hurdles the government has on the aca issues even if you let the government on the aca arc or come last or even if you let the government reverse course again and go back to the modified categorical approach and even if matheson gets decided in the government's favor which would go against the majority of the circuits the burglary convictions can't be counted and there's at least two reasons that's the case the first reason is that the statute here the washington burglary statute is it isn't a finite list that they camps requires the definition which i quote it thirty six of opening brief just quote includes unquote the things in the list phrase at the end of quote any other structure unquote and the state courts give that independent force i cite the state the ganske case in my brief where it gives that independent force so even if rendon gets overruled you and when you i don't think you get around that by having a list and then adding any other weapon which is essential but the statue here doesn't it was addressed specifically by the eleventh circuit in the united states versus howard case that i cite and i think that's a very well reason decision there's also a second reason i'm sorry what does rend do in this context well what read on does is you can't get to modify categoric of course the only way you can even look them out of high categorical reports is first if you let the government change its mind about what this camp says you use the court documents for is to determine which statute to rephrase the defendant was charged and convicted under you don't have that here none of the informations in this case in the court records which are in the elice both in all the informations neither do any of the informations choose one of the possible things in the statutory list of building the only statutory term they h building so you don't have the selection of a statutory phrase now you do have in the informations a description of the building with an address and either in one case quote auto body shop unquote or not the case quote residence unquote but those warrant one of the statutory phrases that's being selected the way desk camps talks about there's those there's nothing in the statute about a quote residence unquote or a quote auto body shop unquote and frankly each of those thing each of those th currently ledges in the front yard and becomes part of the kirkland so i mean we know what's i mean the fact that some pieces of property also include open space is not going to defeat mean because it's hard to think of any piece of property an office building a residence a home and a prominent building doesn't include some small area right of open space so the fact that the description includes some open space is not going to be a win for you or i think it is your honor because the question here is whether it's narrowed by the charging document first of all the questions whether now now when you and i are not getting it all t fight about what residence means and includes and of course the question under discounts is what a jury and or court found and the reason we have an exception to a pretty is because we're not going to get into a fact finding dispute about what people are thinking up so i think that's why all you used the court documents to and i think so i think your argument is because part of the residence includes open space  building that one can break into right but i think of though you might have to cross some open space to get to the billet i think a person who pled guilty a person could be found guilty and could plead guilty and have in the generic definition excludes everything that has a front yard then the genetic information becomes very narrow because i don't know very very few houses that have no except the generic definition is a building around it but residents certainly could the other problem here is what this camp says you do precisely don't so we don't get into this argument interprete ing what the defendant admitted and what the court found this camp says all use the court records for is to choose which  phrases listed in the statute so you'd have to have the phrase residence listed in the statute and it is not here so that's your problem number one i think the reason this can't said that is precisely so there's not an argument about what  argument on the issue we were discussing your position is that if you are dealing with a house with a residence that has a front here on it has to say house and if it statute we wouldn't have this problem if it was in the statute the word residence and there be case law interpret ing residence and or another statute defining residence and it would either say it means just the house or the house plus the yard and then we'd know whether it qualified as a building under the generic definition if it's not in the statute it leads to precisely this problem which is precisely why you can't use a phrase and i guess i'm mixing the arguments intertwined though that's why you can't a phrase that's not in the statute i see i'm down to five minutes i was hoping to talk about the other issues but i don't know if your honor has a question when i was twenty we want to get to the conviction issue the search the search and yes and there is the miranda issue too and i do have a very strong argument that it's not harmless error but let me talk about the the search issue you have a very nice but if i can use that word set of cases that show you both sides of the spectrum and in a way the middle on the side of what's insufficient you have this court's morales case in the supreme court's j l case on the side of what's sufficient albeit just barely you have the supreme court's white and navarette cases i say just barely because the supreme court itself called those close cases and then you have several ninth circuit cases that are basically like navarrette and or i guess mostly