we'll hear argument first this morning in case fifteen sixteen ninety two matters versus united states mr fleming mr chief justice and it please the court the i was statute under which mr mathis was convicted defines one crime and i what does not need to prove generic burglary to convict underage the eighth circuit below and the government here nonetheless want to use the modified categorical approach not for its usual purpose which is to identify the crime of conviction we know what that is but rather to identify the means of commission that is contrary to act as categorical approach and it's irreconcilable with both the result and the reasoning of this court's decision and they can't one of the ways that so i mean here we have a crime feloniously entered the grocery store the prosecutor stated as much that mr de camp had broken and entered into a grocery store and mr de camp did not object to that nonetheless this court quite properly held that it was not divisible because california was and occupied structure but california did not have to prove whether the entry was unlawful as would have been required to make the offense a generic burglary offense similarly here i would did not need to prove burglary of a building  opposed to burglary of a land air water vehicle or similar place those are issues that there is no dispute a jury could have divided on or mr mathis would not have had to admit specifically in order to permit a conviction under the i was  both or car or house right you have to prove one of the three that is the debt you don't have to buy a gift to prove in massachusetts if you have an indictment which says it was like a house vote so they're not certain what it counts says so they said don't you have to prove our prosecutor says it's a boat or a house now would that get a conviction in massachusetts they prove that it's either or both rouse do they get a conviction or not this court  massachusetts where the prosecutor says it's either a house or a boat they have to go into what the differences as this tort interpreted it in you know in shepherd house where both are elements of the crime as are the rights of six people think a thing the same thing that you've made up a very ingenious difference but why isn't it just the same thing here as was in massachusetts because massachusetts and iowa have chosen to define different crimes and they have the prerogative to do that if i always says we don't care as it has said ultimately what that means is the location of the burglary is a names the jury can divide on that and still convict as long as they find an occupied structure of state versus dumping holds that there's no dispute in that circumstance one cannot be sure whether it's a jury trial which this young this was not except for the case of one is revealed by the record or clea mr mathis had been told you were being charged with burglarizing a garage and he said oh no i can break into a garage i broke into a car parked outside the garage that would have made no difference under iowa law and he would have had no basis to contest the means of i broke into about it with yes guilty or not guilty it massachusetts the statute itself is not clear on the point we give the example of vermont where it does make a difference and the reason  difference is because vermont punishes burglary of a dwelling more severely than burglary of a boat and so every month prosecutor does need to show which it is because it makes a difference to the sentence and in that circumstance the statute is divisible and it would be proper to go to the modified categorical approach well there are a lot of reasons why iowa might want to take the approach that it that it does pose the person is convicted suppose the evidence involves the burglary of a trailer so you'd have the rather ridiculous situation of a jury if that was if those are separate elements and if six of the jurors thought well this trailer is not very movable so i think it's a house and the other say well you know it's possible you could hook it up to a truck and move it so it's a vehicle so they couldn't be in agreement and the defendant would be acquitted that's a rather strange result that the iowa legislature might want to avoid but you legislature has moved that choice so maybe they have more house votes to massachusetts than they do in vermont a bit but the point justice alito is that the state is free to define its crime as it wishes you are absolutely right that i when we decide it prefers to make it easier for its state prosecutors to get convictions so that they don't have to get jury unanimity on the specific location and then they care less about whether their convictions are going for the users i mean if whether it's a federal under your under europe approach what the federal sentencing court supposed to do in a situation like the massachusetts situation where there is no case there is no massachusetts case so what is the court's supposed to do now in this  has said it's as simple as possible to determine whether something is is an element or a means that's your view too but just tell me what the what the federal sentencing court would do in that situation if there truly were a situation where all else had failed all the standard tools of statutory interpretation often so case will sometimes be the case in mass added there are a number of them that we cite where state law is playing on the point and the state courts have had to resolve this whether in the context of a double jeopardy challenge or challenge to be indictment or a request for a you know if so what happens if there is a bogus a case that says well this is definitively an element or i mean in a situation where that arises obviously the the the sentencing court will apply the ordinary tools of statutory interpretation looking at the text to say for instance in the case of vermont are they punishing one of the particular locations more severely than another in that circumstance we know they have to be the most think mean suppose they don't so it looks a case like massachusetts so what's the federal sentencing court supposed to do  would look to authoritative sources like jury instructions one could look at commentaries one would look at legislative history one would look at how the massachusetts courts have interpreted comparable statutes to see if they're