mr wall good morning make these court i'm not mistaken i think your primary interest in this case is the aca issue as with the previous case but i don't not going to present any extensive argument on our other that were raised in the previous but i do want to say with regard to the two issues as to the guilt phase justification just justification stance and the prior conviction evidence i would just ask the court to look at this closely i realize that this but i want to make you understand why why i'm not presenting a lot of article on that but i don't want to be overlooked entirely on the actually issue i take a different tact on this thing either of the party supreme in the previous case under actual what matters is prior convictions not what a person did or was alleged to have done but what they were convicted of doing and that skip the category of approaches i think that's fairly easy you look at the documents of conviction because that's what you're looking at what was the person actually convicted of not what they did what were they convicted of so you look at the documents the stat was that conviction rarely there's going to be a  question of whether or not a person was convicted there's only going to be a legal issue as to what that conviction was for whether legally that conviction qualifies as a valid joshing burglaries are only going to make it under a categor statutes that have alternative means of conviction i think they actually use that language so you have alternative elements you can you could present this set of elements to the jury or another set of elements to the jury and if it's not clear from the from this document steps in the conviction which set of elements was involved then you can look at jury instructions to determine whether it was one alternative or the other and that makes sense because something there was maybe a vending machine attached to the building and that's all i did was i broke into that and as his lawyer i tell him what a washington law that counts as breaking into the building so you're guilty of going into the building under those specs so mr smith even had to cop colloquy says yes i went into the building because as i get washington law under the definition of building he did go into the building so the in the information here i understand but again it doesn't tell you what that building is and under the law by saying he went into a building doesn't mean he committed and of a common law burglary under federal law because again the law says even if you went into a fenced area and i think when or actually bought a residence a fenced area he went into the building so his saying i or agreeing that he went to a building doesn't help it doesn't help at all it doesn't tell you whether or not he committed a common one burglary and that's the problem with the way the approach has been these cases it once you start getting think it's contrary to what is what aca says which says it's the conviction that counts not what the person was alleged to have done not even what may they have admitted to doing it's what they were convicted of that is the president and i think that's what  without a constitutional protections and i think that needs to be looked at  i think you know are really the purpose of of the taylor and shepard line of cases that we have when we determine these questions especially in washington where burglary main good a vehicle or something other than a building is that the courts the supreme court has really attempted to narrow down what is the evidence that we can use to look at this i mean how do we determine we can certainly look at nothing and then everything is speculative but what can we look at that's concrete shephard narrowed that down to certain documents and in this case we have the documents that requisite threshold in all three of them we have statements not just alluding to something not just speculating something but concerning th the crime of staffed inside cigarettes beer in a small safe were taken concerning the other one of the other burglaries concerning the daves country store the statement on i entered dave's country store when it was closed to the public with the intent to take property from the store again these are statements by the defendant exactly what he did and terrain or inside the third burglary which was which was a burglary of a restaurant called the red steer in benton county i broke into the red stair and that again into the red s informations concerning this case so it's a very long answer but the response here is that we do have guidance as to what to look for and if and when you see everything in your building the problem is that building is something that your entire oh i think in this case i agreed on i believe in this case it's more of a reference to where those convictions were referenced by the free trial service or the relation officer statements that were on that prior to the last page of the police state referred to as the police statement correct so and i mean the only other way to answer that i would be off the record concerning my conversations with trial counsel but i believe that truly was in the record i believe that i think gleen that the court discussed those statements during the sentencing hearings and with therefore have three zero seven third eleven eighty five it's my circuit case i don't with a slightly different issue but the court noted that in looking making factual inquiries in this case as to the amount involved in a fraud conviction that the court would be divorcing from the conviction requirement their quire ment of the dollar amount that was necessary to make it a predicate offense and i suggest that what this government is asking you to do here is the same thing to do to divorce from the quick wireman of a conviction that all of the additional requirement that it be a common law type burglary and not some other kind of burglary again th says he did but only what he was convicted of but he can't be convicted of those three burglaries unless the actual predicate in the court relies on what he said to convict him something i think so yes the what what's missing in that analysis is the factual finding that someone entered the building is based upon the definition of the building under washington law so accept your argument is there not for purposes of taking a plea because for took purposes the while taking a plea in washington state they don't make need to make that determination so they're probably not going to so that's the problem reviewing something was done in state court under completely different circumstances than when you're looking at this for federal sentencing but for federal sensing i think taylor does require that i think taylor requires that whatever you're looking at