like navarrette as opposed to white those cases all have much more than we have here your honor in white you had this very detailed prediction of hard to predict activity that then the officers actually observed and navarette you had a combination of four different things you had knowledge of the informant based on actually seen the activity you had reports being made almost immediately after the events you had ongoing dangerous activity and you had the nine one one system being used one of the ninth circuit cases you had a department of transportation employee you refer referring at through his dispatcher this case had nothing like that there's only one instance where the informant claimed to have actually seen mr door with a gun and he was looking down a driveway at night so even on the face of it you wouldn't think he could be sure it was not something that it just happened the agent had in context thought it was quote recently unquote but cross examination he admitted all that meant was sometime within the last year you have no nine one one call you have no prediction of hard you have no hard to activity here just mr doors residence and how and  you have no nine one one call with a person who just happened not to give his name which is the context of all the other cases where he gave his name his name is joe no no i'm sorry that's correct time he gave he gave the first name of joe which is one of the more common names around and he specifically did not want to identify himself further he specifically said i want to be anonymous and contrast the nine one one calls at least in these cases where someone just made the and didn't happen to get asked their name in fact in one of the ninth circuit cases the person gave a name they just talk about how they couldn't then track him down with a name counsel when we look at the question of whether there's reasonable cause to make a probation search as i understand it as court as we look at the total circumstance it's the or it ten pence a little bit on what the state statute and condition is is the washington state statute and condition as is reasonable cause which the courts have said is the same as the reasonable suspicion standard so it's your regular reasonable suspicion standard but the standard does require is to look at total circumstance reasonable cause to make a probation search and the total circumstances to what extent can you look at the attributes of the person to be searched  what they've what they've been convicted before i guess it would depends your honor but not very much because here that the reasonable cause or suspicion you need yes right he's i'm sorry if he's been convicted of several offenses involving the use of it's doing it police officers or something else is that part of the calculation i think here it's reasonable cause in this case it's very diminished your honor because it's actually only one conviction back to guns and that was i think ten or eleven years earlier the conviction was actually not for shooting a police officers at least known only the conviction he was convicted of a lesser included offense but i think the answer is when it's ten or eleven years old your honor it's pretty  morning your honour's may please the court michael morgan for the united states taking things a little bit backwards with respect to the sentencing issues especially the modified categorical approach that may or may not apply depending on what the supreme court doesn't mathes the government a little hamstrung at this point because we haven't briefed that issue because at the time we filed our brief not certain had been granted in matheson so we just brief the case under rendon so there's been a very long discussion about how the modified categorical approach applies doesn't apply and the government breached it and i think that depending on what the supreme court doesn't mathis the most prudent course would be if assuming that mathis goes the government's way and they  the a circuit it would be to order supplemental briefing in light of mathis to really resolve these questions as counsel assuming that we decide that we're not going to overturn the conviction based counsel waiting i mean for a couple of reasons one if you can if the chorus of decide the sentencing issue today you have to decide it under rendon under the rendon analysis which the government concedes that while the governor has an argument that under rendon we actually win if the court if the supreme court disagrees with the methodology analysis there then assuming the if you bought our argument then the defendant becoming in asking the court to recall the mandate aftermath this is decided conversely if the governor if you don't buy the government's argument and you were to apply rendon and say no these convictions don't count and the supreme court disagrees with rendon in math then the government becoming an ass new to recall the mandate or if you were inclined to do that then the g categorical approach that is subject to the courts because we looked at the documents and looked at the statute and the government loses anyway we could say that you could do well if you i suppose you would reach the same result but that would be a an odd analysis but if the court were inclined to sort of assume apply matheson say the government loses under mathis the government would like the opportunity to brief it because we've never i mean we can't be faulted for filing our brief under the state of the law at the time it existed in this court that state the law still exists today but is it minutely i think everyone agrees is in flux and may or may not change else would you go back to ren purposes of divisibility rendon reads a statute that even if it's listed in the alternative as not to visible if the statutory alternatives ard means and not elements that's that's the that's the rigid means elements