thank you mr chief judge in may it please the court my client mr harold was convicted of two offenses that texas calls berkeley but neither one of those offenses satisfies the armed career criminal acts federal generic definition of burglary therefore these prior offenses were not violent felonies and mr harold is not an armed career criminal on the first issue we focus on the texas definition of habitation that's found in texas penal code section thirty point zero one paragraph one specifically we ask a three describes a generic burglary and procedural question whether these two subsections a one and a three represent a single burglary offense or two different burglary offenses starting with the first issue texas definition of the supreme court stated in shepherd versus united states that the act makes burglary a violent felony only if it's committed in a building or enclosed space not in a boat or a motor vehicle mathis called this the locational element of generic burglary but in texas a defendant can be convicted of burglary of a habitation for breaking into any vehicle that has been adapted for the overnight accommodation of persons as we showed in the district court texas does not insist that these adapted vehicles actually be used as homes or even for camping the prosecution isn't even required to prove that someone had ever slept in the vehicle we provided the case to the district court in which the defendant was convicted of multiple counts of burglary a habitation for vandalizing unused vehicles parked not at a campground but at a storage facility now the government asked this court to expand the supreme court's locational element of generic burglary to include visa debit vehicles i can think of five main reasons why this court should reject the government's invitation to expand the definition first the supreme court has said repeatedly and without exception that burglary of an automobile or motor vehicle is non generic and math this provides a quote good rule of thumb for interpret in these decisions what they say and what they mean are one and the same second third fourth sixth eight ninth and eleventh circuits have all recognize that burglary of an adaptive vehicle is still burglary of a vehicle and therefore is not generic burglary and a panel of this court recently agreed regarding ohio's burglary of an adapted vehicle crime new judge in boston has written that the overarching objective of the categorical approach is to achieve equality in federal sentencing if this court were to hold a generic burglary includes crimes committed against adapted vehicles then it would be in direct conflict with all of these other circuits and that would lead to widely divergent sentences based soley on the accident of geography of the prosecution the third reason mr herald interpretation preserves continuity of meaning between the one nine hundred eighty four statutory definition of burglary and the one nine hundred eighty six provision that inadvertently deleted that definition we know that congress has one thousand nine hundred definition was limited to buildings and buildings alone and we also know from tehran that congress did not intend to substantially revise its definition when it accidentally deleted it yet that is precisely what the government advocates on pages one thousand and twenty of it's on both brief the fourth reason is that mr harold's reading is consistent with the principle of fair notice and limited and since we are interpret a statute with very dramatic consequences for defendants it seems only fair to insist that congress speak with absolute clarity when changing the definition of an essential term like burglary and fifth the supreme court's generic definition provides clarity and predictability let me explain what i mean under shepherd and taylor generic burglary extends to every building unlike the common law we no longer have to look at how that building has been used or what its purpose is to decide whether it's a dwelling house and generic burglary likewise excludes crimes committed against vehicles we don't have to look at the vehicles use or purpose to decide whether it's a dwelling car or mobile habitation or automobile building it's a vehicle and so it's excluded now the government's proposed expansion of the definition would eliminate that clarity and make no mistake once you tinker with the location element to allow in some vehicles it will be very difficult to decide where to draw the line which vehicles are going to be included in the new definition you can't find that line just by surveying the various state courts burglary statute because they're all over the place many states at least twenty by my count in the government's appendix include all vehicles or all vehicles that are used for transportation and we know in the government agrees that generic burglary does not include burglaries of a vehicle of all vehicles other states defined very very to include just some vehicles like those used for storage or education or business or sleeping and some states like texas don't even require they be used for the special purpose but that they just be merely adapted for it every state has the power to define its own crimes including the crimes he chooses to call burglary but federal law controls which of those crimes counts as a violen felony tailoring shepard's federal definition eliminates the uncertainty about the location element by saying all buildings regardless of their users regardless of their purpose are venue's for a generic burglary and likewise it eliminates uncertainty about motor vehicles by stating unequivocal you burglary of a motor vehicle is not a violent felony and i'd like to pivot away from the first issue and discuss our second issue which concerns thirty point zero two three again it has both a substantive question is this a generic burglary and a procedural question is it a separate burglary crime then the three in a one under taylor's formulation of generic burglary and the one hundred eighty four statute here burglary requires a plan that is an intention to commit another crime at