critical question then becomes whether the supreme court's decision in math us and this court's decision in any apply retroactively on collateral review or what do you think the answer that question is just we rests on memphis the question i'm asking is whether memphis and pain are retroactive on collateral review well i suppose my answer would be that's undecided oh it's not decided so far but in order to rule in your favor we have to decide it in your favor that's why i'm asking this question i i understand your honor and i will certainly not take the position that it can't be  o i don't know where that leaves us i would argue though that there are grounds to believe that it is in fact a claim i'm grounded in johnson and look hany is what it is it does not rely on  would it johnson deals with the constitutionality of the residual clause haney and matter most like taylor before them deal with the meaning of the word burglary which is not part of the residual clause and there's nothing about johnson that affects the meaning of the word burglary one way or the other this case why caney turns on the meaning of the word burglary i think we just have to take that and proceed and your honor i would i would disagree with the proposition that johnson doesn't affect our glory because one of the things that johnson did was overrule prior united states supreme court precedent on the question of what what constitutes burglary no it  did it does so explicitly your honor the johnson deals with the question of what attempted burglary might be but not one burglary taylor has not been overruled tailoress the definition and it's you know certainly not the case that that it was interpreted in johnson i don't think arguing with the court is going to help you i wish you'd address the question i posed well your honor i would say this that this court has written i recently in the stanley decision that though it denied relief in that case it points out that mr stanley had not brought the kind of claim that mr holt brings in this case and that it recognized the stanley decision recognized that that may be because it would have been futile previously because this circuits president and the supreme court president made it very clear that there was no point arguing over which part of the violent definition there was it's not violence this crime is burglary it is specifically mentioned ever since taylor decided that burglary meant generic burglary that was for the purpose of sixteen in everybody's applied it to the arm career criminal this has been an open issue about what that means and how we have done to find generic burglary not a brand new issue it wasn't created by johnson it's been with perhaps it is a slightly different question and i than i anticipated today i would suggest that that the masses mathes opinion in and of itself deals with a fairly narrow issue coming on the heels of they came out the supreme court in math a says to the circuit courts we wish you would do what we said that's how they opinion starts and then ultimately determines that when we say categorical approach we mean categorical approach and that changed quite a bit of case law from this circuit and from many others yes i you're just not addressing my question i know exactly what methods  interpretating an illinois statu is a clear is a matter of fact that mr holt's burglaries were of structures or buildings i believe ultimately the government provided a pleading document or either charging document or a judgment that indicated that it was but that it can't of course can't be looked at well i understand that it may not control if we were on direct appeal under mathis but i'm just wondering if you'd might make a difference it's not as if this is a completely on just result honor i would say absolutely it is because this burglary could not possibly qualify under the current state of the law that is he would be eligible for relief but for retroactivity questions that burglary as the law is as of the last dance now he was convicted under a statute that does not define a jared generic burglary i don't think the government's even disputing that and  and because the actual facts committed fits well within the definition of generic burglary records but i i'll i'm prepared to say is that he was convicted of as i recall earlier in the structure but again unless the modified categorical is approach is used that can't be examined the question is whether the statute under which he was convicted has the elements of generic burglary and there is no dispute that it did not that's the holding  pain i'm afraid that i haven't answered the court's question but i don't i understand your point i'm i'm just trying to explore why we might or might not apply to me and now this retroactively of of a question that i hope you all means that the conduct for example is no longer criminal and in this case it sure looks like it was criminal and in the actual conduct would have been sufficient  and yet in both of those cases those nominally burglary offenses nama burglary senses could not be used for the purpose of act and that would be our position in this case as well if if the court is going to if the court desires to have supplemental submissions on that point then perhaps part would prefer that i reserve my are you know i'm actually i think from the way the argument is go so far and also from that the question that judge hamilton is asked about the extent to which the modified categorical approach is itself part of the definition of innocence for purposes of retroactive application article that a review that we would benefit from supplemental memos and the government would be delighted to provide it up and i think that means we've we've really got two separate questions one is whether the modified categorical approach is part of the definition of innocents for purposes of retroactive application and the other is whether matheson any you know independent of that question or retroactive on the grounds that they deal with actual innocence that not having committed the crime and one it seems to me one might address not simply factual innocence is a little difficult because this is  sentencing and hits right but in montgomery against louisiana last term the supreme court applied miller against alabama retroactively even though it concerned only sentencing and said some things in montgomery about when changes in the rules for sentencing apply retroactively collateral review it seems to me we need to be thinking about that and so far  to the extent of the actual innocence question has been raised but we have asserted we did asserted in our briefs that this is a question of actual innocence as to whether he is an armed career criminal that it would be our position was our position we would continue to be our position we can certainly address this further and we intend to come with given the instruction of the court if there are any other questions i'm happy to address and that's that's it for the moment we will look look forward to