warning me please the court is parents my name is gregory smith i represent the appellant mr jody gold's barry mr gore's very pled guilty in this matter and the issue before the court is the district court's finding of a base offense level of twenty four due to the fact that the court found mr gold's very high i mean two prior violent felony convictions the one statute in the one conviction that is in question here divisible does it have more than one version of a crime some of which could be valid some of which are not and i think we would all agree that it is a divisible statute so then we move to the modified categorical approach and i believe the district it also included the information for which he was charged and that is where i believe this case this is where the rubber meets the road here this information lists a statue that does not exist in the court found that in the court believe that it was a typographical error by either the is find well which one of these seven subsections in this law enforcement office in a law enforcement officer second degree statute which one matches with mr gold varies conduct in the court said it was just a typo what they meant to do was put point one parent that a cold one which would be the first subsection of that statute and the reasoning was that it tracked along with what was read in the information but i disagree with that the information in exhibit fifty four cause attempted to cause physical injury to a law enforcement officer by means of a dangerous instrument by accelerating an automobile rapidly toward the law enforcement officer while in an intoxicated condition in his that also reference then on th that's not part of that's not part of the statute well what about the charge code what can can the court use the charge code to link that up to what actually the ultimate conviction w it may i'm not aware or as a different story i'm not aware of what these charge codes are i know the prosecutor tourney obviously has them and they file those with informations but i still think putting this intoxicated condition in here takes it out of that first sub section of the statue and it brings into play subsection six in subsection seven which deals with reckless behavior in subsection six in criminal negligence in subsection seven the one we're looking back at th at the statute and doing the modified categorical approach we can't be sure which one of those mr gold's barry committed it could be one it could be six or it could be seven in my opinion six and seven would not then qualify as violent offens s and and forgive me for it repeating but have you looked at the charge called manual to see whether that's linked up as that ever something that the district courts do in missouri to to try to help figure out which be right but you haven't looked at the that i'm not aware of the district for the eastern district was there ever going to charge codes i mean i think the standard is is looking at the information or the indictment depending on how that case proceeded in state court and perhaps in looking at maybe the transcript of the plea but here we this intoxicated condition part that's added in you know by the way that the initial complaint was for assault first they amend down to assault second and they add in this intoxicated condition language that brings into play other nonviolent offenses that are found in that statute in math and and taylor both talk about this demand for certainty that we must have when we when we find whether it's not a violent offense i don't know how we can do that here what is the meaning of the phrase alcohol slash drugs in the judgment what does that tell us and where do you see that your own judgment for this particular the i think it's the first page of exhibit us that tells us that they that well that tells us who ever typed that in put that in while intoxicated condition because it was found in the information but if you look at the statue there's nothing in there that says but i see where you're talking about that your honor and again the statute does not necessarily refer the law enforcement officer while intoxicated i think they added that in the provide more information but it's not a specific title of that specific statute but the assault first and i believe they put that in there to justify assault second have the proper statute well what information it looks let's just say assume for purposes of this question that you're right on the district court made a pretty clear ruling that i would've given the same talking about when she said regardless i'm still going to give you the maximum and she went into a fair amount of detail of about why she would do that she did that for me to find out if we get remanded back to be honest please the court my name is allison baron's i am an assistant united states attorney in st louis and i am representing the united states in this appeal i would like to begin first of all by disagreeing with the initial statement that mr smith made and that is the standard is not in determining which subsection of a statute applies it is not looking at the defendant's conduct the defendant's conduct as we have been told repeatedly by the supreme court of the united states as well as this court is completely irrelevant in  analysis so the fact that the statute the charging document in this case had a tagline explaining that the defendant was in an intoxicated condition and driving a vehicle is irrelevant to the court's analysis as to which subsection applied in this case judge by sig did a very thorough job and a proper job in following the law of this circuit in the supreme court in determining which subsection applied the first thing she did was look at the judgment in this case of  mister mr goldberry prior conviction and what she determined as at the judgment document south did not reference a statute section and was not at all clear as to which that's what statute section applied and so then the court properly looked at what she' permitted to look at which are the shepherd documents the charging documents and what she did was then turned to the felony information that the defendant pled guilty to and in that felony information she recognized a right off from the get go she utilized the charging document and compared it to the language of the statute sections to see which one applied and what she found is that there was only one statute section that utilized all of the three key words that were contained within the information and those three components were first of all that there was a narrowing men's rights not a reckless mens rea or criminal negligence mensura but a knowing mens rea and that the defendant knew about the cop knew that knowingly engaged in the conduct and second she found that the there was physical injury to a law enforcement officer and the third component was that it was by utilizing a dangerous instrument so the court six ad there's only one statute section which is subsection one one which contains those three components of knowing mens raia a physical injury to a law enforcement officer and the use of a dangerous and cement and mat information of the wild and intoxication intoxicated condition your honor those are the facts that's a description of the facts that the defendant engaged in but this court cannot consider the facts and the court that's the law of this circuit in the supreme court and that's been very clearly established we are never to look at the underlying facts of the crime and determine based upon the facts which subsection applies the limited documents  implicate subsection four whether it implicates or not your