unlawful entry into a remaining in the dwelling itself and again in mark a few years later and martinez garcia addressing the scope of the georgia burglary statute report again said dwelling is a house or other structure in which a person lives and then i'll bore knows of more news addressing the scope of the new york burglary statute the court held that indeed the new york statute is equipment to berkeley would whiling because while it extends past the areas used for living it's only to those attached areas and we're talking about the importance of the fact that the areas are attached to the living area the court discussed the model penal code the lafave treatise as well as its own precedence in all those cases the courts has made clear that dwelling for these purposes is living spaces whether formal structure or not as well as attach truckers court has never held that it applies to unattached structures not used for a living similar reasons but the court didn't evaluate whether or not that argument was correct or rejected the court's reasoning was soley that the argument was raised on plain error and ethics court held ten years earlier  was in fact a crime of violence and so therefore the court never reached just arguments raised by the defendants in that case it just held any error was not playing and affirmed the decision of the district court moreover as noted garcia says intent to commit a felony is an element of berg generic definition of burglary and here  and that's why i hadn't raised that mr or gallagher subsequent to you follow your filing your brief in february of this year the supreme court came down with the mathis opinion and just various essentially tell us and so therefore had committed a crime of violence and or to a one point two zero zero has been repudiated by the supreme court in mathis it was identified in mathis's on the falling on the wrong side of the circuits but resolved in that case something is an element or means and so that now we need to figure out whether the word habitation whether going down past that word habitation in tennessee under tennessee law is an element so whether someone entered a house as opposed to us out house is an element and under tennessee law it's clear that it is an element for i'm sorry you can't go down past habitation anything has that's not only and that's because one as i said the tennessee jury instructions make that clear they require the jury to find that that all the state needs to do to prove aggravated burglary is that someone entered habitation with the intent to commit a felony theft or assault so again there's no suggestion in the jury instructions the indictment or the tennessee case all or that of you file several twenty eight days letters with us this on his own label the twenty fourth twenty sixteen citing us to united states versus martinez romero as a fork or you're claiming that this was not harmless error because the district judge didn't engage in certain steps but reading the transcript of the sentencing hearing the district judge for example says i'm very concerned about your criminal history it's an ongoing criminal history for quite some time the p s r had urged the judge to consider an upward departure the judge later says and he goes over some of his history and then he says i'm going to send it to at the low end of a term of forty six months i've considered all the thirty five fifty three factors but if i'm wrong i'm going to impose the same sentence noting that it's reflected in the transcript itself the offense was one that involved burglary  built welling so the court would impose the same sentence even if it is an era in the enhancement here so why would this be harmless arrow what what little miniscule step do you think the district judge missed that would keep this from being harmless era where he considered all the thirty five fifty three a factors he was urged to consider and over departure and he said if i'm wrong this is the correct sentence for you because of your criminal history as martinez i want to think this case is centrally on all fours twenty four months which is why so what are you supposed to say on the record if i'm wrong your senate would be eighteen to twenty four months he's required to do i think whether or not it's required i think i think there is and i'll say this in other cases this court has looked to the record to see whether there's evidence of such consideration such as in the p s r denim or perhaps in the objections and that is absent here there is simply and there has to be so however it comes whether it's in the oral statement or perhaps in writing i'm not suggesting that it has to take a particular government's burden to show that the sentence was not influenced in any way by the erroneous guidelines calculation that's the court's words martina's romero and there the court help of this court held that the court's decision  reference to imposing a sentence at the lower end of the guidelines was a strong indication that the iranians guidelines range that affected the sentence imposed by the district court and again that's what the district court did here in selecting that forty six month sentence the district court and the judge wasn't influenced by the erroneous guidelines there by the erroneous guidelines range in the same is true here that by imposing that sense that court was influenced by the erroneous range in the or was it harmless and in our genes or marrow the court accepted this court accepted that the district court on remand might well choose to impose a sentence above the guidelines the district court might do so here but more needs to be shown is that the sentence the ultimate sentence would be the same and that that roney estranged in effect the selection that sentence and it did in this case your on the court statements as well as the lack of consideration the right tilings range show that another as finally in relation the possibility of an up in the margin is romeril was there a recommendation in the p s r to impose an up or departure i don't recall your honor in my opinion someone who is involving a kidnapping had prior often says involving against people whether it was his lengthy lengthy mr castro phones or does have a lengthy criminal history but it's mostly there's one other felony the burglar vehicle everything else is misdemeanors honor and so and i think the even the possibility of an up or departure mr castro fonzo a sentence in criminal history category three