all of them are caption breaking entering a building with intent i'm referring to the felony information's now that the government f with it since the memorandum and the the place is specified in all of the felony informations and an address is given those felony informations and so  five point one list the elements and it says the first element is breaking and entering a building and the second element is breaking and entering a building and as mr nelson pointed out when he was delivering his argument there was a footnote in the model jury instruction that allows the stay trial court judge to substitute different places even if it's not a building that's an issue but a boat's issue or a ship or a railroad car the state court trial judge can substitute that in and i think the fact that substitution is as good of evidence as any that they are separate elements that the elements that are delivered to the jury under the model criminal jury instruction change based on based on the place that the state prosecutor charged but it doesn't seem to be that much different to me than what mathis had because they've had building dr vehicle it's three different things that the court said ten but it's pretty hard had to figure asked how you would try and charge a case under either statute with out the location becoming an element of the  but i mean apparently justice kagan fan the answer to that in a particular piece of case law a particular decision i think it was duncan versus state as the case in iowa and maybe one of the ironies here and i'm speculating but if the court will allow me to judge gibbons is that without that decision it may be that mathis comes out the other way because looking at the state charging documents it might have cynical if you want and wouldn't be the first ones but your last question judge givens a boat in why the statute written this way and so on that in my experience criminal statutes are written  ways to make it easier to convict people and in most cases i've had where i've had review michigan criminal state criminal documents the generally what they do is they just put the whole statutory language in aren't the best of all or several and it gives them a bigger target to aim for and yeah but it's early the jury has to five one of those in order but not but not unanimously and that's the issue between means and elements mathis doesn't have to be unanimous that one person could think it's a tandem the other person could think it's like a pick up truck cab or something is there michigan case it says not that not the doesn't say that specifically but that's why if you were alive you were trying this guy as a judge you would take whatever the claimed structure is and insert that into the jury instructions i mean it just doesn't make any since if you go talk about t n t would everybody knows what you're talking about is a railroad car or say building when they broke into a yob well  i'm not going to defend the way prosecutors try their cases and state judges try their cases rodwell but i think when you start again out when you start out you might charge here the crowd as it appears the statute but then you might intend to go about proving it only in one particular you know only involving one particular building and by the time you got to the jury instructions it would be the proof of the i don't that is it that is claimed to have been that sort of that becomes a development well that and that made in the easy cases and most of the cases that have the have arisen where someone broke into a building someone broke into a snow or someone built broken to a garage and but the fact of the matter is that the michigan standard criminal jury instructions which are either approved by the michigan supreme court or produced under the auspices of the michigan supreme court i'm not all that clear that they say that the element is breaking into a building and building is a broad term that covers everything that covers all these things in the statute it's pretty atten be you know looking at jury instructions for the you know to try to figure out what statute means i mean normally i mean we do it all day long we look at the statute and we would ourselves construe the statute figure out whether it's me and you know jury instructions i mean that's you know if somebody cites a jury instruction in a federal case about what a statute means i mean that's not even going to slow anything down well but not that probative it is from the point of view that an element and in math this that's under part one a i can't i can the way these are printed off i can't find the supreme court reporter page number but they talk about the fact distinguishing between elements  means it's not that a court says this is an element this is means that an element to something that the jury has to agree on unanimously to convict someone if i was interested if you had a case that said they could disagree on which space under this statu i don't have a case but it's like and in math again where they talk about the fact assault with a deadly weapon and then it says guns not have that you have and i was supreme court decision that that the court didn't have to wrestle with or were wrestling with and it's hard for me to see how the element is building when you can break into a boat i mean it's just strange what do you think about sort of i was under it yet what do you think about certifying i would be opposed to certifying i think the michigan appeals courts have pretty consistently explained what the elements are of the offense and that's what we have to live with the u s supreme court doesn't say it has to be a supreme court decision plus i still think the jury instructions con for something and there's a potential in this case that if the michigan supreme court were to take it or were to make a decision which based on my experience is probably somewhat unlikely  that there's a possible possibility of a claim due process file ation an ex post facto type due process violation if all the cases said it's not an element and then all of a sudden the michigan supreme court  structure that very well may be but you don't look at the facts you don't look at what he did and ultimately if the mathis argument is not accepted we still have to go back to the fact that just based on the record here that the government did not establish that they were crimes of violence so thank you all right we appreciate the argument about that you've given and will consider the case carefully