may it please the court my name is richard pointed out i represent the defendant appellant ronald evans mr evans has been an incarcerated for approximately nine years and he has about six years left to go on a sentence that this court upholds the imposition of the armed career criminal act penalty as the district court imposed we challenge two of the predicate offenses on appeal in the first being north carolina common law burglary the second being federal bank robbery starting first with north carolina it is defined generic burglary as only applying to burglaries of buildings or structures and that would not include a mobile conveyance like a trailer home that is correct your honor and i believe that the supreme court has repeatedly i reaffirmed that holding that mobile conveyances simply do not as a category qualify as generic burglary now the supreme court is considering the generic definition of burglary this term and i believe you brought that to our attention yes your honor in two cases  purposes qualify as a building or structure under generic burglary both of the sit both the sixth and eighth circuit how that they do not that the supreme court has made clear that as a category mobile conveyances simply do not qualify of that but we do anticipate we certainly hope that that supreme court will reaffirm its previous holdings on that issue now what your your argument about north carolina law seems to boil down to the taylor decision am i right about that  no your honor i think state versus taylor is a key decision and that it clearly holds that a travel trailer can be burgled for purposes of that offense but that's not the only decision the north carolina supreme court and state versus douglas made clear that a mobile home could be the subject of the breaking and entering offense and breaking and entering is a lesser included offense of common law burglary so that reasoning equally applies to the burglary offense and as a whole i believe the north carolina courts  made clear that they look at their burglary offense in a functional manners so if a mobile conveyance is used as a habitation they will find it to be within the purview of burglary which i believe is with us supreme court has made clear that as a category those conveyances simply cannot be included turning to federal bank robbery this is an uphill argument given this court's previous decisions as well as decisions from other circuits and i certainly recognize that the point i would like to make though is that intimidation which this court has defined as the fear of bodily harm has been upheld it in the bank robbery context courts have upheld convictions based on intimidation where there's no outward manifestation or communication of a threat and in fact the definition of intimidation does not require threat and i believe that what was happening in those cases is that courts are looking at how whether the victim reasonably fears  injury but in all cases of any theft offense a victim may reasonably fear injury and at a certain level of generalization the question becomes less whether it's a threat of force and whether it's simply the risk of force and any theft offense can involve the risk of force but that is not what aca penalizes aca requires the force closet least requires that there be a threat of force as an element of the offense and looking at risk is what the residual clause did and partly  the reason or part of the reason that it was found to be unconstitutional is because it's impossible to judge just how much risk is required to bring it within that clause and i think that that's that's what's happening in the bank robbery context as well and one case i'd just like to point out united states versus later the tenth circuit case in that case the court upheld the bank robbery conviction via intimidation where the defendant walked into a bank walked behind a counter started taking  money and told someone to shut up when they asked what he was doing and in that case there really it's pretty if it's a far stretch to say that the defendant did something objective lead to manifest a communication a threat and i believe the court in that uttering a threat but still intimidate that i'm going to use force if i'm resisted and it's something the defendant has to do it's not just the victim's apprehension in my wrong about that construction of the statute and i believe the way this court has defined to mediation and by looking at the victim and what the victim reasonably fears and i referenced the ninth circuit case in united states versus par now in which the court considering massachusetts armed robbery made clear that a threat needs to be something done by the defendant some type of outward communication but we would have to depart from a number of other circuits to rule in your favor on this one right i'm looking at eleventh fourth six than eight i certainly don't  that your honor but this is a fifteen year penalty it's a long time in someone's life and i believe that if there's a reasonable construction that can avoid making this a predicate offense then it's it's one that should be taken monica richards i represent the united states of america on the subpoena with regard to the burglary conviction first north carolina state courts and the fourth circuit have made rulings with regard to the specific statute issue here and found that it does qualify as an offense under the numerator clause of aca and in that those cases it was in fact considering north carolina law directly in north carolina states considered the north carolina state law independently so as this court the state courts have construed their own state laws in such a manner this court is not necessarily hands drawn the hands tied together and bound by those must give those great deference and that's what we have here with regard to the state we have just north carolina court that applies the first degree burglary statute to a mobile trailer in taylor in in it in terms of state court decisions i didn't find a lot of case law to the contrary specifically in the context of whether a trailer would fit within first or second degree burglary you seem to be relying on principally these two federal case but the federal cases work in string state cases and i can see the point that was made i would we why would we rely on the fourth circuit when we have  appellate court to tell from the state the tells us what the state law is how is the fourth circuit of greater source of of authority than a carolina north carolina state court i don't mean to say that it is  i would say yes your honor sounds like you know for sure but on we have a case called the belo which says where the intermediate appellate courts are are the last word on this that as long as it seems consistent that we w tend to rely on that i mean there is i don't know if there's i haven't looked to see if there's a certification process with north carolina as to whether that would be a possible all for us but but in any event the question the judge livingston as be your opponent we should most likely wait for student sims don't you think because the supreme court may decide that a building is a mobile a mobile home when there's some very compelling discussion  discussion in the titians in the briefs that been filed with regard to that those that case already there combined for argument and discussing the manner in which burglary why burglary is an enumerated fence and discussing the fact that it's the inherent potential for harm to persons that the invasion the home is a violation of privacy it's a lost of the most personal valued possessions and it should apply equally to mobile homes as the standard colonial so with regard to that i'm the government would not i'm not going to object to this court holding off until that decisions made certainly would be if they decide that a mobile home can be a building it would make our our work a little bit shorter wouldn't it what we'll be waiting for a to twenty one thirteen a is a qualifying offense and has found that it is so as your honor suggested that with regard to that matter as i stated in the twenty two letter that i filed agree that that's established precedent for this court to consider and unless there's very good reason to undo those prior decisions those decisions should remain and decide this case any further questions than thank  you just very briefly on with the point regarding the fourth circuit cases the district court in this case relied on two in particular united states versus mac fourth circuit and united states versus harris which was a district court of north carolina and neither of those statute and we get ourselves right into we've had cases where we're hearing from people are citing trial court interpretations and and so many times the fact patterns are very specific  and actually there's a great opinion by judge sutton out of the sixth circuit on new york robbery where he's complaining that we're now really doing this particular arise view of the facts in understanding the generalized terms when we're not supposed to be doing that as to the crime that the defend that even more than that your honor i think you have a supreme court that tells you that i'm state versus douglas which well whether i agree with you on that or not is another matter but at least we have taylor and i may also be a supreme a north carolina supreme court case