good morning your honor may it please the court michel and as for the appellate parents jones i would like to reserve three minutes for rebuttal i'm going to jump right to the threshold issue in this case which is whether or not mr jones  eighty nine colorado conviction for burglary qualifies as a violent felony under the armed career criminal act if the modified categorical approach is applied the court will find that mr jones pled guilty to burglary of a dwelling looking at the language of that statute within the context of the armed career criminal act i'm criminal act enhances a sentence above the statutory maximum for a felon in possession when a defendant has three prior convictions for a crime of violence the act defines a crime of violence generally as a crime that contains an element of physical force against the person arson extortion out that the biggest distinction between the cases that the government sites and the cases that mr jones cites which is that none of the cases that the government sites are a st twenty to fifty five where a defendant was sentenced in excess of a statutory maximum and that is the defining factor that mr jones is asking the court to find the exception to the general rule that a defendant cannot be actually innocent of a non capital sentence and the court said that the determination of whether the defendant is actually innocent of this sentence is whether there is a missing element of eligibility and arme career criminal act has three elements of innocent of a sentence of death then there's no reason that doesn't logically follow that somebody can also be innocent of a sentence where all of the elements for that sentence which is a legal question not a factual question but if the conviction does not qualify legally then the elements do not exist which means the facts don't exist exist which means they are actually and factually innocent of the arm clear criminal act sentence there's case law that says that the actual innocence exception to whatever whether it's a procedural default or a structural limits whatever its scope doesn't apply to legal determinations so you're kind treading a fine line because as you point out the decision to the question of whether this applies is illegal whether the statute applies is a legal question  but in order for the actual innocence to apply it has to be a fashion which i'm right and i stand your point your honor and my point is that the armchair criminal act the determination of whether his conviction qualifies is a legal determination but if it doesn't qualify then the fact that he has a violent felony conviction doesn't exist that the prior conviction is a fact and therefore he is actually in factually innocent and the question i mean this is clearly an proof and that is that there is not one single case that i could find where on a st federal two thousand two hundred and fifty five so not a state conviction that has a higher degree of comity that needs to be paid attention to but a st twenty  fifty five dollars for a sense where the defendant was statutorily and eligible i can't find one case and if if it would open up the argument so much i think there would be more cases out there making this claim but i can't find a case denying it  honor in the case they talked about the distinction between the death penalty and the th amendment concerns and how there is a higher level of scrutiny that is provided to death penalty cases that sentencing there are certain safeguards that the state has to put in place but i actually think that supports my argument because if you're looking at a death penalty sentence that the finance has already been given all of those extra protections of going through the death penalty sentencing and in addition then you are if it only applies the death penalty sentence says that a defendant who is not actually innocent of murder but is only claiming actual innocence of a death penalty sentence so murder one of the most heinous crimes in our system is getting more leniency on the procedural bar than a defendant who is claiming actual innocence of a sentence who's only been convicted of felony possession of a firearm do you  yes i do think it left it open and the reason is because in that case the defendant had a prior to two thousand and fifty five was just english is that for mr jones case and the defendant marrero was not gustatory and eligible and the court  that is a distinction that might make a difference in a certain case and i believe the distinction is here you're down to about just a little under three do you want to thank you i would like to save my time for a bottle these may it please the court my name is karen vander guy and i'm an assistant u s attorney here in the district of alaska for appellee united states this case is about whether the defendant's objection to enhanced sentence his legal objection will essentially never allow his petition under tw fifty five dollars to be time barred the court should rule for the appellee for two reasons and one is that legal innocence or actual innocence is not as factual innocence and mr jones concedes off about he's not factually innocent of his initial crime under the federal as well as his part conviction from one thousand nine hundred and nine but he's factually innocent of violent felonies is deceased factually innocent generic burglary or do disagree with your honor i disagree i would direct the course attention to the recently decided case that as well as quarrels instead the united states supreme court clarified that generic burglary does encompass vehicles that have been the colorado statute if i'm taking the court's hypothetical here i still think that's not factual innocence i think that's of the going to do just not my question yeah my question is do you agree that he's not been convicted of generic burglary if the court of telling me that's what the court is finding with respect to the overbred the i'm asking you to continue with that assumption you do have to concede that for all time but for this for this question you have  so the question is what i can see that that is a quibble into actual innocence and that's where i disagree well but i'm going step by step i'm asking you a question would you concede that he has not been convicted of generic burglary if i would you're asking you to concede this but i disagree with the court's analysis which is which part of what are you disagreeing of the party i'm asking you to assume but not concede or what it what it what are you disagreeing with if i understand the court correctly the court is asking me to concede and then asking you the question about the he pleaded to the colorado statute therefore under the categorical approach he has not been convicted of a generic felony of a generic burglary are you are you with me so far i'm following your honor ok so i asked you to consider i ask you the question do would you agree that he has not been convicted of a generic burglary if if i if i'm following the courts again i disagree with the course nonsense but if i'm that question is easy the next question is the hard one ok he has not been convicted of generic burglary and because he has not been convicted of generic burglary he doesn't qualify for the pre three prior the factual legal analysis with regard this is what your opponent said i thought fairly in a nuanced and understandable way that whether he whether this is a  generic burglary and therefore counts as the ac a is a legal question