the purpose of committing a crime that was the rule of common law it remained the majority view at the time of act and taylor for two main reasons the court should confirm the generic burglary retains that traditional requirement of contemporaneous inten intent at the time of the initial trespass first the source is that matter under taylor show that remaining in was understood as a modest expansion of the traditional offense to cover those who entered lawfully but then overstay their welcome to commit a crime but the government reads taylor's use of that one word remaining in as a sharp break from that tradition under that few remaining would cover anyone who enters unlawfully regardless of whether they had that  that had to find remaining in burglary more broadly than than our definition i think that's well below the threshold and in fact taylor contemplated that there would be a few it gave the example of california in which shoplifting qualified as burglary with somewhere between nine and fourteen well that the government claims six statutes there were twenty nine statutes as of twenty nine dictions as of nine hundred eighty six that had remaining in variance but i think when you when you look at how the states had interpreted those and and in some cases at the plain language of the statute i think the best reading of where those states were it shows that a majority even of the remaining instead states retain requirement of contemporary if we look at the statutes in the existence in one nine hundred eighty six and we count only those in which there is a judicial opinion interpretating the statute on the remaining in question and not those which contain dicked in cases involving where the where there was an intent at the time of entry what is the break down well as you know we we think you should not only lie no you think we should look more broadly you want us to count all the statutes in which there is no remaining in burglary to start out with correct be taylor refers taylor instructs to look at how a majority of states define burglary how we know that taylor that taylor's definition of burglary includes remaining in does it not correct so then why would we look at the the statutes that don't have any remaining in element at all because the twenty two jurisdictions that had just entry burglary show a widespread it here insta that traditional rule that you needed intent at the time of entry and the government's rule the government's interpretation of the taylor test takes that away because they say if you enter unlawfully without any intent at the time and you form intent later that's burglary and that's not consistent that's much broader than the twenty two entries states but i think if i can respond to the question about just looking at the right  entry followed by a subsequent formation of intent and i take a point that may not be one hundred percent on point with the question but we think it forecloses the government's reading again because they that preserves the requirement of intent at initial lawful entry the also some statutes justice alito where the plain language of the statute we think supports our view maine had a statutory provision that said you can be punished not only for burglary but also for the offense that you commit after entering or can look and see hello there really is a split on this question but in one thousand nine hundred six there were so few cases ordered or statutes that clearly made the distinction and put a state on one side or the other rather and if that's the case if the distinction wasn't salient why would we assume that congress meant to incorporate it into the burglary element well i think the court typically interpret statutes to assume some degree of continuity with what had come before and here taylor acknowledged the common law rule and we have a number of authorities that suggest that this contemporaneous intent requirement was was the essential thing that is differentiated burglary from tr sweet definition that was in existence before nine hundred eighty six how does that inform our analysis so the court said in taylor that it was adopting a definition that was very close to the states that read it your way and the states that really the government's way you mentioned at least three or four that predated one nine hundred eighty six that read it your way at nine hundred eighty six home many states opined in the government in the government's way that government has five where there were two different decisions and texas which adopted a slightly different statutory language that made clear that it was covering anyone w present and then committed i think you know our blue brief we cited fifteen jurisdictions fifteen of the twenty nine but i think again if we look at the entry states that gets us twenty two as of nine hundred eighty six and then we get  over the hurdle of the taylor which is not seen as if there's a third of not quite a third a little less than a third of the states isn't that enough to say that that's what congress had in mind of taylor says only a few  would be excluded by its definition that's a lot more than a few well we taylor says you're trying to craft a generic burglary definition that aligns with how most states viewed it  burglary at the time and we think most states few burglary in our way and so the government has a different reading if you adopt our rule that it it will exclude six jurisdictions as of one nine hundred eighty six and i think that's below the threshold the court has declined to read a statute in a way that might exclude ten jurors i'm sorry so what was the fifteen that you were charged fifteen our jurisdictions that read remaining in our way oh i'm sorry i'd that's not the question i asked oh i'm sorry as of one nine hundred eighty six how many jurisdictions read it the government's one six six five five using intermediate mostly intermediate state court decisions and one was texas what has how large is that number group since one nine hundred eighty six so the government cites eighteen jurisdictions today but we