the time of the trespass when the offender either enters a building or hides himself in a building but texas has expanded its crime of generic burglary to include a new theory of liability found in subsection a three under this theory the prosecution is not required to prove an unlawful intention at the time of the trespass the mental state substitutes for proof of some other crime and in that since this theory is like felony murder you prove another crime and you don't have to prove the mental state this new burglary theory was unique to texas at the time and the arm for a criminal act was passed and it remains a very small minority view today and this court has long held that the new and unique theory is not generic burglary and while i acknowledge doubts have been raised about this point by at least one member of this court i encourage the full court to reaffirm the holdings of united states versus constantia and united states versus herrera montas the most obvious reason to continue with that holding is the that is not present in a theory it is present in generic burglary a trespass without is not generic burglary and the eighth circuit very recently agreed in united states versus macarthur the next question is the procedural one are the two theories a one in a three divisible into two separate offenses this is a question of texas law but before we dive into state law we need to know what we're going to be looking for mathis says citing chad versus arizona that we are looking for juror unanimity and that is an important thing to know because there are other concepts like the lesser included offenses or adequacy of an indictment which we a special practitioners might associate with the elements versus means distinction but texas courts do not and as early as calderon pea the on court recognize the texas treats its notice rules separately from what are the true elements in the narrow sense implied by set math this provides a three step roadmap for resolving this kind of dispute first we ask whether a state court decision definitively answers the jury unanimity question if not the second step we examine the structure of the statute for things like different punishment ranges and if we don't have an answer we move to the third step which i call the kaczynski peek where we look at the record documents not to see what the government proved or didn't prove below but to see whether they said any light on this question of means versus elements and finally it's still not quite clear after performing all the steps we have a default principle that is the taylor and the categor approach demand certainty and if we can't say with certainty if these are actual elements instead of means then the enhancement does not apply the government does not carry this burden as we showed in our brief we went under every step of the ma analysis now the government has argued that the two burglaries described in a one in a three are a quote far cry from the supreme court's examples of individual statutes but we know that is wrong because texas is burglary statute is remarkably similar to arizona's first degree murder statute remember in shadow says arizona there were two ways to commit that offense one subsection required proof of a couple mental state premeditation and the other replace that mens rea element proof of the elements of an additional crime and even though those two theories sound very different they kind of sound like different crimes the arizona state courts had ruled that they were not elements in the narrow discussed in mathison in chat itself in other words the jury did not have to agree unanimously on which of those two theories was proved what i take from that is we can't tell whether a statute is divisible just by looking at it we can't trust our instinct to say it and we can't even trust the use of a word like elements if we're not talking about jury unanimity so we asked this court to reverse at this time i would welcome any questions from the court on either of these issues is not down by silver but silver talked about buildings that was the issue that was considered there is not a case applying the arms criminal act from the fifth circuit against this argument other than harold one well you could've made this argument twenty five years ago twenty years ago fifteen years ago ten years ago five years ago i suspect someone could have made that argument as shows but they didn't and my client has no way motion for a panel rehearing in another sentencing case woods takes the position that the minnesota murder statute is not generic murder and so you know at some point you say you're asking for certainty it seems to me what you're really asking for is interminable potential for can you know litigating every state statute at every minute level of  why you distinguishing between the trailer park burglary and the burglary of a home in a nicer is didn't air marma we're distinguishing is between the vandalization of some unused motor vehicles at a storage facility and burg  school bus that had all of its wheels on and its engine out removed from it and a very poor family was living in that is and and someone comes in and takes everything they've got that's not burglary and you are i guess i should say that i am not suggesting that crime should be punished or that it's not is or that it  isn't deserving of more punishment then burglary of a regular vehicle parked at the mall what i am suggesting is that it is not burglary ok so you are saying we should take the supreme court literally to the point of being foolish ideas that i mean but still those people are not protected the same as someone who lives in a match and i want to push back against that notion respectfully so jolly we're not taking any protection away from them this is not about how mr harold should be  protection you're taking protection away from people who deserve protection against recidivist criminals or aliens who have committed serious crimes because this applies to the enhancement penalties that congress or immigration one of these congress has written just again i'm going to