mr right thank you your honor in may it please the court i am matthew right here on behalf of michael harold and we're asking this court to you and the our criminal act now that the supreme court has struck down the act as residual clause this case is easily resolved in mr harold's favor and the controlling authority is shepherds versus united states from the state supreme court under shepherd h circuit if we could add to that the government was kind enough to sign on page five or a little v of its appendix the supplemental brief united states versus cares or henriques from the fourth circuit that's another court that has held that a statu just like this one not even just like this one but the fact that it might possibly be committed against a vehicle was enough to drive that court away from applying even the guideline and handsome and which is broader in this circuit i'd also point out and we're going to twenty eight jane can get ready there's a case called united states versus pretty p r i d d why from the sixth circuit that's from december fifteenth of twenty fifteen so just a couple of weeks ago the holding of the court really doesn't address this point it's not unlike our decision i silver this court decision in silver they're not addressing the vehicle distinction but judge white concurred separately to say not so fast we should not say that tennessee is aggravated burglary statute one of the inside of the government's brief  is we shouldn't say that it's a violent felony because it could be committed against a vehicle so all of these are lines with the word directly responsive to your question judge southwick i'd also point out it's not a perfect analog but if this were the fourth amendment case and if my friends agents were trying to search a motor home the supreme court has said at least one it's not being actively used as a residence it's a vehicle but these are all of the things that we're reaching for because the supreme court has said categorically vehicles are not included within the definition of violent felony i'd also point to legislative history which is something that the government's focused on something that taylor focused on the one nine hundred eighty four version of the a definition for burglary and that definition was limited to buildings and taylor said repeatedly that in one thousand eighty six when congress deleted that specific definition this wasn't intending to create a great change in the definition of burberry it was probably an accident of a complex drafting process but the court said repeatedly in quotes i'd be happy to read that it's practically identical to the enumerated definition in one nine hundred eighty four what's the argument you mentioned relating to the automobile exception in the fourth amendment well that isn't something you brought up in your brief or not it's not your own i've been thinking about themself it's question over the weekend the point you're making is is if vehicle is hooked up to you till of the lines and electrical then it's a home and there would be no automobile exception but if it's movable you're saying then the fourth a member treats it as a vehicle and that would be more analogous to what you think texas law applies to here yes you are and i as of the first part of that i think on the contemporary meaning in several states but this court is not free to write on a blank stay on a blank slate excuse me what you have is shepherd we think taylor we have been under taylor but shepherd very clearly says why do you when under taylor if the court doesn't just say building it says an enclosed space structure and so if texas says berkeley includes vehicles that have been adapted to overnight use that sounding like an enclosed space states which have defined burglary more broadly than it's generic but isn't the supreme court in de camp in all the cases you cite there are there distinguishing between what's a transportation as distinct from a home everyone thinks home invasion violent the ickle nonviolent but what here hypothesizing about is a motor home so it's necessarily both if you stress the home the motor home fix then your agreeing it's a home it qualifies it's violent and and by texas having said adapted for overnight use it sounds like you're in the world to me a residence habitation welling where people could get hurt and that would fall on that side of the line it's a difficult line but why not iran or a couple response to that question the first one being if it is a difficult line if it's a close question we know after johnson the principles of fair notice apply here so this court should not expand the supreme court's definition says very clearly  vehicles should not expanded to include well some vehicle so that's one reason why we couldn't apply that retroactively to mr harold's possession of a firearm second i would say that texas definition is even broader than that it's not just things that are homes that someone that was moving the right something to be parked like the case that we cited in a storage facility no one is living there there is no risk in the case that we cited texas applying very very habitation statute in this non generic way these things just come down to almost a matter of frequency you could have newly constructed homes you can have homes that are in between ownership there's nobody in there what we have is a broad base stature that covers all sorts of factual situation so long as the not at that being used just like many residences at a particular time will not be used as it's just part of the generalization those are your own i think i'd agree with that the difference is that one of them is a building one of them is generic and one of them is what we've always had the model structures though you are i think we should not define structure so broadly in a way that it it essentially negates what the supreme court has said now structure just means any space  enclosed vehicles or included train cars are included things that the supreme court has told us are not included right so in that sense the