controlled by taylor right this is the statute at issue in taylor right so tell me why why in your view this taylor not control this case with all due respect your honor i think the other controls he the taylor said so and that from last year or last month as i stated it's all i care about is taylor i think the supreme taylor has never been overruled the supreme court has had multiple pair america permutations of of how it's applied but it but it it decided a case involving this statute right instead he does that decision not control which would be of course that that if you if there are shepherd documents available  overrule their precedent even if and they've they've talked about this multiple times even if a bunch of later cases look like they cast the reasoning of the earlier case and the doubt i think another problem with the idea that we can go to taylor look to taylor the opinion that i think drives the bus here and i don't think that if we plied nadler the new other outcome can be reached other than the statutes and divisible and i think there's three tools before we before we get there i have another policeman ari question i think you have another problem has to be an exceptional circumstance and the government hasn't maintained that there's some sort of exceptional circumstance i'm actually arguing a similar related issue this afternoon and in the miller case which is a  parties an opportunity to be heard on it you know with whether it be briefing or whatever but we have the ability to raise and we have the ability to ask for briefing on that question right absolutely and so i guess what my position would be if this court wants to  have to brief it in the meantime i think the government has what is the issue for the supreme court well let me let me ask let me ask you this you know on the on the merits of that this was this was falling nine years later and i hear your response is probably going to be big johnson  retroactive the problem with that is the district court was silent on the basis whether used for the residual cause the enumerated offense clause the forced clause and then it comes up on appeal to us and we don't even touch the residual clause we say numerated offense clause for a wind force clause on the other and to me that it's impossible almost impossible for you then to show that the residual clause played any role whatsoever in the case judge you know obviously this issue has been flagged yeah arguments so i'm just not prepared to address fair enough fair enough thank you well that's that's not a time when it's that's more of them well it isn't last and last yet unless the walker case comes out and you have to understand walker deals with successive petition i think the government's been treating him differently than than here this is a first twenty to fifty five so it's an f three issue not an age to issue i think that's a distinction with a single reference in the entire record to johnson other than briefing on behalf of your client and it's interesting on your we asked researcher for people build on this issue the first issue and that was denied and so i thought that was strong indication from this court court that's what was my to talk about why would why would your client of ask for a c e o a on that well negative issue two to prepare a case you know we wanted to have all our grounds r and so i have to presume that that's a visible the issue and that's really the only issue i think that's that in question in this appeal is the statute to visible and i think there's three tools this court can use to determine whether or not  burglar scotch is divisible all three indicate that the statutes in fact indivisible the government has maintained the statute is somehow clearly divisible of course statutes can be divisible but usually see it in the statutory language itself which would be the first to a lot of luck to you i'm let's say the statute punished burglarizing a building more severely than burglarizing of the boat that would be a very clear indication of his of the visibility of the statute that's not this case i think the nailer primer opinion is very strong evidence of the indivisibility statute the other held that quote the sprinker of missouri has consistently held that this junk of alternatives missouri's criminal statute should be construed as listing various ways of committing a single crime and it cites to a missouri supreme court case for that were missouri statute number it's a list of prohibited activities just don't please the statute creates only one crime albeit a crime that can committed a very a variety of ways let me address the realistic probability test and that's what it's grounded on it's not a map as it's not in there or therefore that's in the story don't apply the test because there's no basis for let's say mathis and the other didn't exist and you guys h realistic probability says that that's all within the four corners of the statute i thought you didn't get to that inquiry unless you unless you had to go outside the statute no i think i'm under moncrief the supreme court case completely twisting the concept as far as i know a realistic probability means you have a statute where it's true it where it where on the face of the statute it's a theoretic posture theoretical possibility but that's not enough you have to go to the case law to establish that want to lawyer can invent as a theoretical possibility from the face of the statute is is real right and so your are your argument says no realistic probability choose the location in drafting the indictment and that's the monster ball from a study from a study of the case law and other evidence of you know the fact that you can say yeah but they could have said tant or could canoe or building is irrelevant i think my alternative argument would be that there is case but but you told me you agreed with the government that there's never been a case under this statute that didn't didn't charge burglary of a building improved burglary of a building under the nine years this version the statute was enough that i didn't find the case law and i want to be think that i'm understanding your argument is that if there's a list here and there needs to be no inference no assumption about votes or tense or boosts or whatever else was which is sort of odd  that we're criminalized here