speculate disagree because we're not talking about whether or not someone can go to prison for doing that there's no question texas is the cam we're talking about what happens when twenty years later they're caught in possession of a firearm at a traffic stop so in other words we're not saying it's ok to rob something if it has or to burglarize something if it has wheels on an engine we're saying the supreme court has told everyone this is what burglary me let me ask you about you keep talking about this and of all case icing is what you're referencing with the so called that's right or wrong or whatever they were i may have missed it but i didn't see where anybody challenged whether that was a habitation whether that was appropriately brought under that section it looked like they played and got diverted you cation there's no appellate court that's ever passed on that is that really an exemplar of is that the best you could do is an example our of a look at how texas really is using this statute way different than the supreme court wants and objections i don't think is the best i can do the best i can do is to point to the statute itself which is if the vehicles adapted for overnight accommodations as everyone would agree court did mention the model penal code is another example to reject the defendant's pacific argument but if taylor was the end of the story i agree this would be a closer question i think this is why the divergence the government can show is all in that period between taylor and sheppard sheppard applies the taylor principle in a way that is very clear and now in this very complex area of law which is difficult in a lot of ways the categorical approach if we know anything you're wrong if i could take one to the bank about the categorical approach i can take burglary of a vehicle nonviolent not generic burglary that's the one thing we know is what right is moving if i could move you from that the narrow question the burglary at the outset to your third issue which concerns me a little more because it's really more taking texas law and trying to map it on to mathis if we were to say that doing the three steps we still think texas law is little bit indeterminate would you say that certification is not an option that the certainty principle you describe means courts like ours cannot certified texas that's the first question and then a related question is does this is just my ignorance just texas law have any authority to pattern instructions is the barry goldwater  certification the court could do that if the question was just sort of philosophically what does texas law require the problem with that in this case we do not know and we will be applying i duke with an even if the fear now is i have to throw my hands texas law is very confusing it's hard to hard to work its way through but the judges who do this for a living all they do is apply texas law and to work out these problems of cisco about it the way it wants to and texas can and all of the courts of look at the jury unanimity question and just right and a map is the case the court said one has to wonder whether this was disingenuous that it will be easy to determine the elements means and that the opinions of the highest court relevant court are most just are most telling and it seems to me you have a series of  texas you got at least have the courtesy to pronounce spanish proper but the point isn't the fact that it's most recent doesn't mean it's the bearing on the issue most properly and divonne and day said their supper crime two in the case of one of them another offense trespassing and in the case of the other when in relation to the notice requirements which the ongoing court held more than ten years ago it not the same thing as elements for the purpose of texas law but when the question of jury even an immediate has been out crossed out of the statute because it's understood of the forty four of the jurisdictions of the time an act is in one hundred forty four jurisdictions included nonpermanent structures within their felony burglary statute nineteen of those include non permitted structures generally twenty five of those included some nonpermanent structures that are adapted for some specific purpose and of those forty four  something similar to that of focusing on the vehicle id of with or without an engine with or without wheels as was mentioned but just the idea of a vehicle how many states we talk about lead us going to be the twenty five that recognize some sort of  nonpermanent structure a vehicle that is used for a specific purpose which would in number out even if it was twenty five states who burglarizes an actual house the mansion we've been talking about is going to not get any c c a but somebody wouldn't because they wouldn't be included either because those states including mobile conveniences regardless of whether they're used for a house or for storage or for a vehicle just obvious all in one block because texas separates vehicles in a different never drawn this distinction between things movable and things improvable as being the line between generic and ongoing burglary and there are two points and tailor made this is where the court tells us this first page five hundred eighty eight the court wright agrees with me and this morning my count was also about twenty states that would include vehicles generally but that's not most states most date like texas does now we punish that as a misdemeanor and what we know from page five hundred eighty eight is that that is where the line is wrong between what most state would punish as felony and what they would punish or something less because after all we're discerning here what is the meaning of a violent felony so it makes sense for the court most states are going to punish this as a misdemeanor offense something less than a year in jail then it can't be a violent felony that is where the line of wrong this is also corroborated at page five ninety nine when the court says that some state stat and we know from looking at the statutes almost every state includes some sort of thing that could