afternoon your honour's my name is keith hills and decker i'm with the federal public defender's office in phoenix and i represent the petitioner in this case shaheed muti i'm going to watch the clock and try and save a couple minutes for rebuttal ok this should reverse the denial of mr mitty's section twenty two fifty five motion and remand with instructions to granted the district court incorrectly classified his prior conviction for breaking and entering as a violent felony although it correctly classified his conviction for assault with a deadly weapon as not being violent was not breaking and entering conviction or burglary conviction so the name of the statute in north carolina your honor is breaking and entering although north carolina helpfully also has a burglary statute but this one is called breaking and entering under state law but because we all think of it as a burglary because we're comparing it against generic burglary i understand where the confusion comes from and before i dive in i just want to say if if the panel doesn't have any questions about the assault conviction i just want to focus on the breaking and entering issue because that's why we're here again six months later right north carolina's breaking and entering statute is overbroad with respect to the generic to definition of burglary because state case law holds that a building is any structure that has four walls and a roof and that is overbroad as the supreme court has explained to us recently in the decision because the panel held this case over for to wait for stead i feel like the place to start analytically is to just explain my view of where the ninth circuit case law is with i think that still helps you or hurts you well your honor st my ultimate position as i explained my supplemental brief is that state does not change my can contention that north carolina's burglary statute is and start breaking and entering statute is overbroad but here is why well to my question that's where i was going ok so what if it helps you or hurt you which one step still doesn't hurt me i guess is the answer to your question still doesn't hurt me because i help you well it makes it harder for me to win but i think i can still win for this reason still it makes clear that a statute of a state burglary statute that punishes conduct involving literally any kind of structure is still overbroad with respect to the generic definition of burglary under the our career criminal act and north carolina's case law confirms that this breaking and entering statute is one of those statutes that applies to literally any building or structure i should say and because of that feature of north carolina law still it doesn't hurt me it still explains why when it's just that perhaps what this panel will end up having to do is publish an opinion that explains how this circuit's case law about what generic burglary means was affected by step it and then  it's the panel is going to rule in my favor then explain why north carolina's berg breaking and entering statutes is still overbroad because it punishes literally conduct involving literally any structure that think in terms of building or structure the generic definition of burglary involves entry into a building or structures it doesn't change that but that was true under taylor the narrow question involved in state was whether a vehicle that is adapted or used for overnight accommodations of persons is it whether it's a state statute that punishes conduct involving entry into that kind of place falls inside or outside the generic definition of burglary and i thought you objection to the north kilometer statute was there any incompetence any type of structure that is but punishes conduct involving any kind of structure like missouri which was involved in taylor like iowa was which was involved in math there's those two statutes the state opinion says still fall outside the generic definition  is statutes like missouri's and iowa's fall outside the generic definition because the state statute does not limit the type of structure into which the burglary breaking and entering the on lawful involved in to a place that is adapted or used for overnight a combination of persons their misery and i was statutes punished conduct involving entry into literally any kind of building the gamble opinion on which the magistrate judge relied and that the government sites in its answer in brief shows that this north carolina statute here also applies to any structure that has four walls and a roof yeah i guess i think i read the state differently from because i read the intended for human habitation or whatever you want to call that requirement as applying only to movable structures like a vehicle has to the regular old things with four walls and a roof there's no habitation requirement that state imposed and so that's why i think you're just misreading stead if you think that somehow it has rendered the north carolina statute overbroad you know that and that's maybe what this court is going to publish an opinion good afternoon your honors and may please the court my name is alexander samuels i mean assistant united states attorney in phoenix arizona and i'm here on behalf of united states i want to start by turning to judge rawlinson this line of questioning and i think answered by saying that state is very clear about what it's holding is and i think it very much hurts the petitioners case here in his opening brief to this court and in his twenty to fifty five motion below the argument focused exclusively on the fact that the north carolina statute includes movable structures that are adapted for dwellings like mobile homes and that was the argument both in the district court in in the opening brief here and that argument relied almost entirely on this court's  state called out brazil by name and said that it was advocating it the state granted certain expressly to resolve the circuits what they grisel in part was was part of so since the time that the initial briefing was completed here and and since the time of the petition was filed in the district court the linchpin of mr muties argument here simply is no longer a good law the supplemental grave seems to acknowledge that to some extent and seems pivot to a slightly different argument which is that the north carolina statute is overbroad because it in ten or because it covers buildings that are not intended for overnight occupancy by people that is the language used in the supplemental brief but that has never been the test and  you can look at the fundamental supreme court case on this which is tailor and learn this from taylor taylor actually cites as an example of what would be covered under the generic definition commercial buildings business offices things of that nature so even taylor makes clear that it doesn't have to be a dwelling it doesn't have to be any sort of structure that's designed for overnight occupancy by people commercial buildings are sufficient as i think your honor noted i think something like a warehouse would be sufficient to fall within the generic definition and therefore north carolina statute is not overbroad here and i