think this court's decision in castleman and stop playing looks when it asked the question of how many jurisdictions would be excluded is looking to the time that congress adopted the that language could could support our rule or the government's will potentially but if you look at the rest of what lafave said look they will would to stick with that sentence how could it it said the intent need only exist at the time the defendant unlawfully remained within and we think that remaining within refers to that point where somebody overstays their welcome and i think you can see that by how we live save discuss the other remaining in statute they set the bill save treat said for instance it gave one example of what the remaining statutes were intended to do and it's that classic bank customer who comes into the bank while the bank is open and then stays on just steal the bank's money that i think i classic example of what states were trying to get at when they added the words remaining but the fave then talked about the text and said texas has a different different words in it statute and it says if you're present in and you commit a crime then that's that that hope myself to some money is any the less violent or risk of violence or risk is there any less risk there than when he gets the idea of going into the bank two weeks earlier yes i think that the the existence of pre formed intent so somebody who comes to the bank with the dance planned to commit another crime shows that they will be more resolute in their desire to accomplish that crime it may result in them bringing a weapon because they know they're going to do that and i think it aligns with this with the fact that aca is governing career criminals trying to select people who have that profit motive to do multiple  crimes and you look at the fact patterns of the cases that are really the point of disagreement between us and the government you know gains from the new york court of appeals a homeless person who breaks into a warehouse to get out of the cold while he's in there decides to grab a jacket and is caught body doesn't intrusion to commit a crime and i think that's that captures this idea of of why we care about pre formed intent but part of our understanding of why burglary is is is a risky crime is when the burglar meets somebody else the victim the police officer who ever and that person is not going to know when the criminal formed his intent that's correct but  the government's position comes very close to saying that anytime you are present somewhere where you're not supposed to be there is that risk of a violent confrontation and congress did not use the word trespass could have enumerated trespass and i think the government's position comes close to that and then second i do think there is you know a distinction from the from the victim or the property owners perspective of somebody who comes having pre formed the intent to do something else as opposed to the innocent rationales of somebody who's trespassing for for for doing something other than committing a crime is that a fence we're concerned with here is third degree home and conviction in michigan anything like these cases that you've just described in that case is lying under stand it he assaulted his girlfriend and then this is what the judge sad as the factual basis for his no contest plea the victim reported to mr quarrel's broke in through a screen window and assaulted her while in the house and the judge said quote we certainly can infer that he had an intent to commit an assault while he was entering and this is stablish is that he did commit an assault while he was in the  even if so i think under this court the way this court said in sheppard and math is the kinds of facts that are available to the sentencing judge those are limited to ones where the defendant confirm the accuracy but i think under under the court's categor circuit very clearly engaged with the question of what remaining in the trailer didn't say that the statute had do exactly correspond to generic groups that substantially corresponds that's right but we think that  the element here of contemporaneous intent is what's been called the most fundamental essence of burglary so i think substantial it's hard to say that it's substantially corresponds if it's missing you know the core element when you that's great well the number six i think was how many states at the time of aca had a clearly adopted the government's reading and the government says identifies only six we think the other jurisdictions are most fairly read to have adopted where especially when viewed in light of the background interpretive principles that you're going to assume a degree of continuity and you're going to not assume that the states had completely reconfigured the offense of burglary just by adding a word remaining in that well some jurisdictions have gone towards the government's view the government identifies eighteen as of today there are some jurisdictions that have adopted our view and nineteen jurisdictions that have not adopted any remaining in and have stayed only defining burglary as intended entry so it counted so if the question is what's the headcount today yes nineteen states from the intent at entry so entry only three states  have remaining statutes and they have adopted our rule eighteen states the government is identified today as adopting their rule and i think that leaves a leaven that gets us to fifty one jurisdictions where the government implicitly says they haven't resolved the question the eighteen states that the government says have their rule do they have other burglary statutes or will would be essentially removing the only burglary statutes of those states so focused on today's laws that's going to depend on how the states have treated the statutes we cited in our brief the pretty case from the six circuit tennessee is one of the statutes the pretty case decided that tennessee was divisible michigan has two other burglary statutes in separate sections with separate punishments that apply to breaking and