individual indivisible and overbroad because a three subsection of the texas burglary statute does not require that the intent to commit a crime present at the time of entry this matter was briefed at a time before demaio was decided and before of the th circuit issued opinion in herald its latest opinion and herald maybe i should say in which it held to its earlier position that the texas burglary statute is in divisible they did not find it to be overbroad and created a circuit split actually between itself and the th circuit which says that if you have a subsection like in this instance a three of the texas burglary statute where you have a entry and then the commission of a crime they sort of pointed to quarrels of saying well that's sort of like a romanian burglary scuse me and so that still qualifies and therefore it does count as a crime of violence the th circuit in a case called van cannon and if the underlying crime that you commit does not have a qualifying mens radio quality that would make it a specific intent crime then it doesn't qualify so this circuit as far as i know has not addressed this issue and i certainly would appreciate the opportunity to further brief this matter your argument as to whether or not the statute satisfies what apply to the issue as i argued it in my initial brief in other words because the texas perjury statute reaches places such as vehicles accommodated for overnight accommodation that sort of thing that would control in that regard but what i am presenting here and would appreciate the opportunity to present some additional briefing on is that because a the texas burglary statute a three subsection requires the entry of a building and the commission but that at the time he committed it was just felony or theft if you unless you enter with the specific intent to commit a crime you have neither generic burglary or under quarrels they were made in burglary you have something that's different you have an entry without the specific intent and the commission of a crime but maybe i'm confused that aco earlier in this case you had argued in support of your position that this is an end of this whole statute and yet that the fact that you don't require unanimity for each a one aide to a three correct is the basis for that and it seems to me your argument that you're talking about now enough for shape that you but it seems to me that it's inconsistent with your position that since you don't require unanimity those are all means as opposed to elements not presenting an argument very well that makes the statute invisible the next hurdle i have to get over or mr payen has to get over is that it's overbroad in other words i have to establish that not only is the statute invisible but that it's overbroad my and my position is accompanies the entry ok that's under taylor under quarrels they answered the narrow question of remaining in burglary at what point do you have to come up with the intent to commit a crime when you were made a n is it at that very moment or are the broader question of at any time your remaining and under quarrels they answer is at any time your remaining so just understand th the argument was that it was overbroad because the statute which is vehicles correct announced that apparently puts a bit of a dagger into that arguments or so which is the case that you now say supports this new order and the look at the the mens rea which accompanies the crime that was committed in determining whether it reaches that specific intent requirement for a generic burglary commission of this other offense in this case felony or theft with a man is re out of less than intentional there are cases in and under texas law where a person can enter and commit an assault well assault under texas law can be committed knowingly intentionally or recklessly and that's where we hang our hat is that there are statutes under texas law which can be committed with a mens rea of recklessness which is less than the specific intent required for something to be generic burglary question of remaining and i mean i will i will readily admit that i did not raise this argument to begin with but i think that because of the change in the law whether it be under state quarrels of the fish circuits now created a circuit split between itself on the th and th circuit that i would certainly request additional briefing time on this and he should have been said of the two thousand and fifteen manual assuming these arguments that it doesn't qualify as a crime of violence nor as an aggravated felony so therefore it would fall under  that or maybe they will say the crime of allah would have allowed for twelve points right it would have been more than the ten points that that were that was he's under the two thousand and sixteen guys are position what your response to that well my response is that i can state still defeat that argument by showing that this texas burglary conviction is not a crime of violence nor an aggravated felony based on the arguments i've raised which of course the judge has correctly pointed out i didn't initially raise regarding the subsection of a three  rose it's not it's over old and based on that being limited to a dwelling that's correct is it let me ask you this cat theoretical question if there was a nother basis in two thousand and fifteen that was not utilize the there on the p s r just that it is the fact that there was another potential added to make that two thousand and fifteen more what about that i may have i but i thought that i had articulated that in my brief and perhaps i did not but that certainly is was my intention to say what i know there's at least one foot takes it beyond that particular definition of crime violence in the guidelines