in general principles of the massachusetts this is in or also something that the camp says that can be done which is you know maybe you have a case and it just gives you the answer maybe you have jury instructions and it gives you the answer if they don't the camp indicates in footnotes too that you can look to the charging documents for the limited purpose of seeing whether the process the prosecutor is treating the house or a boat as a millions are is an element and sometimes that will be clear i mean you might have one set of charging documents and it will say the person who burgled either a house or a boat and then it will be clear that the they that the thing is a man's and it's not an element  another charging document can say as to a house boat the person per go to haves and then that indicates that massachusetts not does treat this is an element and that you have to prove one or the other and that the prosecutor has an element or instead it means sometimes they're very good clue sometimes they won't get you all the way they are but there's certainly a clue as to whether something is an elementary meehan's and so you can look to the shop or documents to try to figure out that question i think as your honor has phrases we have no quarrel with that as long as this is simply what is being cautious about is that correct mr fleming that depends on state pleading or are you are you telling us that in every state if something aimed if you have a category of means it is impermissible for the charge and i mean whether it's an indictment or an information to specify the thing that was done it has to be done in terms of the elements of the statute you're going to tell us that that is state tweeting law in every jurisdiction no your honor that's not what i'm helping you tell from from the charging document that something is an element or means i think if it  in the limited situation that justice kagan's question posited which is when you have a situation where a prosecutor charges house and vote together in one count that would be a duplicitous indictment if they were different elements so that is a clue that at least the prosecutor view them as different means of commission of a single of what if the charges one is what it was in this case what if the charge what if the charging document just charge one does that make an element i think in that situation the shep belonging to the victim with the intention to commit a theft if i read that do i know what's an element or a means no it is very clear that the only thing being charge is breaking the issue here what we left off open in the shop i work calls this a means but if i read the instrument it seems like an element so what does a judge to give me the steps of which are pretty principles that a judge would view with a case like this of course your honor but the state law at the spouse if that's the first let's start there yes you're on a state law is  your entire case correct well in this case let's assume i always silent that was the question of justice prior you guys coming to if i look at this it seems it doesn't or you remained on wofully and committed a crime and what we said in the shop was reading for loneliness entry you don't know which of the two it is because it's not an element you just have to said willfully unlawfully influenced they enter the building and at the plea hearing the prosecutor said without objection from mr de camp that the crime involved the breaking and entering of a grocery store so there was no question if you were looking v sheppard documents in de camp that they set forth a generic burglary nonetheless that wasn't enough because and these are the court's words california to get a conviction need not prove that they camp broke and not it met exactly which of the two ways he did it but the non did the non generic aspect of the california offense was that you could enter lawfully and then shop with the intent to shoplift and that could still be there's a general answer the question and a specific answer the question the general answer is that the court determines the elements of the state crime in the same way as it applies state law in its civil diversity cases or how it would determine the elements of a state crime in a double jeopardy particularly difficult the specific answer you if there is no state vailable you look at the text of the statute as always to begin with it may be that the texas statute tells you that a particular alternative is punished more harshly than others that's the case in vermont then you know that they are elements you would look at the case law backdrop of the enactment it's possible the state legislature was reacting to a particular prior decision the maryland cover peals did that in the rice case which is cited in the american immigration lawyers brief they looked at the ginsburg a way of committing the offense as a synonym for the means the definition of an element which this court used in richardson and i don't think it's just stupid i think the government uses it in its own brief is a fact that the prosecution must prove to the jury beyond a reasonable doubt in order to get a conviction on the cross and that goes back to the court's riyad opinion in taylor which is why aca is a categorical approach is because it turns on the elements of the statute of conviction congress never intended that conviction to his lawyer you know i know the information says a garage but i actually only went into the car that was parked outside the garage his lawyer would in all likelihood have said that doesn't matter if you say that you're just admitting your guilt in the same way because that is not an element of all cases it does not matter what was particularly charged in a particular case it does not matter what the plea agreement said it doesn't matter what the jury instructions said because the crime itself is a unitary this is not a statute that sets up multiple different crimes with multiple different elements where the modified categorical approach is necessary to figure out what crime he was convicted of we know what crime he was convicted of and it is not a generic offense and took to the extent there's any doubt about that i think it's important to go back to the point the reasons why mister camp one and why this court rejected the ninth circuit's approach in it you