distinction that rendon adopted and subsequent cases interpret and don't have even counted it further is that you can't go to definitional statutes to try to figure out what a term means you're stuck with the statute itself so for example in our case there's the burglar statute defines precludes unlawful entry into our remaining in a building but the term building is the find elsewhere to have a list of options some of which which w satisfy the definition some of which wouldn't now prior to rendon under the way i've always understood the modified categorical push to apply in that circumstance you would look at the shepherd documents and see if the person was charged with one of the options that matches but as this court held in simmons and a prior case as this court reasoned don't you don't do that anymore you can't go to those definitional statutes you're stuck with the statute of conviction itself so therefore you agree gun with respect to rendon well i'm agreeing with mr gun to the extent that rendon would preclude application of the modified categorical quote in this case the government believes that if rendon and the cases interpret a rendon are taken to their logical conclusion second to be burglars actually categorically a violent felony because the statute of conviction unlawful entry into or remaining in a building matches perfectly the generic crime defined in taylor unlawful entry into or remaining in a building so if you apply the logic a friend don't rigorously as this court has interpreted subsequently again excluding resort to definitional statutes it's actually now categorically a violent felony and that's somewhat at somewhat a counterintuitive result but it logically follows because the prior cases saying that the washing burglar statute is overbroad because it's definition of building we're looking to alternative means of committing the crime but if you take rendon seriously means are irrelevant what's irrelevant what's only relevant is the element and the element is a building and that is the exact element that was in taylor so even though there may be lots of case state case law that includes things that are true not buildings sure and even even here we have a state definition that include the clearly includes things that are non buildings i'm not saying that say that that the government's argument is like an intuitive one i'm saying it just logically follows that if you take the court's precedent seriously that say definitional statutes may not be consulted for purposes of account of a rendon analysis because they set forth alternative means and alternative means  role to play in in this analysis we are only focused on elements then that body of case law that you're referring to is essentially a dead letter now that's not the approach that was taken in mathis and i doubt that's the approach that the supreme court will take when it be it's not normally made to blow up people somebody intended to use it that way if there was a finding of intent and that  arguments and the court adopted the probation department calculation so it did not make an affirmative finding that mr door intended to use the sealed bomb as a weapon and make any affirmative finding that the guns that were found you know in his place were used to connection with drug dealing it made no such finding although under the guideline that such a finding is not required what was required is proximity to either drugs or drug paraphernalia the record shows that the firearms earlier that morning were in the living room with the drug paraphernalia so that's sufficient to support it as just a factual matter the court but the court made no specific findings on these it's a non lethal weapon akin to the stun grenade that the court in ruiz said qualifies a struct device there's no requirement in the statute that the weapon be a weapon that has to be directed at people and that kind of has to be the case right because if you think about the most common weapon enhanced meant firearms well firearms we are told are not designed to be used against people shotguns are designed to be used against birds but they would still qualify as a weapon so to this something like that to inflict serious damage on the person understand the court's point and that's the logic for why dynamite is not normally a destructive device because it has its main purpose is legitimate that it's weaponized whereas a sealed bomb its main purpose is to be a weapon i'll be at not a weapon against people but there's no requirement in the this statute that equivocation i thought was to make noise not to hurt seals but to make enough noise through as well as to stun and disorient them it's quite a bit of ex e it's sufficient to just like an m eighty isn't it just a little more than that too but yeah i mean it's it's sufficiently explosive that you have to have an a t f license to even have one so you know we're not talking about a little firecracker here i see i have two and a half minutes unless the court has any further questions on the sentencing point like to briefly touch on the legality of the search the consent issue was fully briefed i'll quickly just get to that the probation search we're talking reasonable suspicion here which is a low standard and we have what we have here is we have a tip from a not truly anonymous informant i mean the informant gave plenty of identifying information what else did he say besides joe well he says his name is joe he says he lives in he's a truck driver he gives the full name of his girlfriend so and in the testimony was that through the use of the girlfriend and a state law enforcement measure known as the lar program they would have been able to if they needed to identify joe through his connection to the identify girlfriend there's also the fact that joe was referred to the agent through a known informant so the informant knew who joe was