you don't even need a creative where you can look at the statute and say if you tried to burglarize or or rob a tent that's obviously going to be covered here and so there as it should be covered i mean it's obviously part of the statutes and that the physical force that overcomes reasonable resistance subsection paedo of the statute further defines it as a threat that places a person of reasonable fear and it identifies a lot of different things you could bear one of them's kidnapping last week i filed a rule twenty eight j a letter about kidnapping and how the government has conceded that kidnapping doesn't satisfy the nine twenty four c force clause and so i think that   which relies on what wasn't argued as opposed to taking a position well that's the way you phrased the power in that case you're saying that because they argued and didn't in that in that particular supreme court pleading they have conceded the issue nationwide that's the argument it was probably a circuit or the ace or whatever yeah so i don't know if they conceded nationwide but there's a thing that you're treating a failure to argue as a concession and i think that's simply not sound fair enough i mean unless unless if you want to give me an authority that supports the notion that a failure to argue is a can in in one case it is a concession in case b i think one wouldn't take me long to find the contrary already and i'm hopefully my my letter didn't state that it could be maybe mr wheeler highlight you highlighted that passage i think they conceded in that case in that case they didn't s yes that's out there thank you i've i've looked through the record i can't find a single reference other than in the briefing trying to raise this johnson issue and walker would seem to clearly apply it so what on earth was the united states doing you were absolutely correct this issue the burglary issue doesn't have the typical procedural history the dish of court initially or excuse me mr brown didn't initially raise the burglary as an issue in his twenty two fifty five petition he later rates it as a pro se issue and the court directed the parties to brief whether or not second degree burglary was generic burglary for the purposes of the encore a criminal act it wasn't there no alternative there we were simply directed to do that and i thought i think it would have been a pretty big overstep on my part to say well judge i'm not freaking the merits i'm going to go ahead and say it's too late  so there was never really an opportunity for anyone to address that timeliness issue in the district so if we were let me just ask the united states straight up on this if we were to order supplemental briefing would the united states take the position that the petition is timely and we waived it or would they take the position that you know i'd really like to assert the timeliness issue because i don't want to waste anybody's time at the piano or decide to do that that's another interesting question your honor because the united states department of justice took the position that in terms of johnson cases we were not going to assert the timeliness defense if it was the defendant's first twenty two fifty five petition now this case presents us with an interesting twist on that and i've tried to get an affirmative answer from by iraq in terms of what i should be arguing because this isn't truly a johnson not a johnson can you either of the two issues it's a curtis johnson issue which calls into question whether or not the second issue timely as well but the say it doesn't implicate samuel johnson in the least so the answer is we don't know you'd have to you have to check correct and correct that i apologize because clearly as i was going through this yet again it occurred to me that  in terms of both issues clearly timeliness is a major issue and probably a dispositive issue and of course would be a different story if this were a samuel johnson case then i then clearly retroactivity would be at issue that's correct yeah all right thank you that was helpful burglaries and when i typically charge burglaries i charged it under the inhabitable dwelling prong if you will of the one nine hundred seventy nine stat or nine hundred seventy nine statute was the element not just  hundred sixty nine statute however is a lot more clear that there is a building there's booth there's tent there's railroad car and i'm a trial attorney i make my living in arguing these cases to juries some of whom don't even there is very little question in my mind that i should lose that case the jury should almost certainly enter a judgment of acquittal and if for some reason there was a miscarriage of justice at the trial level and certainly the court of appeals as they didn't the missouri court of appeal specifically defined building and in that case the defendant as it turned out burglarized a semi tractor and a court when in and they said basically a semi tractor trailer is not a building because it's not permanently affixed to the ground there is not electricity run to it and so on and so forth and they assigned a very specific definition to what a building is you're really talking about up the stairs to list locations not no novelist and i understand that but my point is that if i charge building in this context as mr brown was charged with that is an element i have to prove that he burg element in other words you have to burglarize a particular location and there's a whole list of locations that would that would qualify from a building to a boat to a booth to attack and but there needs to be one of those the locational element needs to be satisfied by one of those things absolutely but that location element is in and of itself an element it is an element but then there's five different ways to to it to comply with that element which makes the means well there are there are certainly different means but those means actually become elements once the charges once a charge is submitted to the judge or jury but you're thirty five at times the earth already for that is that is the speculation that if you put building in the complete in the complaint that you have to prove a bill that i'm not sure of the answer that if it turns out to be a booth i don't know i don't i it may well be that because there are means if there means that it's ok for it to go to