entry including of a dwelling they don't have the remaining in issue so that would remain regardless of what you just cited here and then i think it would depend on how the divisibility analysis influential and the commentaries to that burglary statue which we cited in our reply brief say explicitly that entry was the common more common for more common right and i think that that shows why the states would not have burglaries from potentially one thousand or more states as predicates so i don't think so again i think that the relevant question is how many would have been knocked out at the time congress enacted aca since that i think is the fairest reading of castlemaine and stoke playing as of today i think it depends on the divisibility analysis and there are a number of jurisdictions of that eighteen where i think it would be a litigator issue and the number of jurisdictions that have other burglary statutes that are affected so is there any way to tell maybe there is not among remaining in burglaries what proportion of them are people who form their intent later verses form their intent at the moment of decision to remain i'm not aware of a statistic on that front i would say that it the benefit of doing the fifty states survey gives you a sense of where that issue has been material and you see it in the cases cited in our brief where you either have somebody who you know was lawfully present went into the bank or into the store or you have a situation where the authorization to enter was disputed and so the prosecution will charge both and often the easier course if you take the government's reading is well don't worry about whether intent just at the time of entry because you know there was a commission of a misdemeanor or a crime all year why it has to be has to be very unusual that someone enters a bank and only then does it occur to them that that's where money is that they might want to rob well i think the reason that the states adopted these remaining invariance is but because you're right in the sense that what they were trying to get at was the person who came to the bank with that plan and they were going to avoid having to break in because they could enter lawfully and there was a sense that that person is a burglar just like the one who actually breaks and enters but i think that argument because those are captured under both both sides tests because that if that person has the intent at the time he his presence in the in the bank becomes on lawful what do you make of taylor's definition of a burglary when the court said that the contemporary meaning of burglary means at least the following sorry contains at least the following elements an unlawful or  into or remaining in a building or other structure with intent to commit a crime how do you read how can you read that consistent with your interpretation i think the way the eighth and fifth circuits and seventh circuits which is that you are a defining burglary coming at it against the background of a common law rule that everyone agrees the government  had this contemporaneous and to require me and your pairing remaining with entry and everyone agrees entry is a point in time so you have the can textual if you inform the meaning of remaining by context and then you have remaining modified by the words with intent since remaining remaining with intent to commit a crime right so where do we get the point of entry there i think you get it i'm sorry i'm with entry where do you how do you read into that the requirement that the the intent has to be present at the time of entry because you're reading and remaining in the context of entry and and you are trying to define in a sense of burglary at a time or twenty two states unquestionably said you have to have intent entry words you know disjunctive pair of words you look at one in the context of the other and with there are two distinct concepts and at least i read taylor saying these two distinct concepts are ways you can fall within generic burger but there are two distinct concepts engaged in the effort of defining what burglary was in most states at that time and i think if you read remaining in the continuous way that the government says it all but eliminates the intended entry requirement i don't think that that's what taylor would have done implicitly and again that's because although there were some states you acknowledge that supported the government's position at the time and that are cited in with fav which were cited right after this sentence in taylor's the lafave treatis correct and taylor acknowledged that its definition was not going to be perfect it was not going to be maximalist in the sense of capturing every single state and gave some examples of the vending machine california shoplifting is burglary so there may be some states that are broader  but just to get back at you the government's definition puts entry completely out of focus as the fifth circuit says and it makes entry the small minority view because every unlawful entry followed by formation of intent is burglary under their view and i just think taylor did not give an indication of changing diverting that far the if you read taylor as creating simply an employee an empty vessel to be filled in as states decided you know whether they would expand their burglary statute i know that's an odd way to rule read a criminal statute i mean what you say is a is an argument that one might make to a state legislature in defining burglary because the other definition can potentially catch some of these and here your client has two prior convictions for assault with a deadly weapon the so this is just the third so this is not a case where this definition is is imposing a severe punishment on somebody who you might argue is less blameworthy isn't that right well i think under one of the court's categorical approach to the question is the statutes not the not the conduct and i don't think that the the just needing three i think you can really just begin and end with the text here the statute says burglary this court has already