it morning thank you i'm sorry that we had some technical difficulty for the delay the start of court today but we are now ready to move forward with that think we can see everybody in here everybody that need to be seen and heard briefing raises a number of issues related to that question but i actually think this will down to a really narrow issue because the government seems to agree with us and generically requires at the very least entering into buildings or structures that are otherwise and that reflects the supreme court's language schappert that opt out only includes burglary if it's committed in a building or an enclosed space but we disagree sure your honor so i think that that was more to the question of other structures on the property so i don't think that i think that to divide up the issue is there is too distinguishing structures doesn't seem to be squarely raised instead and that he says about vehicles and uses flying so not nearby structures and the court certainly didn't look at underlying tennessee his lawyer define what's acceptable in terms of  issue shepherd saying that i only include committed in a building or an enclosed space over cardless of how this state and i agree that that's a harder question considering steps language this this issue of enclosed buildings near a dwelling that's just an override certainly shepard's limitation on burglary but it has to be an enclosed space and under louisiana case law collected in mitchell burglary encompasses nearly walking into  as a separate structure and then there's metal sheeting just protecting the gap in between for rain but that doesn't change the fact that even if i connected structure is included that structure still needs to be enclosed is the notion that what you're trying to deal with is the likelihood of a violent encounter if somebody if i leave my car out on the street tonight somebody breaks into it there are likely to encounter me ok on the other hand breaking into my house however determine my car or my house my attached more likely to be there then it is just a car that's part somewhere so that is that is why how can you really say that it has to have a you know for for sidewalls or it to be a burglary given the current law of the spring poor because again i think that stan is discussing structures as defined by the supreme court connected structures as defined by the supreme court there's no indication in set that he was limiting previous case law beyond the fact that it was just saying that taylor's general statement that non so walking into someone's yard which scouts in james that is on the lower end rest but of course does involve some rest of the violent confrontation but not as much risk as if you climb through the window of someone's  ram so this is about drawing the line where burglary normally draws the line and so we know from james that you're blocking in someone's yard that might be dangerous and it fell under the residuals office because  of structure is it if you walk on a dac and i think that that shepherd draws a really clear line that it's when you enter an enclosed space and that makes sense that the type of conduct that generic burglary covers because out its core burglary is about creates a greater possibility of a violent confrontation that was taylor's wording a greater possibility of a violent confrontation between the offender and the occupant there's no means a quick escape their face to face with one another which is why i think the report said that nonsensical structures that are used as dwellings are going to count because that's the type of place where you might encounter a person face to face which isn't necessarily true open spaces and as james that under generic burglary isn't true of an somehow help that an enclosed spaces count as long as they're physically touching a dwelling in some way and i don't think that that's what that helped and i don't think that it could just like step in light of shepherd because our nose was divisible or what's a situation there so i don't think that it's st of all it's not to the ball so i think that that's the starting point my memory also of the sharper documents is that it wouldn't narrow anyway but the statute is not a violent felony to get to how do you distinguish your post re have opinions events carry a burden both of which conclude that the defendant substantial rights are not affected when the defendant has prior felony convictions and doesn't seem to depend upon whether or not he knew at the time in the place that he had prior felony convictions so i do think that in in these posts read the decision there is some of permanent advents relevant case there was evidence of concealment of a weapon when approached by police and as well as documents showing that the person had been informed previously that allen status in hicks which is the case that started all  evidence contemporaneous knowledge of status and city ask you that's what i want to ask ok i want to make sure i have the facts right as i understand it the charge here is based upon an event in twenty or  the p s ours reflects on on the record gets to the night that he was in jail from march two thousand and eleven to make two thousand and fourteen ok and so here is it and it is i did not see any indication d now i understand if you were eighteen and you pled guilty to something you got probation and now you're sixty maybe you didn't realize that was a belly i get that argument this isn't that case so under what theory could we possibly say your client did not know he had been in prison for a few years for three years and two thousand and sixteen when he was last out on th when he does not have all timers or any other mental health issue would have made with additional knowledge i think i point just about that to mean get stander about roulette and or standard of