don't want to stay ok which is essentially what the government is now arguing which is that you can go to the shepherd darkness to try to find out not the offense of conviction but what this defendant specifically did and this court rejected that soundly and there were three reasons the first was the statutory intent behind what congress enacted which is to it's the it's the ira they do a pretty and all of this other stuff what was the statutory evidence this this court in taylor relied on the fact the congress used the word convictions as opposed to someone who had committed an offense and also looked at the legislative history which specifically indicated that congress did not mean eight conviction for a particular crime to sometimes be an act of predicate and sometimes not so if someone were explaining what what your client pled guilty to they wouldn't say  you know he was convicted for for breaking into a garage they wouldn't say that it may have been in an ordinary person may well use that description him they may also say he was convicted of breaking in to the garage  enough is it not the case that that's what congress wanted congress was not by bypassing aca congress was interested in what the person was convicted of which is why they used the word convictions they did not use the language for instance of the statute in one which is different and does not trigger a categorical approach because it looks to conduct congress could have passed that statute after this court decided tailor congress could have amended you know order to make it conduct based it hasn't done so well  and time but were required to argue the cases as we've written them when you're when you're doing that yes you know it does seem to me that this we're living in a very artificial world the judge kozinski his approach in that set forth in the ninth circuit in a separate and what would be the result in your case if we use his approach we would prevail here on judges since he's approach is exactly the same as one of the questions justice kagan asked earlier which is you can look at the shepherd documents for the very limited purpose of figuring out what the elements of the state crime are to the extent there isn't dispositive state case law or other interpretive aides that the court can use in this case we have dispositive state case law so judges in skis approach would would would work exactly the way we  think it should he was very clear that the modified categorical approach only works in the circumstance we say it works in namely when the state defines more than one crime in a single statute he did not say that you could look for means of commission trying to get it in so you can just say i don't have it or i do have it if i don't have it i'll go back and read it i promise and get it before i decide this i think you're looking at day care and you say look the word in the statute federal crime it doesn't mean what a person does on a particular occasion it means the kind of thing in a statute so imagine we had the word burglary and that all the statute said and then a court said you can commit this in any one of five ways about a house a car etc and even if the charging document there said house that wouldn't be good enough because the crime is what the so you start there and you say now what difference could it possibly make if you need a different section of the statute there are some statutory words that they say just what the court just said in the other case know ok i'll go back and read it i mean no i mean i'm waiting for your and that's what you're saying you're saying that in both cases the key point is that the state the court was telling you in the first case read can be committed in different ways which means you don't have to charge it and the jury doesn't have to be unanimous in respect to it now if you take those same words out of what the court said and put it in the statute statute in the first case it should be good enough when the same thing appears in the statute and the reason is that your basic argument isn't the reason for that justice prior is that it does not matter for me because it's not  world whether the statute uses the word or and if the california statute in the camp had been phrased instead of saying every person who enters had said every person who enters an awfully i will fully then the outcome would have been completely different in the government's mind even though it would not have changed what a california prosecutor had to prove it would not change what someone had to admit in a plea and it would create significant six and then the difficulties to hand someone sentenced based on something like that where the attention and the state proceeding is way focused on with the courts for michelle reserve the balance of my time thank you counsel administration a federal law i want to start where our petitioners council ended which was saying that what we're doing in this case is the same as as camps etc i think it just assume they are correctly identified the difference between this case  there was a component of generic burglary that was just not present in the state statute you didn't have stashed for alternatives and as a result of that you couldn't do the matching that happens under the modified categorical approach the approach is all about trying to match those defendant y on the face of the statute and i think mr funding is right that that would not have made a difference to our analysis well i think that it didn't make a difference to the court's analysis and what i would give you as an example and this was in the court's opinion in jest camps was  the way that this court showed that the ninth circuit was wrong was it gave two examples of an assault with a weapon statute it's an imagine that's an assault with a weapon statute that just says a weapon and doesn't specify any weapons and then imagine a second statute that says assault with a weapon in specifie that was an assault but you do have a component that you can match with a federal offense and so assuming that the component is an element so that gets you back to your first statement which is that it didn't matter whether it was an element or something else a man's was just as good as as it's phrased in the destructive and you know all of our cases it's not just a camp it goes back to taylor and shepard