held that that means any statute with these basic elements which include remaining with intent and that that's true regardless of the exact definition or  label and this is just what it means to remain in a place you remain there as long as you stay that's what this court already held in cora's the case about the alien crewman who remained in the united states unlawfully because he was still here and that's also how this works in the l trespass which i think is really important here because it has the same parent have to enter a land or remain on land without permission and the remaining prong for trespass is a continuing trespass it's telling you that if you're on somebody else's land without their permission doesn't matter how how you got there how long you've been there you're under a continuing obligation to leave and i think that the right way to understand the taylor formulation and really what's happening in the state laws is a line in there burglar so that there's a trespasser in your house or some other building or other structure like that and they have the intent to commit the crime that's what burglary is and then i think another important point about the text here right it's mr tripp the formulation that taylor use and i agree it tends to support your position but i mean nobody could think that the person who was writing the tailor opinion had this issue in mind at that point so it's one of these things of the how do we read our own opinions and do we read them like statutes or do we read them a little bit differently understanding what was and what wasn't in the mind of the court at that time right and i think it important part of this next piece that i was a about to get to where it says that that that the stats you just need to have these basic elements and it doesn't matter how exactly they are defined and labeled and so i think what it tells you is that when there's variation among the states right that congress is trying to cast a broad net was trying to pick up burglary statutes typical range of variation and so on there's variation among the states about how do you define the remaining pronk in their burglary statute and how long does it last how does it interact with the intent prong and their burglary statute it's still a burglary statute it doesn't matter for purposes of taylor it's just too far down in the weeds and i think time burglary was limited to two welling's and in more recent generations it's expanded to a break in to any structure that people on but still your definition you reading would be congress intended to sweep in every statute that called itself burglary basically that's your what you're saying they were looking at the common law they weren't looking at the majority of states which were who defined it as just and tree and when they previously used the word syrup touche asli they were talking about they were thinking about everybody remains without permission even if they're not there are serious issues i think there's a lot packed in there are a couple responses i mean i think what congress was trying to pick up was the typical range of burglary statutes in the almost verbatim if i might on that just to interrupt i'm sorry but just to get that plainfield right we have the twenty nine but then we have i believe about six where we have subsequent judicial decisions indicating that it required intent upon entry some of which were later overturned by legislatures or whatever and you're asking us to not pay attention to those six and use twenty nine rather than i think it's twenty three something like that i might have my numbers not quite right but it's slightly under half and you ask us to ignore those subsequent decisions because they came after ninety six but we usually look at statutes and say judicial later judicial decisions were interpreting as they were written at the time retroactively and that they're not pieces of legislation that the prospect of effect so i'm not sure why we would ignore those six or whatever number of cases would be and take us down to twenty three rather than twenty nine so i'm sorry for interrupting but the premise of the entire discussions it's twenty nine i guess i need some help on so that's the case i think the answer of all get to the same place and that i think really our position is no matter how you look at this and the taylor formulation is enter or remain to twenty nine states have remaining in burglary and the overwhelming majority them were almost verbatim that formulation just enter remain right that what they were saying this is just what it means to remain in a place right and so then if you trying to figure out what is it the states were doing again i think the first place you would look is there statutes there statues just say remain if you look at their judicial decisions in one thousand nine hundred six or imagine your congress drafting this statute literally every single judicial opinion that point right and why should i ignore those later judicial decisions i guess i'm just looking for a reason i guess it when i'm not trying to count so we're trying to put two two different figures and trying to understand sort of two different points in time one is what would the effect of adopting petitioners ruling be and there we have to look to the change in the law right and i think they recognize this that today the number is that there's eighteen states that have that read remain to demean remain either in their case response to his cabin on this question i mean this is very clearly i think if you look at these cases the just just i'm sure the practical effects for the government are terrible and you don't want my sympathy i'm sure on any of that but  i guess you'd agree with me judicial decisions normally operate retroactively i agree with you that you know it ordinarily we understand the judicial opinion too to reflect the state of the law as it existed at the time i'm just trying to and i guess i'm just totally different tension we had some conversation last terms to sim's about how we approach these cases generally and