would note as to the name of the statute tailor also makes clear that the name of the statute is not controlling in any way it's the elements the elements here consistent with the generic definition i would also note that even turning grisel even assuming there was some piece of brazil that it somehow survived in detailing its conclusions the court there cited to the taylor case and tried to explain what it thought the definition was and taylor thought what it thought it meant and that sentence in which it dictated what it thought taylor meant was cited pretty extensively in the briefing here at the end of that sentence in a footnote the court cited a dictionary definition for what building means and in that definition it says that it includes a dwelling a storehouse a factory a shelter for animals or another useful structure distinguished from structures not designed for occupancy such as fences or monuments i think that definition even from brazil helps make clear what is and is not covered and that the petitioner's argument here simply doesn't accurately apply the case law i would also note the north carolina courts consistent with that definition have actually cited that exact same dictionary definition in the gamble case which is cited in our answering brief further showing that that they are applying a definition that is very much consistent with taylor and the supreme court's case law since then  the the taylor decision makes clear and also confirms this that restricting the generic definition to the common law definition such as just including dwellings is simply not consistent with modern law enforcement concerns that comes directly from stitt just last year trying to explain what the court had done in taylor and so we think it is clear from taylor from stitt that the north carolina statute is not  overbroad i would also point this court to out of circuit cases that have reached similar conclusions the first in six circuit have reached that conclusion albeit confronting different arguments perhaps than have been made here the fourth circuit most importantly has reached that conclusion in a published opinion and has repeatedly confronted a variety of arguments about why this statute may be overbroad has repeatedly rejected them and i filed a twenty a j letter last week to point the court to a couple recent cases in which they not only did that the did that in confronting arguments that very much mirror the ones that were made in the briefing here don't know we have a north carolina case that involves someone breaking or entering into a trailer that was just used to store stuff we do and that's the boss case  would point out first of all that was not really the argument that was made here in the opening brief and so arguably that argument may have been waived but setting that aside for a second there is nothing in taylor or stitt or anywhere else in the supreme court case law that would indicate that that type of structure is not a structure for purposes of taylor's generic definition taylor never said that the building has to be capable of occupancy by humans overnight and in fact when this court tried to explain what taylor's definition meant in brazil they use that dictionary definition that talked about a variety of types of structures including ones where animals would be the what i'm going i'm saying after state we know that something that's movable does need to be  adapted or designed for whatever the i see your point earlier on i think that's that is true and i think north carolina's statute is particularly well suited to make the analysis pretty clear here in that fourteen fifty four the statute we're talking about here deals with permanent structures or structures that have been characterized as permanent given how they're being used so in boston for example the trailer was talked about in the opinion as being up on blocks  it was not something that simply was being hauled john from a particular place to another place on a regular basis it was stationary for some significant period of time as a construction site presumably it would have been there throughout the construction project and then perhaps at that point taken down off the blocks and moved to another construction site in fourteen fifty six which is another north carolina statute they deal with the types of structures that might be more concerning if they were included in the statute here trailers that are being used on a regular basis as movable structures simply for transport of property if one hundred fifty six if all those items were included in this statute we may have a problem but that's not the case here that is what the missouri and iowa statutes look like that have been discussed at length by the supreme court the problem with those statutes is that they include any vehicle any trailer and the word any was was cited by the supreme court instead as as the concern there this is these statutes on their faces and as applied by those two states supreme courts make clear that they apply to a much broader array of vehicles of boats of aircraft not just ones that have either been permanent or been essentially rendered stationary based on the way in which they were used and the north carolina courts here have even said the difference between fourteen fifty four structures and fourteen fifty six structures is characterized by characteristics of permanence that's the language they've used and that i think makes this court's analysis given taylor good instead pretty easy in this case with that your honors if you have no other questions about the breaking and entering statute i would just note briefly on the assault statute thank you the court serially clearly doesn't need to get to that point here if for some reason the court was inclined to get to that point i think the petitioner is right that the ironic case is very much related on that front has been submitted to another panel already and i want to make clear  our view is the same which is that that case is very related and would likely resolve the issue here but again i think the breaking and entering statute is pretty clear here that it fits within the generic definition and that's enough for this court to resolve this case thank you thank bottle i just want to address one small point that my friend of the other table made and then give george wallace an opportunity to ask me any questions because i don't think i pick knowledge him during my opening presentation i apologize  one point that i want to make is concerning the waiver argument that my friend floated my argument in my reply brief about the boston case comes from the government's answering brief waiver doesn't apply if the  had an opportunity to fully flesh out a legal argument and i just want to say that there's no reason for this court to to address any of these issues on waiver grounds i think it's entirely appropriate for the court to reach the merits and with that principle justifies my argument that you know the scope of the places in involving the illegal entry are limited to places that are designed for overnight occupation of people and that would that principle would sensibly support the