and johnson they all use the language of elements to camp in the introduction uses the word elements ten times so if we really meant elements or man's or whatever it's a funny thing it's a funny way to write one of our opinions well to think this is a critical question there are really two responses to it the first is when describing the visibility which is this question of can you divide up the statute for matching purposes the court said element and it also equated that with the statutory alternatives it did that throughout the opinion the second point is that there's a reason that when the court the court could say element in statutory alternatives interchangeably because a distinction between means and elements doesn't matter to visibility i think really the heart of the modified categorical approach is if the famous explained if the court has explained if you need to make sure that the defendant was convicted of the generic offense that the jury or the fact finder necessarily found the generic offense and not something else and you can tell back from the ordinary application of my categorical pro using the sheppard document you say we decamp makes it quite clear that there's two different kinds of looking  which camp says is you have to be able to say that a person was necessarily convicted of something meaning that the statute requires him to be convicted of something it is not good enough to look at the course of proceedings and to infer that a jury or judge actually did find something the camp says this in no uncertain terms that you know i mean sometimes those inferences can be very powerful and you can says it's not enough that what you have to find is a necessary finding in the sense that a statute makes something necessary in order for a conviction to occur and that's the distinction between elements and means and i'll just say one last thing and i know i've been talking for a while so i'll let you talk but the entire discussion between the dissent and the majority was about this right that the dissent said it's really terrible what the court just did it just created  between elements and nance and the majority said yes that's exactly the distinction we're using and we think it's the right decision distinction so now i members of this court thought that the distinction that we were using was a distinction between elements and means ok well if you were sponsors to that i think your point in the court's footnote too and when the court was talking about means as a general matter in jest can't it was trying to things not specified in the statute because of course the crime was also brought into scams but if we look to what the court meant in footnote two you're right it talks about a distinction between means and elements but the court's alternate conclusion rather than in the footnote two times is a response to the dissent and the dissent says this is the problem with the entire opinion is that it keeps on talking about elements but it's hard to distinguish between elements in eons and we shouldn't be distinguishing between those two things so the how opinion is this  element focus which then does the dissenter tax write i understand the question i will talk about both but no two in the rest of the court's opinion so if we look at this discussion unfortunate footnote two i think the court's ultimate conclusion is very telling and important to us because the court says there's no real world reason to worry about the kind of discussion with state law that we're having today the courts or whatever statute this whether elements or means the court need not per state law when state was drafted in the alternative you resort to the shepherd documents and i think you one of your earlier question suggested can we look to the shepherd documents to see whether something is an element and we think that if you need to look at where we think that that general approach is cracked which to us we you know we understood this to say just look to the statute of conviction in the sheppard documents now when and when when only one thing is an issue like in this case which is burglary about house then i don't think you necessarily know whether it will be a means in a different case where two things are charged but i think you confidently know that the person was convicted of burglary of a house in this case because you have you have a particular statute a particular state she's been particular state court decision that says exactly right is an element and what is means and this is this is not an element right but i don't think that you don't need to look any further than  dispositive state court decision on the subject a couple of a couple of responses the first is that these decisions i don't think these questions don't arise under the state courts very often i think between all of the resources in the parties in this case we've only found two state court decisions that address the place being burgled and i think that's problematic in light of the fact that this program really of a building or about this massachusetts example is really a parody of magic example that this court has always offered over divisible statutes so to not know now under state law whether that's divisible is particularly problematic under petitioners approach but just to get back to what i think was your central question i think this is really important about this campus and why we're reading the opinion our way aside from this at the end of footnote two which we think essentially says that for arca purposes when you have something in settles this question the court was not purporting to change that although i wasn't purporting to do something extraordinary like require a state law inquiry in fact the whole petitioners argument in this camp so all why you couldn't do the thing the ninth circuit wanted to do was because this whole statute that corresponded to generic burglary so you can't do what the court said is what you have to do which version of the offense was the person committed convicted of and it doesn't correspond to generic program you can have that that's stretching things i think ninety nine and he didn't stay unlawfully so how do we get courts assuming we accept your argument not to do the kinds of inferential retrying of the case that often happens when you're relying on shepherd documents and i