be generally automobile we have to draw one of two conclusions from the supreme court statement either i think  believe this group or simply wrong it didn't understand the state of burglary law cross the nation when it said few states would be overbroad that's one reading which i don't think is a reasonable reading the better reading that is consistent with the sedan sitting in a parking lot not the winnebago that someone is suitable to be someone's home so not only do the majority of state statutes prove that the government is right here on this issue we also whatever members of congress included when they meant burglary taylor tells us they certainly intended to include the classic notion of burglary a crime that has always since home all focused on to balance and as i said in the very first defendant's argument that vehicle is used by the supreme court means vehicle any kind of vehicle and whether it is movable or not but if how do you get around an express plain meaning of the word vehicle as used by the supreme court if i point to the very same two parts of taylor in particular most forcefully if i have a da if if the court said congress inten couldn't have meant anything movable anything that can be generally described as a vehicle or else it would have said almost all state statutes are overbroad in this way because we know at least forty four inches different times and actually a mobile homes pretty hard to move mobile homes pretty hard to for overnight lodging so knowing yes it would be completely inconceivable to think that congress in adopting an updated modern meaning of burglary would embrace an outdated equated notion of what is and why only or a place that can be subject to what do you do with the sand of our case that is a record three eleven or whatever that was this so called motorhomes what's your response to that  one pushed back a little bit on this characterization of these almost all these work oh there's nothing to suggest that the victims of these offenses didn't simply park their motor homes there two or three days earlier these were own  so it would seem like that's that would be burglary whereas under their argument the mobile home wouldn't be and why are these even different and shouldn't be different under texas law their homes the things that didn't consider to be felony burglary in there is no dispute there can't be any dispute that most states would include mobile habitation within felony burglary and it was all it's easier nothing counts just as burglary only a position no that's not my position my position is that martinez is wrong it is squarely at odds with devolved into they and de excuse me it misapplied those rulings and there is no way to square martinez's holding in the handful of other unpublished opinions from intermediate mean that's kind of the last refuge of a losing cause is that there's a that there's an opinion that's that squarely on point you just tell us it's wrongly decided i guess that was for the texas court system to to figure out but there but there is no texas state opinion that goes with your position on specifically on your unanimity question i believe built into the court criminal appeals cases is more than just an isolated reference of elements it they're much more than that these cases had to address and determine what were the constituent parts of texas burglary in order to reach the whole while of course is this is this is about this is about methodology of how we figure out what texas law is would you agree that we look to the extent that they are on point to intermediate court of appeals decision to tell us what i previous in this case twenty years earlier court of criminal appeals decision said and man specifically when it's when he's referred to in this case ten times it will get him and for us to look to martina's as as a ty i'm sorry i missed the first it is it legitimate for us to look to martina's as authority since if it comes through the then twenty year old opinion in in deval it is legitimate for you to consider it this court has considered intermediate appellate courts from texas before in prior opinions it's wrong it's in conflict with a higher the highest criminal court in texas and for that reason we ask that you not follow martin as because you simply cannot square it with you with the case after case after case from the court of criminal appeals let me give you a few examples let's let's let's switch a minute to the federal arena again i'm i'm i'm trying to to focus on the methodology that we used to figure out what the directly at mathis it was looking at what the intermediate court of appeals in this case your rebuttal had said about matters it wasn't questioning whether your rebate was properly decided had no right to do that in fact the herald panel under a i disagree with you're not bound you're not bound martina's you're mathis instructs us first to look to see if there's an authoritative state court decision that answers the elements vs means question dive into state law and see has the highest criminal court certifications occur i'm not sure of that i believe that's correct and i can't say with one hundred would it be significant then the supreme court didn't make any comment on that or were you are you could you address the certification question absolutely and if you could also my simple question is there an authoritative pattern set of pattern instructions in texas were going certification this court i believe has does have the authority and discretion to certify it to to the texas court of criminal appeals if it so chose it need not do that here because we have texas case law in the face of the statute and examples from athens that demonstrate that a one a two and a three set out distinct differences with distinct elements we also have an alternative argument  even regarding regardless of divisibility a one and a three are both qualify as categorically as generic for that reason you can simply avoid the divisibility question should you choose we don't have any examples of other circuits using certification as a tool no you don't and i don't