reasonable ability is just that we shouldn't be looking at the evidence in terms of whether we think it would have been found not guilty it's whether there's a reasonable probability that he would have just helped the government to its burden to prove that additional element came with the problem is really great and i can understand why he doesn't like they pled guilty now because of  burglaries he's committed one after another that that's something he wants the jury to hear oh yeah i'll make sure the jury knows i had ten crimes felonies before this is spent three years in prison but i want the jury to know that it's a little harder particularly a prior felony burglary convictions including seven in louisiana and one in mississippi and then also the amount of time that the defendant spent in jail so this really would be a peculiar case to be the st one to have a conviction vacated just based on that evidence which is similar to the evidence that was or why don't i want to move on to the burglary issue and the st thing that i need to address here is that i think that opposing counsel is taken something that we said in our brief out of context we do not concede that there the whatever the building or the structure of the enclosure at issue is needs to be enclosed opposing councils relied on a statement and shepherd and so a couple of problems with that one is that shepard wasn't a case that where really the definition the definition of burglary was an issue shepherd obviously was about some other things and the specific line here is a line at the beginning of the very st paragraph of the decision it's just the sort of throwaway line talking about what is changing any of the supreme court's prior definitions of burglary not that it's adding some extra requirement the tailor that wasn't there before and fact my reading of a shepherd in the way that some other federal courts have applied it and that it actually extends the definition of burglary burglary is a building a structure or an enclosed space and site to one decision by the th circuit it's not in any of the briefing but if you want to example of that it's united states versus perry and the  argument i can move on that's fine no i'm just you know the rule is if you don't have something in your brief you're supposed to provided two opposing counsel now i granted that you can't hand it across the table to her or out in the hall while you're waiting but you've been in the waiting room for at least fifteen minutes but be thirty minutes this morning and you didn't say i have this other case it's not my brief but you had it really handy in case she needed to for argument i said that's not appropriate  is more of a policy reason for why burglary is included it's not an element of glory that taylor has said you know and in fact taylor explicitly rejected that it's up but there we are not going to create a subset of burglary crimes the most is why it covers that hardcore because the basic core of this whole generic burglary notion is trying to prevent somebody thinks i'm on vacation and wants to just come steal stuff from  have but it turns out because my vacation in your i am now meant to have an encounter that may lead to something far worse than having my you know stuff whatever it is stolen right so that's what i was trying to opposing counsel in all but one of those cases we're talking about structures that are part of the dwelling there part of the house we're talking about a carport that's under the roof line of the house it is essentially another room on the house it's part of the  welling another one of the cases talks about a totally screened in porch with the doors that lead to the kitchen into the bathroom again it's part of the house the only his that opposing counsel sites where it's a structure that is not part of the same building that doesn't fall into this the roof line that in this case from the state th circuit and that's the case that involves the shuttle and at a minimum the shed is pertinent to the house and also the th circuit the state th circuit noted falls within on a property that is completely surrounded by a six foot fence so for all of those reasons at a minimum that building is a structure for purposes of taylor it's a pertinent to the house which the supreme court you know no problem with that  enclosed space in my experience but the shed is an enclosed space it's a structure there's a lot of different ways to go about this but the the shed counts under the federal generic definition of burglary i mean we mention this in our brief th affirmed state state louisiana sixty two point two twice before it's over those were under the more narrow way to use burglary burglar of welling in the guidelines formerly in the guidelines this court should do the same here thank you we have your argument structure so that's st stick its bans non buildings to burglaries and things like tends that are used for for a dwelling and then the last category is if separately security were occupied working there are and that includes garages things that are separately secured and that words with this general understanding a burglar is breaking and entering i would also just warrant i do think that the government's interpretation in this case sort of quietly expands the scope good your generic not just so it includes louisiana law but it would include state laws that aren't call it doesn't have a categorical approach we don't just look at the title we look at the actions so this would include going up to someone's front stoop and just taking a package off of that this would include  reaching your hand into someone's mailbox is attached to their house that is fundamentally not breaking and entering and it also sort of starts to blur the line between curtilage and going into the dwelling itself which i think is the easiest and the best