honor is not the question though the question is did george follow the proper procedure in this case which is to determine based upon the charging information the very limited language in the charging information did it which statute section did it comport with and in this particular case judge vice it found there were only three things contained in the charging document he knowingly physical injury with a dangerous instrument there's only one subsection that contains all three of those elements the other subsections particularly the ones that mr smith would ask the court to use our criminal negligence subsections nowhere in the charging document doesn't mention criminal negligence it mentions a knowing men's rights and so the court then properly limited its analysis and never considered the facts which it's not supposed to and believe me this is one of those times as a prosecutor who are always wanting to look at the underlying facts were told repeatedly we can't so that tagline which is a description of what his conduct was is not to be considered by the court in determining for this limited purpose which subsection applied and what  about the judgment where it who were it again says while intoxicated those are facts again your honor and there's i problem is that the judge looked at the judgment but it doesn't have a statute section on there and so that's why she turned to the charging document which she's permitted to do then i'll ask you the same question that i ask the opposing counsel what about the charge code there is a consistent charge code in the judgments and in the felony information and if you go to that charge manual charge code manual it seems to be that it's subsection four but your honor i can't answer with respect to the charge code that wasn't something that's not anything in fact that i am in the years that i've been prosecuting information there is the charge code number and i just wondered how have you ever had a had a case where you've looked to the charge called manual to help i don't know is that a sheppard document i don't know to determine which which subsection someone has actually ended up pleading guilty to your honor sheppard that is not an identified document shephard identifies documents such as the charging document which would be the information or the indictment and if there's been a jury trial you can look at the jury instructions that have been submitted you can look at the language contained in the plea agreement i'm not aware that shepard specifically includes includes charge codes and historically for us we have not looked at those charged codes because we're looking at the actual document before the court which is the judgment and then the law is that when the judgment is unclear as to which statute section applies which this judgment was your permitted to look at the shepherd documents and again judge fleisig in this particular case and looking at the shepherd documents  made it very clear a and proper determination that there was only one section which was contained all of those elements in your experience or in europe as far as you know in your office do you ever a number the charge code manual coming up as something to consider as to what someone had previously been can convicted of and state court i have not had that experience and i'm not aware of that you honor i've been doing a lot of these johnson mathis cases for our office and it's not ever come up in any of the cases that i've dealt with before i think in this that perfectly tracked and that's what she said it perfectly tracks subsection one course not supposed to look as to why it was charged that way or what the documents are supported but in this particular case she did not make a mistake in doing that that's what she was posted to that's what she did and there was only one subsection that applied and that is subsection one one that the judge did make an l turn it over finally said even if now you haven't raised  harmless error in your brief it's can we reach that let's just for purposes again of this question let's say we don't think it's subsection one you haven't raised the harmless error can we can we reach it anyway i that i think you're permitted to affirm a decision on any grounds that you find to be supported by the record your honor so but i do believe in this case the court doesn't even need to reach that because i think this is a clear cut case the judge likes it follow the appropriate methods as demonstrated by this this court in multiple cases and that she reached the correct conclusion i cannot stress enough that the fact that there is language in the information that says the defendant's conduct involved driving a car  e intoxicated is absolutely simply irrelevant to a determination in this particular case as to which of the subsections applies moving on to the next issue which was the number of firearms judge hely i believe that's probably why judge fly six and that she would give the same sentence regardless she made a very clear record that this particular defendant had a substantial number of firearms one of which she believed at least by a preponderance of the evidence that he had used to shoot his mother with  i think her record couldn't be more clear she had a plethora of firearms from which to determine how many but he possessed at least three firearms which made a very good in convincing record of that and based upon the standard of review that the court has with respect to that issue issue of burglary second degree of a building as a courthouse that is presently before the court in bank under united states against nailer which was argued before the court in september of course i would urge you to rule today on this case while the law properly determined that burglar second of the building is in fact a violent felony and a crime of violence under the statute that is so completely different from the iowa statute mathes that it compels a different result so this with respect to to my original argument mr burns this is stressing that we're not of course not allowed to consider facts and i agree in some circumstances they're not but they can't the court cannot ignore the information when it's that's all it has to look at to find out what did this guy do that's all they have so to say that i can read the first ten sentences but ignore the eleven i don't know how that's possible with respect to the  arguments judge kelly i'm with you on that one your concurrence and nailer i completely agree i i think that the missouri second burglary statute contra to missouri burglary second i firmly believe that the government and the state does not have to prove building and inhabitable structure that they don't have to do that missouri in the case  polis case missouri puts in in one thousand nine hundred nine they added and have rules in habitable structure to the definition and that listed a whole set of different ways that a burglary could be committed not just a building not just a structure a car a boat a plane those are all means of committing that one locational and that the state must prove that there was an unprivileged entry that's the first element into some location not just a building it could be any one of those things and then they have to prove that there was done to commit a crime there and they have to prove three hours which i just listed but the fact that a in an have no structure list all those s or the district of or in between building and have a structure should not be enough two to claim that there are elements but i'm not going to take any more time on that i simply asked that that the court remained on my initial