think this really goes to the heart of why the court decided just camps the way that it did was the difference between a statute like one that just prohibits assault with a weapon and one that prohibits assault with one of eight pacified weapons when he just says assault with a weapon the court's opinion in this camp says you could infinitely divide up the trans the statute to imagine any number of sub prime and then try to match them to the federal offense when you don't have a statutory alternative the court's opinion and death camp says what you're really doing is just matching the facts of the defendant's conviction if you can find them in the sheppard documents with the generic federal offense so it is in the case where there is no statutory alternative like you said you just kind of combing through the documents and looking back in the court and death camps said don't do that but we're not doing that here we don't need to try to comb through the facts all we're saying is that this statute like many burglary statutes including the example the court has given covers probably have multiple places right it covers burglary of buildings and boats and whatever else and you just need to see which version of the offense was this person convicted of of a house or was it the burglary of a boat and so you look at the conviction documents to do it and you're just matching the offense as defined by the legislature in that case with the federal generic offense you're not trying to match just facts of years unless it at the event doesn't do the statute doesn't make it necessary for anybody to convict you of any single one of those things and one of the points since ninety five percent of cases and and please the statute doesn't make it necessary for you to plead to any one of those things so whatever information is floating around in these opinions nobody has had to find and the defendant has not had to plead to a particular offen with one of those alternative means well and that's the critical thing under not just a camp under all of these elements based decisions is that it doesn't matter what you did it doesn't even matter that you say you did something but we have to be able to say is that under the law are you absolutely the lure of required a particular finding that matches the generic crime and in this case that finding this not there well i think there are two different i think it's important to divide between the two different parts of the inquiry there's two questions right the first is is the statute divisible meaning is there an alternative in it that corresponds to generic programming and then the second is was the person actually convicted of generic burglary and i think your question gets to the heart of we need to make sure this person actually was convicted of generic burglary and i don't think you need to do a separate state law inquiry to answer that question because that's really what the modified categorical approach was designed to do that you look at the shepherd documents and a building whether by guilty plea or by a jury trial the only thing that's ever an issue in is a as a building and no one i think ever asked the question well in a separate different hypothetical case could a defendant who was charged with a building in a boat be convicted if they didn't find if it was the building or find if there were no one thinks about it because in this case where only the building is an issue you have to find the building to convict it i mean it's functioning is an element in that case if you find building and the person is convicted or you don't find building and then visual as a matter of walking in p convicted question we try to engraft the state law inquiry and to divisibility and it's one that you know the courts opinions regardless of what the court said and just can't the courts opinions definitely have not come before and then i think this goes back to the scamps and why we think it goes our way is that the court provided these examples  desk camps and it's provided them in other cases too and those examples just didn't depend on parsing state law those examples for it's i think the the most charismatic one was the one justice breyer suggested which is a burger re statute that covers buildings and houses that covers houses and both etc and the court has said on at least five occasions i mean this twice that that statutes divisible and it it just would be odd for the court to have said so many times that the statute is divisible if in fact it's divisible in some cases if you can find a case under sta the context in which the statement that determined this question only arises when a person has been charged with more than one thing so a burglary of a building and a boat for example and then the question is if this goes to trial and the jury and it goes to the jury does the jury unanimously have to find which he did the house or the boat or can the second six members find house and six members find out and so this this question actually just doesn't arise very much under state law i mean frankly i was kind of surprised when we started looking at this case i thought i'd be able to look at all fifty states and find one this and you know we just couldn't between the parties in this case i think we found cases in two states and i think another example that that illustrates how this doesn't come up very often is the drug statutes and if this court knows from other our prior cases that some state drug schedules list a lot of drugs that aren't on the federal schedule so in memory for example the court you know had to figure out is this like a federal offense or is this not like the federal fence in the ninth circuit justices who looked at this or judges who look at this said you know it's amazing because there are so many california drug convictions and there's just no one whether drug is has to be the type of drug has to be proven unanimously in the case where more than one are issue and when you talk about you know things like that work  court in itself has assumed that the drug statutes would be divisible and we don't know that answer for a case like california i think it would really be a remarkable change to what the court has done so far with a modified categorical approach it's really not something that the court opinions have done in any meaningful way and