i guess i'm wondering whether government's given any for the flock to that  this approach of counting up states and then asking whether this statute matches the platonic ideal of burglary in one thousand nine hundred six according to however fifty states surveyed it's is later depended upon this mathematical exercise so as a government considered about whether we should consider whether the states if they call something burglary whether that should be dispositive for example to my knowledge we haven't changed our position on that any sort of an in new thing on that but i would say i think this case is honestly an opportunity to try to simplify things that what you can just say here is that the taylor formulation it means what it says right that enter remain that's good enough that it doesn't matter how exactly the states define these things and there's disagreement among the states on all kinds of other subsidiary issues right what constitutes present what makes your presence on privilege whether exempt the whole building or only part of it what exactly constitutes an entry in particular has given you no logical stopping point in the reason is because they're already way past it right taylor says that that the disagreement among the states about how to interpret these these different elements it just doesn't matter there's still burglary statutes internally or so that's really the heart of the heart of our submission here that the it's just too far down in the weeds taylor said substantially corresponds not exactly corresponds right and right if you and again just want to sort take a step back and emphasize that you know the reason congress includes is taylor says congress was focused on modern war enforcement concerns not quote arcane distinctions that have little relevance to modern law enforcement concerns as harder to think of a better description of this rule i mean if you imagine being at home woken at night from the sound of footsteps downstairs you come downstairs and there's an intruder in your house who's stealing your television or worse is like intent on assaulting you  don't think anybody would care in that situation or know whether the intruder develop that intent three before three seconds after breaking and the timing just doesn't matter what matters if there's an intruder in your house who's bent on stealing your television or assaulting you i think the same another very powerful illustration i think that it's a different reaction if you hear someone downstairs and they're in your pantry and you come down and they're stuffing their face with who do you think you're going to have the same reaction to that  i'm stuck on a little something different part react badly to all myself but i guess i'm wondering though those other crimes are bad too nobody is here to defend train without intent and then committing a crime with intently nobody will be thinks that's a good thing but the question is whether it's burglary and burglaries a very specific crime and common law it did require intent right on entry so calling it some arcane thing that is nuanced to a point where nobody cares is like asking us to ignore a thousand years worth of law and also possibly a majority of the you need to have the intent while you are remaining right we also know that the whole point of the remaining prong was to eliminate the common law requirement that there be an entry right as the only thing it's doing in any of these statutes is a limited in that requirement it was part and parcel of the state's getting rid of the requirement that there be a break in that it be a dwelling that it be at night that it be with the intent to commit a felony we also know that the states were not only focusing on the sort of surreptitious remain in type fact pattern because only a tiny number of the states required that most of them just said remain in and i think the law i mean the logs to pick up on justice kagan's question from earlier the logs was sufficiently changed by nine hundred eighty six that the author of the opinion taylor knew enough to put remaining and it's undisputed that remaining in is is is part of what congress was trying to reach and probably i guess what i'm generous to trip is how the intent requirement figures in that there is no question that they says and and that the remaining in was by then a known feature but just as you said the remaining in was really an attempt to close a loophole if you will in the entry and say look we have these cases that are coming up w the person is not entering unlawfully the person the person is only remaining unlawfully and so it was an attempt to close that loophole but then the question that i think mr mara well as reason is whether the intent to close that loophole suggests that there was also a desire to really shift the historic common law understanding of when the intent needed to develop and he suggested no it was just an attempt to close the small loophole but you shouldn't read into that some much larger desire to to to shift the understanding of intent and when it arises a couple of responses to that so first of all i think this is actually not a very big shift because this time in question doesn't come up very much there's still eleven states that have remained in burglary on the books for decades the time in question is never i don't have any case law on this and then as for what the states were doing as i was saying we know that they were add in the remaining prong to eliminate the requirement that there be an entry and we know that they were doing more than just picking up the guy who was staying behind and hiding in a store after hours who could steal things inside because they weren't requiring that it be  then to figure out what is it with they were trying to do i think really the natural way to understand that is just read the text of their statutes they say remain this is just what it means to remain in a place that you remain and as long as you stay if you want to dig deeper and look at the in the time in one thousand nine hundred six the case always unanimous