but then the next question is does he have three convictions  or only two which would appear to be a fact yes the amount of convictions is a factor but its application is a legal argument under the categorical approach and i think if we if we turn to the eleven circuits guidance in the k they saw exactly why these type of arguments should not be considered actual innocence and that is because the categorical approach as we know is full of ambiguity and what this would do is allow the actual circumstances in which the sit ins would be illegal right the whole problem only applies so that's a fairly narrow band right there right and secondly it would only apply to and this is why i asked you what the limits are of you know i think that's the the interesting or the harder question is what are we talking about exactly i gather it wouldn't it wouldn't apply if somebody comes in and says  this is a sentencing statute doesn't apply to me i mean in other words this provision that's should be interpreted that way should be interviewed some other way so it's a fairly narrow under the th circuits analysis and make a expanding the actual innocence exception to go to these legal determinations about whether or not prior convictions can be considered violent felonies under the category of categorical approach which as the court knows during the this exact conviction ten years ago and two of the judges sitting before me ruled on this defendant sentence and the burglary conviction that enhanced his sentence and so the th circuit says we need to look at the benefits of analogy here when we're talking about legal arguments especially under the categorical approach where opinions are different and it can be ambiguous ambiguous there's got to be we've got of not open this exception this actual innocence an exception to these legal arguments about whether or not a conviction is sufficient but the net result is that this man has been in prison long many years longer than he would be if the proper lower rules are applied i mean your honor if we're if we're taking the court's hypothetical about where they're disagreeing with our analysis about that shit i mean that would be the risk but in this case mr jones argued t the remaining in or having the unlawful lawfully and or remaining in oh it's part of the generic burglary that was mr jones argument at sentencing in from the district court and then in front of this court back in two thousand  he challenged that burger conviction on other grounds and there's a letter in the record also from his attorneys saying that they've decided not to go with the argument we're here in front of today last time they were in front of your honor's and you want to back up and briefly tell us about stith and how it applies and other words to make the archimedes charge me to begin with oh certainly your honor your honor during the pendency of this litigation there have been several cases that have come out talking about generic burglary and in december of last year stitt had a decision about generic burglary that clarified that burglary includes a vehicle that has been adapted of its customarily in customarily used for overnight accommodations the statute at issue here in colorado includes a ship trailer sleeping car airplane or other vehicle or place adapted for overnight accommodations and specifically the class three burglary conviction that mr jones is convicted of is in a dwelling which is defined as being used or intended to be used by a person oh and it doesn't it doesn't have to be intended to be used just has to be used that's the problem that well the definition also was adapted for overnight accommodations in the colorado but as i understand it if somebody sleeps in a car  if it's used for this purpose even though it's not it's a vehicle that is heavy sleeps and that would count even if it's just a plain car your honor i see that i'm coming close to my time but i would like to finish this the thought i agree with your honor and i believe that that should still count under sit and also the follow up case quarrel was just went on said repeatedly adapted for use while coral's which is a follow on case that came out earlier this week from the supreme court says that the court should seizing on state law deviation modest state law deviations regarding this definition because congress intended to include burglary and burglary being doesn't have a potential for violent confrontation that's why it's included in the statute i want to provide the court the reasons why they should find them are rare exception applies in this case and open up that exception and that is there's three interests that are taken into play with an equitable considerations in haiti as cases are finality judicial resources finality interests are weakest when the sentence is not authorized by law which is the case here comity is not an issue here because this was not a state conviction that the court is reviewing and the judicial resources are at minimal interest here because we're not asking for a new trial and we're not asking for the defendant to be to withdraw his plea we're simply asking that he be re sentenced according to the law in addition the two other considerations under launch and a st twenty dollars to fifty five dollars then that violates the house view bell statement which is it has to be a different standard has to be a lower busy standard because that person has not yet had that st bite at the apple this exception is not instant i'm sorry what which is being created for equitable purposes as well essential what we say is because the writ of habeas corpus is an equitable concept in law if the statute of limitations is imposed without any other consideration than it would effect of lee remove the writ entirely and the supreme court has said that it cannot be applied without any other consideration because then it would violate the equitable considerations of the quarrels to sort of anything to do with this i don't think it does your honor because it only applies to entry into whether somebody is entering or remaining and when they form the intent and in that case the court reaffirmed that the the same sentence that was instead and taylor which is what we're looking at is the increased risks risk of violence and there is no increased risk of violence with a vehicle versus a dwelling where somebody lives and there's a higher likelihood of somebody coming into your car run along with high interest and when the only exception from such assumes that we're talking about a car that is used as a dwelling so there is a person well your own or under colorado law a use for habitation does not need to be what the normal word of dwelling is for example a busy hotel i'm sorry a hospital room and a jail cell were both held to be tested but while it should be used to happen to be a person there i disagree that there has to be a person there at the moment if the person had to be there at the moment the statute would say that it would vehicles all ordinary vehicles which is but under colorado law has to be used for have attention right correct but that could mean because habitation can be temporary such as somebody staying in a hotel room who may only be staying there for one night usually without all of their belongings and simply a hospital gown could also be somebody driving their car to college coast to coast and throwing a pillow in the back seat but they have to be there i don't think they need to be present ok