government's definition of structure or enclosed space really proves too much it it scoops in things that we know are not then use for generic burglary right so my definition has the advantage of being what the supreme court has repeated over and over and over again vehicle no court every those repeated cases consider motorhomes vehicles that were overnight abodes you are that was not explicitly considered i agree and at a more simple level what's your best argument against silver as binding authority on us silver punishing nonconsensual in tree into a building with intent to commit a crime so that is what silva said a subsequent panel of this court that taken by them said on the constantia panel held that we can't read silver so broadly as the government here we can't say all thirty point zero two burglaries we have to look at what part of the statute silver was considering your client pled to both parts that the constant panel looked at i agree the holding of constantia is not an issue in this case other than in the foreclose the statute also punishes nonconsensual entry into a vehicle and so in that sense we think that silver did not hold that habitation which is a vehicle right is generic bribery so it did not hold that later is that what you're saying with constantia is the best i'm asking really on the story decisive where would you point to that we can as another and ignore the published decisions i think we started both sides of cited cases on whether or not your best itself right it is the words of the statute says a building in other words so if it punishes a building and we know that it punishes a vehicle then that cannot be considered to say that thirty point zero two is generic burglary when it's committed against explicitly the fact this can be committed against a vehicle it's still generic burglary we have shepherd after that shepherd says very clearly that if it's committed against a vehicle or even if we can't tell whether the target of this burglary offense was a vehicle or building the government loses that if it wins and then this is not an offhanded or an accidental language we lifted from supreme court opinion they are now picked it up and made this the textbook with substantial dissent but you've got the circuit disagreeing with grisel citing still as authority to disagree with post the supreme court cases you want i think you're right and this is why at returning to the point i started with after johnson i think that a tie goes to the defendant in this case we are in real danger interpret the statute in a way that and on backcourt read even before shepherd on the on what ninth circuit would say it doesn't it doesn't reach a statute like this you've also got the fourth circuit which went so far as to say and if you look at the maryland statute it was issue in the issue in the henriques case it doesn't say vehicles it's not nearly as explicit as ours as it was in the case as we've mosque motorhome and that's the other thing that i just want i want to end of the fact that we're told we're not talking about things places where people are living we're talking about something that is mothball in storage the fact is most of the vehicles that satisf behalf of the united states i think that's a perfect point segue to my argument because i want to emphasize if nothing else this notion that texas is in a minority position because under its laws he would have it throwing a cotton in the back of a van converts it into a habitation it's wrong and it's wrong for at least two reasons first it's an incorrect statement of what texas law is the blankenship case that i've cited in my  supplemental brief notes that very thing it points to a prior decision the texas court of criminal appeals prior decision in jones where they looked at this issue of what does it mean to be adapted for overnight accommodation is it capable of no it's not just simply capable of over not accommodation they rejected that in jones because using the courts language any pickup truck that could have bed rolls in the back would then be a habitation and that's not correct instead in  ship what the court said was that whether something is a habitation under texas law is a complex factual issue to be determined by the jury and in doing that it's to consider several factors including whether it was actually use intended to be used as a habitation whether it had bedding and other accoutrements that you would expect in a habitation whether it had utilities such as electricity heating air conditioning water and sewer so to say that simply throwing a cot in the back of a van converts it into a habitation under texas law is is incorrect instead texas like other states recognizes those vehicles that were adapted for that were intended used for  v that hasn't yet sold but was designed for and in people don't buy r v s so that they can run to the grocery store on or things like that a normal what you would use a normal automobile for their bought for the purpose of overnight lodging and camping not for just simple locomotion from one place to another but we look at taylor and think about divergent our definition the risks of hourman all that goes reeks of violence and all that goes into that it seems to me th gion generic quality of a lot of statutes burglarizing of residences that are on occupied or just you know you can have and handsome and under state law but if you're looking at a structure or a building whether is occupied whether it's for sale or whatever else is not situations as i just hypothesize sells a lot for them or viz they don't seem to have anywhere near the frequency of risk of color of the contemporary generic definition of burglaries opposed to be focused on some word about what you're asking us to do to extend this to a lot of situations that are far beyond the kinds of horrors that taylor was talking about inherent in contemporary definition well i think that those situations sail r v s on a sales lot that are pending sale ha never been used before would be akin to what your owner pointed out with my friends