i think it would be unfortunate when the court has provided examples like a burglary of a building or a boat and the courts relied on those examples like the district court in this case and the court of appeals both relied on those examples  like even with the massachusetts statute the question has never come up so we don't really know what the tree has to find in the case of the house but where there's a word in the statute like they come and that alternative thing ho is not in the statute but rather it's a judge made interpretation of the statute and the courts say there are several different categories never before actually impossible for a court under those circumstances to say that the a b and c which it divided the statute into that there are elements you would have to say there me you think i don't think a state court would have the power to in the face of a statute that doesn't itself divide thanks to say that a is an element of the crime that has to be defined and then be is a different element of a different crime well i have no idea the answer that question i'm looking for ways of simplifying this case and if you knew the answer to that question it would help me but i think there are two answers to that question the first is we do think and this is the court left this question open and best camps about the extent to which you could use judicial decisions but we do think that in some circumstances a judge could or a court could define a crime i mean there common are crimes that are just defined by the courts and that those could be divisible but that's not that was and that was reserved in this camp that's nothing the court has had to answer but i think the second answer which hopefully gets to your question is you know can we either words of time or something with the state courts that we can try to figure out whether something is a means there is an element based on how the statutes written and i think the real trouble is that we can't i mean we've looked to try to find a source of law in massachusetts and we've also looked to what the court what the state courts have told us their approaches are and this is in our brief but for example they say you know we don't have bright light rules we have to use a multi factor task we set out rules but their mind bending in their application that one of the state courts said you know is not a predictable and i think actually the court recognized the same thing and this was a key component of the court's reasoning and shad shadd was the plurality opinion that was asking is either a constitutional limitations and how a court how a state legislature can define means versus elements that was a case in which the state legislature it said the jury doesn't unanimously have to agree on whether murder is premeditated murder felony murder and the defendant came in and said wow can you really say that the jury doesn't have to agree on that there should be some constitutional limit and one critical part of the court's opinion was that there aren't any bright line rules about what constitutes a means or what constitutes an element it's a matter of state law and there is wide variation in that so as much as we have looked we don't think that there's an easy answer to the state law questions and we think it's really asking a lot to think that federal courts are going to be doing those in the first instance i mean these are questions about the state legislatures intent when you're talking about you know either taking the questions kind of away from the state courts in having federal courts start to do them on a routine basis or we're talking about what one judge in the ninth circuit suggested which is we're never going to find out these answers must we certify these questions to the state courts and if you're talking about sentencing judges who sentence every day and have to use a modified categorical pro choice you know certifying to this to the state courts i think that really would be you know it's an extraordinary intrusion so you know if you end the day i think we think that the court really has a choice in this case between the approach that it's used for twenty five years and the examples that it's given and petitioners approach and we think that petitioners approach really would append the modified categorical approach it would sorry tell me what your approach is that you think is our approach sure yeah i'm going to the that a statute is divisible when it sets a statutory alternatives one of which corresponds to the federal generic offense but you don't need to undertake a state where our inquiry into whether something is a means or element which is the season elements don't matter and that's the thing that is contrary to twenty five years of this court precedents because if this court's precedents say anything they say that this is an element based inquiry which means that we have to decide whether something is an element i and that's that's really i think that the next thing i was hoping to say which is that the reason that the court has talked about elements as well as the statutory alternatives is because it wants to have an assurance that a person actually was convicted of generic burglary and the way you get the assurance is not through this state law inquiry into whether something is a means in a hypothetical case you get the assurance through the review of the shepherd documents and we think that the courts the end of the court that sounds that sounds very fact based you look at the shepherd documents and you see what they actually did but  this court has said in no uncertain terms that that's not what we do much as much as some people think that that's an intuitive way to decide these questions much as some people think that maybe we should have done that twenty five years ago but we don't do that we don't look at let's look at the documents and see what the guy did we say let's look at the documents and see if he was necessarily convicted of something i mean and that the law required him the law required that a particular finding be made in order for this conviction to occur and that's where your approach is something very different from what we've ever done because you're saying that notwithstanding that the lord did not require that a particular finding be made we'll take a look at the documents and decide that that