even if the district court applying the proper office level went all the way up to criminal history category six that range would not reach forty six months the high end of that range would be forty one months i believe your honor so even with a three criminal history category up or departure it would not reach the sentence imposed by the district court so that even that the consideration of a possible even upward departure is not enough to make it harmless and your honour's with regard to him i know that is a question of procedure we've had all of these twenty eight day letters filed by the defendant i think three of them and i don't believe the government responded to any of them is that just your normal procedure in your office that you don't respond to twenty a j letters your honor we do respond i'm sorry with regards to map s i can respond right now no i'm just curious as to your procedure usually we do respond your hon had this steady drumbeat of twenty eight day letters and they were all relevant they recently decided cases so it was proper i was just so proud the government hadn't done more in response if i could start with th state court decisions that would show that it is divisible post math as you know it is a single umbrella term when you're talking about the type of structure and so with regards to whether math as applies or whether the structure or habitation is divisible the government would concede that now under map as the definition of structure as it applies to this specific statute is not divisible but it does not concede whether the type of the form of burglary whether it's did address the specific argument that's being raised here today and that is whether a structure that is a pertinent to or connected with the habitation or the developing is broader than the generic meaning of dwelling and so in that regard t and you know the briefs underlying garcia and as the arguments that were raised were identical and the court did address them in and the decision is necessarily found in that case that and it did state explicitly stated that the texas and garcia mendez has been reaffirmed and approved in later cases and gomes to this circuit cited garcia mendez and with approval saying that it distinguished the te as president and it did necessarily hold and find the exact issue that we're talking about today with regards to that specific statutory language and that's the issue here that's what's been raised whether the involved with the house   the government's position your honor and that is what garcia and dest necessarily had to hold when it when it found that it categorically is a bullet to the generic dwelling when they address this the same specific argument that the defense argue that something that's not been acted like a garage is not is broader than the duality and the government's position is is that it is not it is it is something closely associated with the use and dwelling and habitation of the of the dwelling and historically has been in texas cases it has been apply only in cases that have been either connected with a breezeway roof or something even if it was unattached was just next to her and next to the house and so in  tennessee it is only been applied to all connected portions or portions i have the house so it's if you look at the tennessee cases and you know how they have applied the tennessee statute it's always been applied in the generic way it's been applied in a way where it's either attached or a part of the house which is a generic definition which was found in garcia mendez to categorically be the substantial equivalent of the generic definition of well and that's been the government's primary position we argued mathes alternatively the format i'm not mad as i'm sorry we argued the divot the modify category approach apply before map this was decided as an alternative argument but our primary position has always been that darcy mendez is controlling and that this particular statu does is not over brot that it meets the generic definition of dwelling we did not reach these other arguments that were discussed today because it just wasn't raised as an issue in this case we specifically address the issue which is whether habit is broader that to in the tennessee statute the definition of habitation is broader than the generic definition and then we also address modify categorical approach with a very narrow issue of whether the definition of habitation is divisible and no other way because if the public defender or the defense in their brief did state that and knowledge that he was convicted the defend it was convicted under the first subsection of the burglary which is to unlawful enter and habitation with the intent to commit a s of a variance or purpose of a departure you can look at the facts underlying the prior conduct and she sang you you warrant the same sort of enhanced meant the same sorts innocent someone who actually with legally qualify under the statute of their state because you committed a murder of a dwelling so she is indicating that she would impose the same sentence pointing out specifically that she had read the state calls way so this is compelling proof that the court live impose a sentence outside the properly calculated sentencing guideline for the same reasons that she provided at sentencing in other words this is what she intended and wanted him to receive and under to our own point to comment no seven it recognizes for purposes of a departure that the port in looking at it whether the defendant has qualified for a crime of violence and handsome and if he should not technically qualify or legally qualify for a sixteen level enhancement and the next level down is the eight level enhanced mind that the court can look at the anis information and that the government's position is that what takes this out of that analysis is is that the court is looking at a specific behavior saying this actually is a virtually of a dwelling and for purposes of a variance the court can look at that information to determine you know what because he committed exactly what a crime of violence with would provide i'm going to find that he should receive the same sentence that someone that did commit a crime of violence would recede so i think i would impose the same sentence anyway and that's what she said twice step by step ok let's see i think fifteen to twenty is too low ok twenty to twenty four that's still too low ok twenty five thirty that's still we said you