strong and i don't want it to get lost in the subtle of the big issue the search in this case was legal only if the officers had probable cause to believe on december first that living in his girlfriend's apartment they did not this case really rises and falls on the government's claim that his girlfriend statement two months previously gave the officers probable cause it did or she told them two months before that they were together but then to me also have a key to the apartment he did not have a key to the apartment she told them two months previous that they were together but that they would be moving out in two day officers testimony about yet what they understood so would we need to determine that that was a clear error no finding an order to hold for you know because what the officer said that she said very much earlier was that they were living together but they would be moving out into day the search did not occur until two months later so it was incumbent upon the officers confirm that he was actually and still living there and they say they did not just go and search the apartment they try to they asked a task force officer who works in that area to drive by the apartment regularly to look to see if cars that they fought were mr wilkinsons were there and over a two month period cars that they thought were his were seen at the apartment a total of three times three times mr walker so let's be clear this is a search of an apartment based on the allegation that it was mr wilkinson suppressants when no officer ever saw him there now they did attempt to confirm with the apartment manager contact with mr wilkinson and never want suspected that he was not living as reported in auburn he met with him every month he spoke to him frequently about his domestic violence and drug treatment programs he visited that motel numerous times motel manager repeatedly told him yes he's living here in fact twice after the girlfriend allegedly said that mr wilkinson was living in tacoma twice the complex more than two days later couldn't they also conclude that they hadn't yet moved down first of all they never confirmed it was his car the apartment manager you know the cars were associated with him they say that they had a confidential find a white ford f one fifty pick three times in two months well but why doesn't that corroborate the information that the informant gave to the police in granbury the officer saw the individual answer an apartment by at that location three times in two months well i mean why else would the car be there because he was visiting her this court has been very friendly they were living together so how do we get from living together to just visiting she said that guess i guess what you and i are so i guess what you and i are where we differ is whether or not the surveillance coupled with the information that they had from the informant and from the fiance is sufficient to give the officers probable fact bound determinations don't we have to declare that the district court was clearly erroneous when it concluded based on this evidence that that they had corroborated that he was still there  single fact that the government elected every single one of them that missed this that he said this too much previously that they saw his car three times in two months that they were there was constant contact ahead where i get stuck is that it seems to me that that's exactly where we're not supposed to be doing which has been looking at it case by case basis as you know and even in the federal sentencing guidelines there's a possibility for going to war departures and all kinds of things that could have happened but we're looking at by what is the crime punishable by and that's where it seems to me and i appreciate your comments fixed amount that a judge thomas talked about so i'm still having trouble fitting your argument into decamp and the fact that it's different from those cases i don't think there it is different f kansas i looked carefully last night at north carolina and kansas and sensing structures each one of them has a standard grange so in north carolina they have a mitigated range a standard range and an aggravated range in order to get aggravated range the judge needs to make an extra point and so several courts the fourth and now it looks like the fifth also in the solicitor general has conceded that under the north carolina statute the maximum for the purposes of  is that top of the standard range so that somebody could be punished by more than a year just not the defendant in that case literally in kansas it's the same sort of system there is a standard range and if the judge washington was very clear that the there must be must find something that is not an element of the offense in state versus gore the washington supreme court was very clear you cannot impose an aggravating sentence based on an element if that's or something important to address a couple of factual issues that i think for her are clear from the record and were not clear as a result of the discussion here this morning first of all we did have  the probable cause is based on the statement f s e to the officers on september twenty eighth but that probable cause is also corroborated it's krug rated by the fact that the manager very clearly made to the officers that she still lives there when they investigate in november of two thousand twenty eleven and that mr wilkinson had paid rent any cash on several occasions when she was late in the  rent it also is clear from the records that the officers started their surveillance of the brookside apartments which was searched in november of twenty eleven so it was one month and issue i could i ask you on the second issue it's very logical to start with the one year could you start with the second part of it and that's whether this is a divisible statute and whether it's overbroad your honor i do think it's a is becoming more complex and it makes my head hurt when i think about it but i think this actually does satisfy it for a couple of different reasons and i think the argument sort of breaks down into t unlawfully entered and then remains within to commit the crime they've also unlawfully remained so as as a practical matter those two things often go hand in hand and which is now we have randon which basically says that this black letter law that a statute is divisible only if it contains alternative elements so how do you square the statement d to the white house on a tour and then they didn't leave and they were charged with unlawful entry of course so that's kind of that's the kind of statute that we have here and i haven't quite heard an answer as to why in your brief it's characterized as one thing and render and brendan actually makes clear there is a difference between aliments and means so why why isn't the term let me perhaps the answer the question this way when you're saying alternative elements and if i understand correctly where rand and taking us it's effective sang if you have two separate crimes charged in the statute and if you can show that these are alternative elements of the same crime not that you'd need both  and clinic case wouldn't the jury in washington state have to be instructed that it would have to determine by a unanimous vote whether it was either any illegal entry and i think part of i mean i'll be honest i think part of the problem is that most most of the cases there is no question that both things come together which is why i think the case  invited in but then asked to leave shopping center so i don't think it's a hypothetical in real life and i don't mean that in that it would be i think what i'm attempting to say here is that when the courts and washington state are talking about when you need an unanimity instruction they were clear that if the evidence was sufficient to prove both no unlawful entry and in the not unlawful with regard to duty enter on a tour of the white house and then decide to stay after the two or guy took the rest of the people out and they close the white house for the day and as i understand washington law in that instance you would need to instruct the that the judges did not have discretion to go about one year under those circumstances when she did the calculation when she looked at the at the criminal history and the other factors in the statute you could not exceed if the calculus if the senate if the calculation then resulted in one year you could not exceed it that's what the fundamental difference here is washington allows the court discretion certainly at the time that mr wilkinson conviction took place in one thousand nine hundred four and we didn't have lately had so the question was not even whether or not there needed to be a jury what would the harm be for us to remain and this question if we need to reach the one your question to the district court to consider a new what washington law is what why is it the same or different in north carolina because i don't think there's really been there has been a lot of briefing at all are very clear it's elements that matter not facts and i think that that's consistent both in the one year rule and this rule in either event we have to look at what was actually convicted in this case the elements of  are over brought it's undisputed ok we have i think you are repeating yourself now and we have your argument in mind so i want to thank both counsel for both the briefing and the arguments are very interesting questions the case of united states