on this timing question in favor of reading that to just mean what it says and so i think really and then again to come back taylor focus it focuses on it says look at what the states are trying to on modern law enforcement concerns right and the concern of course is if there's a trespasser in your house or some other building or other structure like that and that he's intent on committing a crime and again i think it's really important that in many of these cases just nobody would care when the intent was formed the problem is that there's the criminally minded trespasser a very powerful illustration of this is the domestic violence situation which we talk about in our brief which would be which would be burglary under under petitioners r if an ex boyfriend goes to visit the ex girlfriend she lets him and then they start to argue she says look you need to get out of here if at that moment he intends to assault her that's burglary under under petitioner's roll because he remains with intent but if he decides to  three or four seconds later it's not just you know from the perspective of the victim who's being assaulted in her own home by an unwelcome visitor just what does it matter it's true we're trying to figure out something about crime in general in general is more likely to involve violence or not so we have situation one were he intends to commit the crime inside the house either when he breaks in or when he first roommates situation two he doesn't form the intent to commit a crime until after he first breaks in or first unlawfully burmese those are the two situations i would have always thought this isn't the fiftieth time i've asked this question but i would have always thought you know you could look up the cases on it and get an idea empirically and then we'd have at least something to go on even if there were only appellate cases you know has anyone ever done that i think exact many of these are very significant crimes i want to be clear that the situation i was talking about was somebody coming in and then later seeing a woman inside he decides to assault the domestic violence situation i was talking about these are not hypotheticals these are the facts of  d i think they illustrate that what these people are engaged in is very erratic and impulsive decision making right that they have the already decided to break into somebody's house and then they make an impulsive or or to be in a place where they're not supposed to be and leave and then they make a decision to engage in some other further conduct i think in many cases is really very very serious it's true there are some that are much more minor like playing games the facts of that but again what makes that sympathetic is not the time in it's that it's  a homeless guy who's cold right and you could have that same homeless guy you know in buffalo it's snowing it's very very cold he's walking down the street he looks in the window and he sees a coat and so he be he breaks and he grabs the cone you goes that's burglary under their ru even though it's just equally sympathetic what makes it sympathetic or not are the facts of the underlying case not the timing rule that he serves in here i'm not sure whether this is here nor there but you know some of the serious crimes that you just mentioned and they are extremely serious if you went out on the street and asked one hundred people whether those assault cases or burglary you would get one hundred no answers does that matter i think of those the place where that instinct is most powerful is for the domestic violence situation where i agree that that is like if you will is intuitively different and i think this was really wood drove the drafters of the model penal code and since there's some language in la fave to say you shouldn't have remaining in burglary and if you do at all it should be surreptitious and i think really the short answer is that the states didn't buy it the states just didn't do that they didn't limited to remain surreptitious remain in the majority of them adopted romanian statutes  even more of them have it today and so i think basically the states have recognized that there's something really much more fundamental here it's not about the nature of the intrusion it's about the fact that there's an unwelcome visitor that somebody in your home it's about the safety and security of a person in their own home or in some other space like that from an unwelcome visitor who is bent on committing some kind of crime and i think the fact that a lot of these are actually i mean a lot a lot of these are really very very serious crimes when that's my main question does come up why aren't is the department ever thought you don't have to answer this is the department ever thought of recommending to congress change so that instead of looking at the generic crime where the answer is going to be sometimes yes sometimes no there's violence but saying look and see whether the person on the individual  s that the department is providing technical assistance on but beyond that i'm not sure i know if i asked the same question i asked the other side which is in the universe of burglaries do you have a sense of how many are remaining in  my sense is that it's pretty rare there's pretty few that in the like overwhelming number of burglary cases you're going to have evidence of an unlawful entry and then that's just how you prove it up and that becomes the whole case and i guess actually this gets out to this idea that  reading of remaining makes that prong more important than the entry plung and i think really our response is that it doesn't matter right that if you look at the law of trespass it has the same pairing of to enter or remain and i don't think anybody cares whether one of those is more important than the other or whether many entry trespasses bleed into remain in trespasses that they're covering the waterfront of a trespass and i think it's the same here and if you were to lose this case potentially all burglaries from how many states would no longer be able to be counted as it is it would