and the agent knew who the informant was so all he had to do was ask the informant the informant been like it's joe jacob so he was easily identifiable much more so i would say then then one of the cases where this court held that it was in a confidential informant was identifiable which it was a used p s driver who in a company of thirty five thousand people would be identified because he drove a route well what's if that's identifiable then so too is joe and there's much more that that that corroborates what joe said i mean perhaps most important is that local law enforcement had confidential informants that confirm the information that the lo authorities that mr durrant was dealing drugs and had guns there was the circum the odd circumstance that when the agent went to surveil mr doors house someone in mr gore's vehicle followed that agent as he took a circuitous route through the neighborhood that's very odd behavior that the house was under video surveillance although all the objective information tied back to mr door i mean he had three vehicles that all tied back to mr door he lived at the address probation confirmed that the at that the that the vehicle believe it's been waived but if your court doesn't think it's waived it's completely harmless exhibit three a one way puts the lie to any ad which it's one of the audio recordings puts the lie to any idea that there's any innocent interpretation to his recorded jail call that's the one where he says i had two guns i had two bullet proof vests so what but then in the next statement which which is not in the briefs but it's in the recording he goes on to admit that he had the guns that he had them hidden in his stove and he was surprised that the probation officers didn't find them when they had searched earlier so he flat out admits that he had the guns in the recording the full recording  in the record it is been supplied to the court and the full recording was played for the jury repeatedly so the jury heard that full recording many times including in closing argument so there is simply no way in the world that that recording has any innocent explanation so he confessed on tape to the crime so any any and all of and every one of the other thing i would want to point out is that every piece of information in the written confession is  bottle try to stick it on the two minutes quickly on the reasonable suspicion issue a response i think the key here is that the informant affirmatively said he wanted to be anonymous and he hoped and thought he'd be anonymous that's really what goes to the question of whether a person might be making something up because i think the the question is whether the person thinks he can get away with making something up and i think that goes to whether he thought he was anonymous and supposed whether he really of this is not a cold call this was somebody who knew somebody right so you can't hardly be completely honest when you have an intermediary who knows your there but he thought by saying he wanted to be anonymous he was hoping and thought he could be i think that's what i suggest your honor it's certainly not like the u p s driver who drove up and personally presented himself to the agents and gave the information and they just happened to get his name on the other issues you know this  remember the test here is whether it's harmless beyond a reasonable doubt he didn't say i had two guns he said two guns a bulletproof vest big deal that could be referring to the charges but what about the rest the recording the rest  recording says in a way it could be harmful looked at one way but did your heart your you're hiding guns a bullet proof vest under stove burners there's something that doesn't sound very feasible or possible so i think a defense attorney could make something out of that granted it's an uphill battle but the test is whether it's harmless beyond a reasonable doubt whether a defense attorney could do anything with that is very different then to a law enforcement agent who you're going to now have to call a liar yeah the guns were mine yeah climb mt rainier with very little training last quick point on the idea that men don't doesn't let you look the state statutes i started to say a word that was too strong but there's just no way that's really don't says you don't look at state statutes to determine divisibility redound doesn't say you look at don't look at state statutes to find out what the word in the state statute means or look to case laws your honor was saying how else would you know what washington means by building how and when you know what washington means by interest remains on lawfully and by the way if you're going to get technical about the words matching they don't match exactly the washington building matches exactly but the washington statute says entering or remaining on lawfully and taylor says unlawful or unprivileged entry into or remaining in those are actually not the exact same words they're very similar but of course you have to look at case law and statutes to find out what these words mean you can't just assume building in the washing statue means the same thing as in taylor and you have to look to case law statutes to do that finally i would fault the government for not briefing the modified categorical approach it was right there they knew that mathis was pending math things what effect would that have in this case well well your honor i think you should allow the government to reverse course a second time after having tried to take advantage of and done affirmatively if you do let them then it's it would opinion that might reflect his cooperation or offer to cooperate i was going to file a motion probably today just asking the court to consider writing the opinion in a way or not not public publishing it to avoid that being seen it'll be explained in my motion i just want to like that