the jury and for there to be a guilt guilty verdict because you satisf honest and look at the back then it's then then the element is the is the location charged looking back at the materials that i've developed over the years in this case back in two thousand and five i would have never of guessed i would have appeared twenty one thousand arguing whether or get to pick one when you when you write up those jury instructions you don't get to pick a boat a house a building it's just one and you're bound to prove that one it's not in and around or there impair parent that tickles because there are different ways to commit the crime but you have to select when you submit the case to a jury which one you're proceeding different ways to commit the crime as a means not well there are different ways to commit a crime but only one of those if there are cases where there is an enhancement for the use of a firearm and if i don't prove that it's a firearm i don't get that enhanced meant mattress didn't change the world but if the statute says anyone who b sub parte one building two tent three trailer home etc etc and the practice is to charge a one or a two or three that even though the even though it's a just a bunch of oars it's the same substantive statute as if the oars were separated by subsection numbers that still a location element every case up to matheson sir held there and i don't think math has changed that it just said there's a there's ways of figuring out when you don't have anything as needed clean as one two three four and so forth yes how you how you figure out you have the substantive quiver one of a divisible one left the station element and the entire line of cases is always held an element is an element of a something that necessarily needs to be proven to a jury and that in my mind is the most simple way to determine whether or not the list becomes an element and when you charge a building you are obligated as a prosecutor prove beyond a reasonable doubt that the person burglarized the building and i but i understand the rule and i didn't practice criminal law but the prosecution charges in the kind of jumped up and proves in the disjunct i don't think i don't think mathis really addressed that and certainly i don't think they understood it now and and i agree i again i am baffled about this line of cases that has come out i share judge alito and your concerns about the way this line of cases has taken a turn to take what is fundamentally  fairly easy issue and twisted in ways that i don't think anyone could ever imagine i obviously read your honour's dissent a ridge judge shepard's dissent and i think judge alito justice  ways not a billion but substantial number of ways and some of those structures are buildings and so you have building or inhabitable structure and the terms in many cases are completely interchangeable consequently if  prosecutor as i was you could charge inhabitable dwelling and if on the property there was a building a tent and a railroad car theoretically you could get in to get to the jury by charging inhabited dwelling and so long as you proved one of the three you're fine but overlap that the fact that there's overlap i mean they all involve less the fact that there's overlap has nothing to do with whether they're means or elements as i read the supreme court's case law the way you figure it out is as such well could match and state practice but also the structure statute and how it sets how it sets the elements for you know or or that the the different the different items and again i think the nine hundred sixty nine statute easier i think the way it's listed as a matter of fact that we're building is actually set apart from the other sites by quite a number of phrases so it does appear that even looking at the statute that they were meant to be distinctive elements of the offense rather than simple means it's you know it's it's a non exhaustive list you had to prove one two three or four the jury instructions indicate you have to prove one two three or four and in the case law dealing with these cases the missouri argument that you have to address to your standard for the demand pursuit in order to prevail and again i'm going to defer judge loken but it would seem that shepherd which dealt with this particular statute is still good law so up again i i have a problem just jumping over shepherd kind of ignoring it and get into this kind of unusual conclusion  that you know maybe matt this dictated and and naylor but i do think we're we're we're stuck with shepherd and taylor and those are supreme court precedents that i think demand that this particular statute it in this particular case is generic burglary and i do think that and again there's no question legally or factually that he was convicted of generic burglary but i think at least in terms of naylor he remains convicted of generic burglary for the purposes that the position of the united states that the tailor controls this question because i don't understand that the united states to have made that argument nationally now maybe you're making that argument now in light of some of the questions that were asked but do you want your best response to the fact that taylor  controlling i'm a tailor is controlling tailor as judge looking pointed out and i apologize for for missing that but it dealt with this exact statute so i again that was the massive oversight on my part and no question for reconsideration based on mailer and i don't think any other time in this issue is than are within the purview of yeah but on the remainder that's a little different because that you know i've been up there a card to the supreme court and sometimes when you send stuff back you don't notice all the issues that weren't raised and so i don't think they were directing us not to look to see if there are some other procedural de fact in the in the petition turn up your honor i'd also cite to the fabian jackson case was handed by the down by this court a couple months going to i believe there's some language in there that says when you wave when the government waves the issue the f three issue that's the story but i would take a look at that that case the final issue is the emmy on instruction i didn't get to subsection three it a recurring issue very effectively argued them will be taken under advisement