find  was made well maybe i should clarify a little bit and say that we think that we look to see whether that required that this finding be made in reality in this case not hypothetically in some different case and what i mean by that is we are using the sheppard documents in conjunction with the fact that the statute less alternatives and what we are doing the reason that we're not looking at facts is because the alternatives show that the legislature has defined this thing entry into a building as part of the offense as a way to commit the offense and then the question the whole point of the modified categorical approach is can we know if the person was convicted of that thing or something else with certainty using the shepherd documents point of the modified categor take a truly divisible statute in other words a statute with three separate elements in it of which you only needs to be convicted of one and to figure out whether the one that you work convicted of the one particular element matches up with the generic offense it's not to do anything more than that the camp is quite clear on this on this matter that it takes it's it's it's it's three separate elements do you does what you were convicted of is that right elements to match the generic effect so i think that we're in agreement to the extent that we're talking about matching the statutory alternatives with the generic federal answered you say statutory alternatives and i say elements because for twenty five years we've been saying are what defines the crime right but i think that the the court used elements to mean the statutory definition because the alternative set out in the statute do define the crime and i take your point that the ultimate concern of the modified categor approach is ensuring that the individual actually was convicted of generic burglary but i don't think that we need to look to the separate state law question about what happens in a different defendant's case i mean that's what the means analysis that that was justice ginsburg's question right goes to which is what happens in a different case where more than one thing is that issue when when when we have a statute that sets out this is a form of burglary and the court has talked about you know different versions of the offense a version of the offense is burglary of a building and so the legislature has  that as an offense and the question is did the defendant can was he convicted of that offense i think and this i think goes to the other part of your question which is you're asking about how is that any different from fact finding right that's just fact the ending and i think the court answered that question best camps when it gave the example of a statute that doesn't have the alternatives like the weapons one as opposed to a statute that does have the alternatives because when the statute doesn't have the alternatives you don't have an option that was identified by the legislature as part of the definition of the crime that you're trying to match to the federal offense or not just you're not looking at something that the legislature is defined in saying will the shepherd document show that or do they not show that what you're doing is there's a hole in the statute right it doesn't tell you for example in test camps the different types of entries and interesting in that whole with facts you're just looking at what are the facts about the defendant did can i go in them from the shepherd documents and then you're trying to match them up with the federal generic offense and at that point you know the opinion and best camp says it's not a categorical approach any more than one circuit one judge and one circuit in the court call that a modified factual approach at that point right because you're just trying to match the facts of what the defendant did there's no statutory basis for calling this building this type of b burglary but here we have that statutory basis we had those statutory alternatives and the court has said on so many different occasions and the lower courts have relied on it that it's the presence of statutory or alternatives that are critical because when you have that those in combination with the shepherd documents you can make the decision of whether that statutory phrase was the basis for the conviction whether the person was convicted of that version of progress or not but when you don't have that statutory phrase there the court said th seven of its opinion in this can't you just act asking what the defendant actually did and that one should doing that when you're not looking at the way the legislature has defined the crime there's really no stopping point right and i think that was the one concern of the court's opinion and best camps is that he could have been convicted of something that has nothing to do with foregoing we'll just try to look through all the facts in the shepherd documents and see if there really are very the court said don't do that but here the legislature has to find this offense so that it all components of generic burglary are in the offense and i understand the court's instinct to think well we said elements and elements means we have to make sure that the person has had that this actually was proven but we think that the modified categorical approach itself by taking the statute and the looking at the shepherd documents does that it really satisfies the concern and frankly that that that was the message that we got and of course the court knows best what its opinion and scans meant but that was the message that we got from the end of footnote to this camp which says you know whether something is a means or elements you shouldn't parse a law you should just look to the shepherd documents and that's what we're saying is just to look to the shepherd documents and if something is the end of footnote to said in some cases you won't need to parse state law because you can't figure it out from the shepherd documents because shepherd documents are a clue to whether something is a means or an element and so in the situation in which state law is not as it is in this case utterly clear on the subject you won't have to go to one thousand layers down because the  p the shepherd documents will tell you because of the way the prosecutor has charge something looks like this is just a man's world looks like