argument housing subdivisions that are are completed but not yet occupied you know the supreme court i think and taylor explicitly rejected the notion that actual occupation is a sort of a scenic or non of a generic burglary because they said that congress certainly could have restricted burglaries to only those that present greater risk of that violent confrontation things such as where the burglary the burglary occurs the burglar has a violent weapon or where it's occupied and they said that's not what  intended in the generic definition of burglary the line you're seeing use enclosed space used for locomotion nonviolent enclosed space used for habitation so this actually yes i think that th e line that the supreme court has drawn and i think the court is correct that that in tailor in sense when the court is talked about automobiles or cars or vehicles the talking about those to choose those vehicles used for mobility moving moving people or things from one place to another not overnight abodes that taylor incorporates at least those structures that are inhabitable in the fourth amendment point that he's brought up in a whirl argument is not really illuminating or do you think you under it i don't think it is because that that is animated by different concern the whole automobile exception of the fourth amendment is animated by the fact that these things can move around and we might not be able to get a warrant at that immediate moment because it might be out of the jurisdiction that's what animates the fourth amendment issue here we're talking about structures the quality of the structure being used as a place where people live whenever we rule is do you agree that there is a split i'm blanking on that particular or i would point out that the ninth circuit prior to brazil in sweden actually credited the texas statute in its distinction between  actually a vehicle that's adapted for overnight accommodation and a motor vehicle which by definition excludes the habitation whereas the six circuit the sixth circuit as i did them in the pre j brief the prater decision saying this would count but that was residual clause and they had dicked on this point which would have suggested they may be agreed with the majority in the night you might think that i do recall that and i do recall there being a residual clause decision so that they did at least superficially credit that ok maybe it can't qualify as generic burglary because it includes habitations that are that are adapted for overnight accommodation but again if we go but come back to that are going to yes or for conducting business there yes oregon is not unlike a lot of states i don't know because i think what it points out is that oregon like a lot of states protect under burglary statutes inhabitable structures so it's not just structures where people live sleep eat and want to protect the tax truck to protect from burglary texas texas is it includes only those to those mobile structures that are that are adapted for which i think incorporates intended for used for overnight accommodation and organs goes more broadly and as a pointed out in the in the appendix to the supplemental brief a vast majority of states would protect those structures so i don't are we free to treat silva's non binding under section thirty eight to thirty point zero to a one qualifies as a generic burglary for the purposes of nine twenty four home built for have a tyson this year from dallas i would submit that graceland isn't really a home when you do how do you fit that into this category i think it's a i think it's a fact issue for a jury to determine and they may say that although it has walls and a roof and utilities and things like that if it's our federal and then you have send tonio you know how you find it and many said there's places where you have two or more model homes built on the sides of major highways are never intended for constructed for it to be occupied on the freeway and that would be the perfect argument to make to the jury that would be the perfect argument to make to a jury why that a particular defendant should be guilty of burglarizing a building rather than burglarizing a habit i want to note here another thing that he had argued was that takes is a more already position because it doesn't require that actual use but texas is actually in in the majority in that it's like other states a majority of states that that protect under burglary statutes those as habitations those buildings and other structures including mobile structures that are designed for adapted for intended for use for overnight lodging things like i can't with precision say what the outer bounds of texas law is as far as what would be a habitation a significant number of people living that way but i don't think that the fact that they are actually for instance sleeping in the back the definition structure a vehicle that is adapted for the overnight accommodation that would just be given to the jury it would end at some point it would have to be out of bounds would be i guess discuss have seen many of them but but again going back to the intent of congress and including all burglaries of buildings and structures and i would suggest that that means inhabitable structures when they said automobiles and vending machines those are not inhabitable structures but going back to the intent of of congress those the fancy horse trailer things like that are inhabit when the whole purpose of including burglary in the aca was because those burglaries of inhabitable buildings and structures are have a propensity to devolve into a violent confrontation shootings and automobiles but when you're breaking into a place where people eat sleep live even do business there's there is that propensity to for it to devolve into a violent confrontation and congress intended to capture all of those nothing that the court has said nothing that congress did implies that by incorporating burglary into aca they meant to exclude  those burglars that break into mobile and habitable structures i think that