as i didn't articulate it as well as i thought i'd  morning morning ultimately we believe that through these cases of come out recently sit orals you know harold the government's position has been significantly strengthened and this comes in the case of harold after two remains instructions supreme court or burglary do you can see that would not be a match the because it does because we all have because of the taking issue here are we stand by our brief but ultimately we don't think the court even needs to get to that issue because it qualifies as generally record ok and and under the burglary is she and this may be unfair but we just heard an argument about sorry but what i was asking about was the argument that defense counsel made and she conceded she wanted to prove more than it was new so you may not have been prepared to address the issue that she was saying before without the n t and you could commit it wrecked with recklessly you have a response to that position under coral's we believe that would not be and i think roles covers that issue yes or your honor we can think of a lot of different situations where party and they decide they want to commit some crime of opportunity whatever you all are in there there's the same risk that there's going to be a counter somebody walks in and encounters them during the process of you know if you think of something stealing how was it harmless to apply two thousand of four levels for the defense previous condition just for a felony which i believe he concedes he has a felony conviction however if it weren't aggravated felony that would rise to twelve points and with the other the crime of violence issue that is that is the crime of violence issue ok so you're saying ok for your argument is based on the fact that you could have used the crime of violence correct provision in the guidelines yes or so that i have two questions related to that the st is yeah i asked your opposing counsel whether your we were able to consider a provision that was not utilized for the st time on that that was not considered or advocated for by you below i don't think that we would ultimately i'm not sure if we actually could but our position is that the twenty four month sentence was reasonable under either statutory fr he said during the sentencing that he would have issued or given the same sentence regardless but he was focused i think more on the statute than the guidelines i think you also made reference to the fact he was going to be human very closely to the that you argue for downward departure i'm saying you at least six months as a day sixty three so it seems clear that he was focused on on the guidelines and so i think it's pretty important we figure out which god locked guesser well he also and yeah not one hundred percent sure what he's saying when he when he said i would end up giving the same sentence under either of the statutory schemes which was cited it kind of looks to me issues because both issues have been raised since here in so we don't and they're not mutually exclusive in our view are needed our use of he was trying to account for the fact that there was this dispute and the bottom of the guidelines under two thousand and fifteen he would not just go to the top it were very that's a pretty significant change in approach and yeah much curious as to how you would also won in some of the war troubling aspects with his criminal record things like that and address that his concerns about what this defendant done in his past and the different concerns the senate is that we can't go beyond what he told us in the sentencing hearing but he did say if he said specifically but it appears he was trying to reach a reasonable result under either situation and taking into account the fact that the law is in flux so much at that point thank you but i do hear the question that i asked this harold at the end that would subsume a three into a two of the burglary statute it would turn to a three staff so just some division into a two because it would turn it into a remaining and burglary and that's not what it is it's an entry without consent and then a commission of a crime so it's not the remaining and subsection if you apply corals to find that you know this individual statute that a lready decided this issue but the problem with banana is that it was pretty shameless and so it assumed that texas burglary or that this burglary statute was divisible which the defendant conceded and there so there's no briefing on that as to this matter and so i would argue that boney should not control here as argued my brief because it was decided before to shams and ma it does matter that has said it was reasonable but out of a procedural reasonable analysis what matters his did he properly calculate the guidelines and that's what that's why this is important you know the government can argue all day long that perhaps harmless error but under olinda martina's the defendant has a right to have the his guidelines properly calculated and so that's why this is important yes it is texas burglary does not meet the definition of burglary of a dwelling on of a god and again i have to get over the hurdle of whether it meets the definition of aggravated felony because that is you know that would under be one see he would have gotten eight levels well eight levels is less than the ten levels he got under the two thousand and sixteen manual so thing the other thing i would say was that it is important to mr pena to determine whether texas burglary counts as an aggravated felony in this instance because he was paralyzed and twenty six b two and if that remains on his record that preclude him from ever being readmitted to the united states i mean it has a host of collateral