believe i don't believe you need to test to certify i don't believe you should i think mathis gives us if you don't respond to his argument that we actually can't because the certainty principle means that harold wouldn't have known if we don't know certainty we haven't the requisite certainty here mathis gives us again a roadmap to two i know that's your position but i'm asking you to assume that there is uncertainty there for the first argument is martin is controls and that may be the answer but assuming you're right that martin is somehow doesn't i think there weren't certainty can we because harold wouldn't have had that certainty himself i think would be a difference of why the court was certified to certify because this is absolutely uncertain then his argument would have some force if it were sort of fine because we think we know what it means but we have this option to ask taxes why don't we just go ahead and do it then i don't think it's a question that's just a pattern instructions could you address or do you know whether there is an texas law on the one hand they say that for a one and for a one burglary for instance and a three bradley for instance if those are charged it lists the five sets of elements for one four sets of elements for another calls and element this certification business where it couldn't possibly benefit mr harold because of course it would lay out the law for every future defendant would it not it would it would and my argument is really two to the holding of those opinions those were those were prerequisites to the holdings in day the court had to decide whether criminal trespass in texas was a lesser included offense of burglary the only way to resolve that issue is determine well what are the elements of problem and what berger is a same elements test so the only way to resolve whether there was a double jeopardy problem was to determine are the elements of a wanted a three different and are they the same as the lesser included in  to your back half a step here in day the court wasn't comparing the various components of thirty point zero two which is which is what our job is to one another but instead was comparing it to an entirely different crime that was a completely different process and question that day and yvonne did not address but martinez did the only way to decide whether criminal trespass is a lesser included of burglary is to compare the elements of burglary to the elements of criminal trespass and we think that is just at loggerheads and at odds with martinez but even if martin is working trolling it's and this court needed to give it some significant weight it is clearly wrong  it does address them on and it says ok unanimity in texas is what we focus on the actus reus and a one and a three there are basically the same crime there's only one small difference and just the face of the statute shows that is not so there are multiple many distinctions as reflected i mean i can't ever remember a case in our court where we were interpret ing state law which we do course often in diversity case but here we agree that state law provides the rule of decision i can't ever remember where we say we we discounted the authoritative nature of a state court decision by saying that it's wrongly decided maybe in dicta maybe somebody drops a foot but we still consider it controlling because it is the rule of decision it just normal eery way the normal eared way says highest we're bound and that's authoritative for an intermediate it's persuasive authority and that's just every day run of the male erie is that right yes that's right but even  only i mean address a few more things even if the texas case law were somehow unclear which we don't believe it is i cannot square these multiple supreme court case in court to promote those cases with martinez but even if it were matheson as you know what sometimes that's going to happen the next and that's ok by the way that this is don't stop there you don't lack certainty even if the courts in the state are either confusing or just has a have not addressed it you go to the face of the statute and the face of the statute you rebate correctly held that the structure in the face of the statute in the create these are distinct elements not means and it did so for two reasons first the statute lays out in three different distinct subsections three distinct types of conduct in tree with intent is not the same thing as remaining concealed with the intent nor is it the same as entering and then actually committing the crime as i run it you talk about that your argument on that is that is also generic burglary because by committing the crime i'm remaining in with the inappropriate intent and therefore fall under the taylor definition of generic martine yes you're on it martinez will go away and we do believe that is correct that that is a three burglary is just as much to eric burglary as a one and the reason is taylor was concerned with three constituent parts  ask you this if john doe enters a building normally a let's say a kroger and then while sitting there forms the intent to commit a crime but never does does that violate any of these three standing in the this i don't believe it does on the trial and is that an important distinction that the first two are the intent is punishing the intent the third is it is punishing the conduct and you don't have to do it or attempt to do it yes you can't just be thinking about it's right and when someone does it they have necessarily remained in that place with the intent to commit a crime because if you actually commit it of course you have the intent it's a very it's a very straightforward and logical analysis that multiple other circuits ha court to embrace them logic we support that position it lays out in great detail why that reading a three qualifies as generic reading is embraced by taylor it's imposed by the rush i could start with mr hendricks that last point but we of course didn't follow reply before the on bond court in this case and we suggested in our brief that if the government did take that position in