don't have to go in here and here the judge says i certainly sympathize mr castro with the family situation that's going on now but the court believes that under all circumstances here so who's to say the court wasn't trying to give the man  break sentence in just a forty six months which was a low end of this assuming argument no this was even an iranian guideline but still says this is the senate's i would impose if if the if the not required to have a ritualistic recitation of certain facts in every case that every case should be viewed by the specific facts and circumstances that are in the record and in this record you do you do see that as the district court put a lot of thought into this the senate she did look at his extensive criminal history the fact that he had returned and been deported returned again without being prosecuted the first time the fact that he had a continuing criminal history that ended up in this birth of a drawing which the court was very concerned about the burglary with wowing and she the district court had stated that she was concerned about the protecting the public that he was a danger to the community that it indicated that he needed to turn ons and so she went and she stated twice that she had reviewed and considered all of the thirty five fifty three factors and assessing the sentence it was a very careful and considered decision and this is not a case where you have all these different guideline calculations i mean  difference between a sixteen level and eight level so it's not like she would have to go through all of these mental possibilities of what the sentence would be and he was clear as to what the sentence would have been had the enhanced sixteen level enhancement had not been applied it would then have fallen a house you still property and you committed the traditional burglar dwelling and i find that you deserve the same sentence that a person who committed a legal definition of berman of a drawing would get and i would impose to make assumptions on any particular facts because even each case has to be viewed by its own specific facts and circumstances and and in this case i would say that that there's a strong case for harmless error because of the of the facts that i've just address but again not conceding that we don't prevail on the merits on our primary argument which is that the tennessee statute with identical language the texas statute is a generic burglary of a duality this court has found that it is the categor to start with your question just charlie i believe if i think i'm answering your question i believe i have to concede on this record that mr castro was convicted under section eighty one of that four  two which would be enters a building with intent to commit a felony theft or assault in one of the other versions and that's because the entitlement tracks that language and even post mathis that a jury instructions are trying because you're not supposed to look at the i think under mathis we can to determine whether or not something is an element for means we can look at the indictment in jury instructions and i think those in this case i think those documents suggest that whether someone was convicted under a one of four o two or indeed elements i don't think down further on that which is why you can't go down past the word habitation but i do think the jury instructions that i have in my brief on page sixteen do show that to have convicted him the jury would have had to have found that he entered a building in this case i have a patient with intent to commit a particular one of these often says to me ask you about garcia  still even if the court it's because it's so hard to tell and garcia mendez with the bases was i think as i said the basis for the court's decision was we held this was we held this particular texas officers acquiring violence twelve years ago therefore on plane air you lose i think honestly that's the court's reasoning and garcia mendez we had argued i've asked you to put a sock i know i'm sorry but what i'm trying is i've got that or is that it's hard to understand the basis for the court's reasoning it's hard to understand it's hard to tell it would be hard to look at garcia mendez and while i said the court recited the defendant's argument that tennis that texas burglary was overbroad for similar reasons to what we're arguing here the court in a value way whether or not we were correct from looking at garcia mendez for all i know that the panel thought we were wrong the defense was wrong about the scope of texas burglary that's completely consistent with that with that plagues and moreover it would be to reach that decision garcia mendez would mean that the statements and of subsequent published decisions like gomez gare martinez garcia are wrong which talk about entry into the building itself into the dwelling itself and not into other other areas that might be protected by particular state statutes so to put that much weight in the garcia mendoza require this court to repudiate language from both subsequent published decisions and go in as karen martinez garcia and of course you know  e i fully recognize a later panel can't overrule the first panel's decision and darcy amend as was the first panel of these cases i'm talking about but that's why again it makes the most sense to read that as a plain error case  well the only other thing i was going to say so anyway my point on that is again i just simply don't think r c m and his can bear the weight the government's putting on it neither its reasoning nords essential holding support that and then finally i'll just end again with this case the facts are not different from martinez or merrill they're the judge said three times i would impose the same sentence even if i'm wrong in your objection that defendant had an awful criminal record he had the kidnapping involved a minor there was aggravated stalking there was other battery departure i didn't say that your honor what i said was as i didn't see that in i didn't see the fact that fact one way or the other and decision so i simply do not know i don't concede that but it is clear the court and finally the court the recognize the judge could impose an upper departure there was all sorts of reasons for it and if the court did considering the right guidelines range in the right factors it would likely be affirmed but here when the judge kept saying is considering the three three three five five three a factors it had one of them