this is really an element well i mean we don't think you need to do the state law including the first place because the shepherd documents will tell you that the person actually was convicted of that and i just think this question about whether it was one i would only resent state law you have a state law that says exactly that this is not an element why wouldn't you just take it just because it doesn't matter that that case is about what would happen to a different defendant in a case where more than one thing is charged and it doesn't matter for our purposes what happens in that hypothetical case because this individual and the individuals we're trying to use the shepherd documents to actually enhance have just one thing right congress said burglary and you want to make sure that everyone who spent convicted of the same type of offense actually is treated the same and i think that's the problem with petitioners approach is that you could have defendants convicted in two states that be exact same state statute there shepherd documents could look exactly the same and then this answer might turn on whether you could find some sort of state law that would say what would happen in a different case where a defendant is charged with more than one thing so we think that the court's approach is really come from this concern about uniformity place just one of the point which is i think it's really telling that the reason that the court adopted i mean let's go back to where this started right it's what is burglary mean under the aca and the court adopted the burglary definition it did which is generic drug because it in compass the definitions in most states the court wanted to reach the common denominator in most states and the effect of petitioners position i think we all agree is that it would not be modified carol of course would not reach burglary in most states that the arc would have a very limited application at best under petitioners approach and of course you know investor camps which is trying to change you know twenty plus years of settled law and start having this new additional inquiry we just think you shouldn't do it here you have a state statute that specifically tells you that this is not an element of the offense and you were saying why it was the taylor could i respond i don't think that's true the reason that you don't care is because you can tell from the shepherd documents that the individual in this case and in similar cases actually was convicted of john burglary and that defendant doesn't care whether it's a means or an element because it had to be proven in his case for him to get convicted we think the judgment should be affirmed thank you counsel three minutes mr fleming thank you mr chief justice what has been on the books for twenty five years is this court's statement in taylor that the categorical approach turns on quote the elements of the statute of conviction or as the court put it or moncrief what facts are necessarily established by a conviction for the state offense it's been very clear from my colleagues argument that the government is interested in what mr mathis did and that is not what aca looks to it is not the categorical approach the government has offered no reason of principle to distinguish this case from mr de camp's case the only distinction between the two cases is that i was statute uses the word war with disjunctive list and california does it by silence by simply using the word enters without adding lawfully or unlawfully there is no reason to treat those situations differently given that both california through silence and i through and expressed list are sitting out only the means of commission and they have nothing to do with what tara calls the focus of the model of the modified and these traditional categorical approach which is the elements of the statute of conviction the drug statutes in california are an example of the workability of the position that we and the ninth circuit and the fourth circuit have set out they have there been many decisions we cited in our reply brief finding that the drug statutes are indeed divisible by drug type and so the modified categor approach does apply there are numerous other decisions where the modified categorical approach will continue to apply states obviously can also if they want their convictions to qualify as aca predicates can make sure they have a generic offense where the conviction clearly requires proof of generic burglary the government's position will require will cause a significant six and then the problem because sentence in a hansom and are going to be based on something beyond the mere fact of a convict then it would require this court to consider whether to expand want them to count as i could predicates no problem they can just go back and change the burglary statues but as as some states have generic burglary statutes that do require proof of all the elements of generic burglary if congress is dissatisfied with the reach of doing that they could amend aca so it focuses on conduct instead of convictions have been many calls for congress to do that but for twenty five years and started decisis is particularly important in the statutory area congress has let this court what do you lay back as fact that until this case the court has never analyze whether something was an element or means the the the the same point could have been made in de camp and they came specific well you said this is been established for twenty five years and the court has use the term element element element but has it ever before gone into the question of whether what it was talking about in that particular case was in a technical sense either an element or a means there was fun especially justice the issue did not come up before de camp so as the previous cases came to the court the issue either did not matter or it was not disputed and it is not uncommon for this court to take as assumed issues that the parties are not disputing in de camp it was disputed in this case it is disputed and for it to be resolved consistently with what the court has said afford to for twenty five years it's important that the court maintain the focus on the elements and not on the means otherwise the camp would have come out the wrong way we submit it came out the right way and this case should come out the