other words follow judge owens concurrence in that case been elevated we'd like a chance to brief it supplemental ie whether you give us that or not i do want to say that contemporaneous intent is the main most obvious reason the eighth circuit held that this court has held it for many years but if you if we think there are other reasons it's non generic and i just want to sketch those out briefly your main shot the second way that it's different that a three burglary is different from remaining in is that if an owner acquiesces in the unlawful presence for instance the young lady kicks man out as never come back i can't see you again he comes in unlawfully without permission and says i just want to talk and she says ok we'll talk and then he commits a felony he's committing a burglary under a three but he hasn't committed a remaining in because the and the intention are not there that's another way that it's different a third with a three obviously includes non intentional felonies so you know classic burger you have to have the plan it has to be purposeful but reckless felonies injury to a child even felony murder which is possibly a strict liability offense there is no intent in the sense of classic burglary and force as we alluded to in our petition facility could be open to the public that requirement not open to the public only present in a one burglary now i'll say that my friends have not had a chance to respond to these organs i don't mean to spring that on them but i think you'd be worse if the court is going to release you have a remaining in that's not an unlawful entry then the classic scenario and what  ve says the reason this theory was invented theory was you come in with permission and then you hide you wait you wait until it's closed everybody leaves right you have to hide for remaining in that's that's  it but for these reasons again i think we should brief it i don't mean to spring this on them and i think that's a right that that that's not the point but i think if you're going to reconsider this law then we ought to really look at it you know in other words if we're not going to accept this is the first time at the on bach stage the government's taken the position that it's generic burglary and we should look into it closer i want to return to the question about mobile homes there's a lot of talk about the mobile vehicles i have no objection to people who live in manufactured homes up in one i'm not suggesting that that's not the same thing as a mansion we're not talking about things that don't have a registration right all i'm going with is where the supreme court says if it is an automobile if it's a motor vehicle it doesn't count you take issue with the government characterization it's fifty states search of what the what the law was in the fifty states in eighty four ninety six do you agree with that or just you know i do take i do take issue with the statement that fewer than half include all vehicles because  the eighteen nineteen that include all vehicles you got about five or six that include vehicles used for transportation or public transportation right so that i could see over the edge we know that those are not generic burglary even though if we did a strict nose count we could get right halfway or right above it let me add to that that also including what the government calls adapted for specific purposes you've got to i was statute so i can rely on mathis to say whatever the scope of this you know burglary is mathis says it doesn't not if it's a motor vehicle it's also a building or a business purpose or something like that in what we would expect to see in the first case where the supreme court considered an adapted vehicle for a specific purpose and the supreme court's going to say why is the i was statute non generic if my friends are correct the supreme court says this is non generic because it reaches vehicles including those used for storage it reaches vehicles like ice cream trucks including those used for business it reaches vehicles used for hiding from someone who's trying to hurt you like the i was statute and therefore it's non generic but that is not what the supreme court said judge jones they said it is non generic because it reaches a vehicle now but it's just a lot of funds vehicle differently from a vehicle modified for have been texas laws not that based on blankenship you could make that argument but what the statute says is if it's adapted for the overnight accommodation of persons and it's provided elements the burglary of a adapted vehicle habitation is a species of burglary of a vehicle in the generic sense even if texas has chosen to sort of have aggravated super aggravated vehicle burglary if if it is an r v or if it is a trailer with a sleeping quarters agree the upshot of your position is to say the burglary is not burglary for purposes of aca and immigration law in at least half of the state i do disagree with that your honor or at least i don't i don't think my place was really exposes vehicles according you right and so this is why i say on the set on the on the first issue we're only talking about the substantive question i am not prepared to address the divisibility of all of those other statutes i'm not talking about divisibility but i think the i think that you would call it so some of them may be why isn't texas  visible since it clearly depok i feel calls from other kinds of burglaries it might be divisible as to the definition of habitation but on this record the government can't show which one was involved but still you saying these of the vehicles at least twenty five alternative arguments i win if it's non generic i or alternatively i when if it's non visible right he you're right to the extent that you reach regular vehicles regular old vehicles it's undisputed non generic iowa vehicles adapted for a specific purpose and is on that count along with a lot of others it's undisputed that's non generic right so at that point you can no longer get to whatever will the government's advocating by a nose count your honor i can see that my time's expired and we do