mr hill's argument really has four primary disadvantages i think first has the problem of being inconsistent with taylor second has the problem of being inconsistent with the intent of congress as explained in taylor third it's inconsistent with the majority of states burglary statutes and fourth it would reduce result and sort of absurd result where at least under texas law and i would submit that under several other states if we follow him to his conclusion that texas burglary of a habitation isn't a generic burglary we end up with an anomalous result where in texas burglars who have a history of breaking into nonresidential buildings things like barns and warehouses and things like that wind up being covered under aca but those that have have a history of breaking into first was it's inconsistent with taylor how's it inconsistent with taylor but i can see how it might be intention with the intent of congress to perceive home invasions as the worst type of violence threatening activity but what's the language  tailored that this would be inconsistent with its buildings and structures oh and a motorhome is a struct a motorhome is absolutely a structure and it's an in habitable structure in fact motor homes are designed to be inhabited unlike a vehicle where someone sleeps in the back seat or something like that so yes it's inconsistent with taylor it's inconsistent with the intent of congress with a majority of states laws and it would  result in an absurd result when we look at taylor and we see what the court has said about the generic definition of burglary we see that it encompasses buildings and at least those structures that are designed for intended for know because i've i think that the court relied on its prior decision and sweeten which applied to texas statute so the government one below went all bach as far as you know no search filing i think that's correct i think that's correct i'm not certain  search filing i have seen an adverse decision memo but i don't think it you know i don't know the position or whether or not the court is balanced by still that court reached the right result taylor in defining generic burglary certainly included not just buildings but obviously buildings and structures and in doing that incorporated at least those structures that are mobile but that are designed you want to start off to answer judge higginson's question i apologize i wasn't ready with the citations these are on page fourteen fifteen bottom of fourteen of our initial brief cooper industries versus obvious services questions which merely lurk in the record neither brought to the attention of the court  or ruled upon are not to be considered as having been so decided as to cost the presses we also cite an old decision from chief justice marshall it's a well established principle started assizes coopers addictive case really it's not when you have the holding i guess that gets back to you say the holding isn't just thirty oh two is generic it's thirty or two as to a building right because that's what silva said the panel said so we also know it isn't thirty point zero two as a whole because a subsequent panel said so right silver says nothing about a one versus a three it took constantia to come and look at what silva was actually talking about to do it we're just asking you to do the same thing that the court did in constantia silva tells future panels it's talking about buildings and not vehicles i think a question that has gone unanswered from the government is at what point in time did vehicles meaning things with four wheels and an engine that go down the highway at what point did they become part of the generic burglary definition i think we all agree the distinction based on how this place is used the distinction is is it a building or structure or is it a vehicle i own automobiles that taylor used to separate makes it very clear that it's a vehicle so i think that the fact that a business could be carried on within the place is not something that makes the difference between violent or nonviolent because buildings are protected by generic burglary this is sort of a general theme for this argument is we have something very clear categorical without exception from the supreme court which i will concede may not have considered the point of motorhomes but categorical language which says if it's against a vehicle it's not generic burglary it's nonviolent right and we're applying that against a decision from we have from sylva is a subsequent panel that said silwood doesn't hold what it appears to it's not thirty point zero two as a whole that it's not talking about a three and a three isn't implied in civil so we already know we also have subsequent authority from a superior court which is shepherd which i think is the case as i said the but they call their home is a well as being a vehicle then we have cut out you know your argument a large number of situations in which burglary is that is most dangerous to people who are living in these in these structures concern which is expressed very eloquently in the government supplemental briefs is best directed at the institution of congress because congress is the one that defines the scope of the arm clear criminal act and handsome and what prior convictions  party standing before you has the ear of congress right and if this is the way that we need to expand the definition of violent felony mr mackay's friends are the ones who can achieve that end right august will do it trust us departments are saying that they think that they will at least listen to the justice department they will not listen to michael harold write he did either he does not have a seat at the table there these questions these policy questions about what should be included or shouldn't be included are best directed at congress and in an alternative way to the supreme court to i'm sorry your honor may depend on congress clarity your honor it's not congress the supreme court and we would say the supreme court's clearly held if it's a vehicle it doesn't count all right kelso