be eighteen states and counting so there's eighteen states with a population one hundred thirty million today there's another eleven that have still haven't addressed this issue and assuming that the current trends continue probably more of them will remain to mean remains in the same question i asked mr maher well which is how many of those states have their burglary statutes that you could capture can i say we'll burglary and i'd prefer that the real burglary but yeah i think there's  of i think ten of these states have adopted this rule by statute but i don't know how much the different ones are are used relative to each other but you still be tossing out an enormous number of burglary prosecutions you know  including from michigan texas some very big states and then i think another critical point again is that is that position has given you no logical stopping point right that this is it cannot end here if you think that it gets at this level of specificity then why act of what's done once inside if the if the mens rea isn't if it's too minor to care about and we're going to just turn every form of common law larceny into a burglary which is what you're asking us to do in some ways because a lot of the other conduct would be larceny it's not like to be unpunished at common law why should we care about the actus reus and so why does it have to be taking things to be burglary couldn't maybe also conducting fraud while they're inside  california defines burglary to be almost as expensive as that so perhaps that's equally consistent with your argument so actually it's equally consistent with petitioners as well because that it covers any crime that's not covered we agree that there has to be mens rea all right you have to have to intent you have to know that you're on lawfully inside the place that you're on that you're trespassing and we know and we agree that you need to have intent while you're doing that the only dispute answer is that that's that remains first of all the taylor formulation and what the overwhelming majority of states are doing they are saying the you need to unlawfully enter remain in a building or structure with intent to commit a crime that's what these statutes say and if you flip through them you'll see that many of them are so it comes back to county again and then we're just back down to twenty nine versus twenty three and we have to decide i think it's not just about it being minor and it's not just about counting and it is that i think what the states have recognized is that the core of this offense are not these kind  of questions from the common law about did you break in did you enter it's is there a trespasser in your home is intent on committing a crime that if there is he's a burglar i think that's that's really what the states are boiling it down to that is the new modern offense any crime that's what taylor says he agrees with that petitioner would agree that if the person is breaking into our house you know at night with the intent to commit stock fraud on his phone i mean i don't know if that would ever happen but yeah that's burglary under under either  otherwise if you have a very specific laundry list a long list of things you use every set you need to match perfectly all you're going to do is be knocking them out one after another after another until there's really nothing left and i think really defeat the purpose of congress including burglary among an act of predi i guess maybe just one last point here i mean the statute here this is a home invasion statute i think most people would think that this is the heart of modern burglary and i i think if you told the drafters and congress you know imagine a person who thinks should on the bad cases that the government the facts that the government alleges there's no dispute that those are crimes the question is are they burglary they may be trespass they may be assault and they'd be punished separately but congress used the word burglary and i think the reason that we're here is that there is some income group the between the government's account of generic burglary and these cases that just don't feel like burglary and that's why the fifth circuit the seventh circuit have held that taylor is not clear on its face doesn't res issue i think it's worth reminding that less than a year before taylor the new york court of appeals interpreted that state's remaining in statute the way we say that statute we know in colorado another case in other states was a model for other states laws and i think it helps explain what the court may been getting at in taylor the government focuses heavily on trespass and the fact that remaining has a continuous sense in that law i think that's the fundamental problem with their position is that they're equating trespass and burglary and we need some line we workable rule looking to what states did in one thousand nine hundred sixty is an objective foundation it's a point in time and and there isn't actually that much dispute between the parties about what state law was it's just a dispute about what inferences or what conclusions to draw if you walk away from that approach i think you're left with the difficult questions of what is and what isn't risky in a particular consequence and the government i think has has not asked you to revisit taylor in this case as to whether this issue is a big deal i think it is a big deal because the government can just charge entry or remaining and it essentially makes the longstanding traditional rule of intent entry disappear in all but the very small number of cases that the government identifies such as a fleeting entry or an interrupted entry and we don't see an evidence in tailor there was intent to make that big a change if this does become a problem obviously the department is well positioned to ask congress to fix it and if there are no further questions we would suggest that a call the simplicity doesn't justify overlooking hundreds of years under which the essence of burglary has been somebody who trespasses for the purpose of committing a crime