court and among other things he served his chief judge of that court and has sat with us before and as often say a fledged and fully argument is that this type of indictment error falls under this court's me come line of indictment your cases and not under the cotton mere omission of an element line of cases our fallback argument of course is under the plain error standard the government has conceded that the errors are plain they have at least conceded that the trial and guilty plea errors are playing with respect to the indictment this court has previously held that the omission of an element in a not in an indictment is forgivable where the correct statute is cited in the indictment or where the indictment tracks the language of the correct statute the indictment in this case did neither of those things with respect to a fair or at trial there was no evidence presented at trial in this case from which knowledge can be inferred now the government has relied on the old chief stipulation a trial but the old chief stipulation does not tell us anything about the defendant state of mind at the time he possessed the firearm from the old chief stipulation it can at best be in affirm mr mcclellan's convictions on both counts because the statutory maximum will be ten years without the a c s u our nd argument with respect to harmless error is that the a c c a sets the statutory range not merely the guidelines range and so it takes that outside the keen jurisprudence and finally they district court when she stated that alternative sentence she believed the correctly calculated guideline range to be two hundred and sixty two to three hundred and twenty seven months without the a c c in this case the guy lying range would be seventy seven and ninety six months which means that the fifteen year sentence would be more than double the high end of the is with respect to the substantial rights issue on the ready for issue we believe that reid should be limited to what's facts in that case the defendant had testified at trial that he knew he could not possess a firearm and that fact standing alone with sufficient to justify the outcome in the region but also there is no support for the entire record ruling in the  proposition simply don't support the proposition counsel they ask you in terms of where this case stands in the range of many many cases that are extent now that is your argument with respect to hafe really any different from almost anybody who was on appeal from a gun possession charge of th two responses to that st the th circuit has a rather unique line of cases dealing with indictment errors that don't state where the indictment doesn't state a complete offense the other circuits don't have that case law and so decisions from other circuits on the indictment jurisdictional issue are not going to be terribly helpful to this court in resolving that issue my nd response to that question and this relates to substantial rights as to both the trial and the plea convictions is that in this case the government charged one prior conviction in the indictment as the basis for the one hundred and twenty two dollars g charge and that conviction is the only prior conviction the defendant has where he did not serve more than a year but he received an additional sentence an initial suspended sentence to probation he did six months in boot camp but so it is that does that go to a point of of simply whether it's plausible he knew that he was a felon somebody else let's say who was charged and actually did ten years you'd have to say well of course he knew was a felon but when your argument or a colleague argument be you simply can't assume that if no proof was submitted correct the supreme court suggested in raw hafe that that is precisely a scenario in which a defendant might not have knowledge but isn't the problem here i mean we're looking at whether this extensional rights were affected don't we have to look at whether there's evidence that he knew and in this case we know he was in prison for ten years i guess on the same charge well  different charge but the same offense as was charged in the indictment so why doesn't that suffice for the standard is well ability over different result and especially with respect to the trial in this case the fact that the indictment charge that one prior offense in which he did not serve more than a year our position is that the government would have had to have proven his knowledge with respect to that one prior at trial and they inform the defendant of the minimum maximum for taking a plea right buyers actual knowledge of status and just because state law requires the state judge to inform the defendant of the maximum sentence does that mean you actually did yeah but it means there's probably not a substantial likelihood of any prejudice because we have to send it people know and follow judges know and follow the law i mean we've got to say jand saying that so what you're saying is maybe even though the alabama law requires it may be speculating this particular judge for whatever reason didn't follow alabama law well i mean i simply disagree that that the government could have proven it based simply on the fact that alabama law requires it i think requires the government to prove the defendant actually knew yeah but what we're talking here is whether there's a substantial lockley would have a different result had they apply to the senate reasonable then the city now we argue that dwelling within the definition of it which in the st alabama st degree burglary statute incorporates the definition of building such the alabama statute covers structures including any vehicle used or normally used by a person for sleeping with a lot this construction is supported by the plain language of the statutory provisions and by this court commentary a mobile home or house trailer is identified as both a dwelling and a vehicle and in morris vs state the alabama court of criminal appeals published a decision that involved application of the st degree burglary statute to a mobile home now still holds that in order for a vehicle to be covered by generic burglary it has to be adapted or customarily used for remote accommodation because a term any vehicle use ordinary vehicles in the implication was that generic burglary does not cover ordinary vehicles that are being used for overnight accommodation accommodation as opposed to being designed for overnight accommodation that was the thank you and may it please the court briefly the appellant contends in this case that this court in the district court now lacked jurisdiction over the case that's not correct the indictment in this case while potentially that this court has jurisdiction over the case and that the facts in this case fall comfortably within the framework that this court outlined and read and that other courts of appeals have outlined when they have considered similar claims by felons who were in possession of firearms and with that with the court's permission i would turn to the sentencing issues in this case looking st at the issue i think that there are two elements that the court should consider the st being what the alabama burglary statute says and the nd being what the supreme court and what this court has said about burglary statues so alabama's burglary statute it's st degree burglary statute the wanted issue in this case contemplates the burglary of a dwelling the term of the welling is defined in alabama law without meaningful qualification limiting limiting it to overnight accommodations to the places where people live the places where people inhabit now there is this issue where building is also defined in the statute that being said the term building which is what this court our and the term dwelling have never been coextensive the term dwelling has always been substantially more limited than the term building and what the supreme court said instead it is that that matters the court instead built on what the supreme court had said a couple of decades earlier in taylor which is that the definition of burglary while being generic also is contemporary which means that it accounts for the ways in which people live today and living situations quite frankly are a bit different today than they were in the common law burglary statutes are the common law burglary regime which predated many of the modern burglary statues still took that analysis one step further what is your position with respect to whether came can apply under the circumstances you here are respectfully disagree with the defendant's position and that construction of kean i agree is correct  arrive at the ultimate sentence in this case this court must uphold both of the convictions because if only one conviction stood there to be a ten year maximum cap however wants both conviction stand what i read keen so just to be sure i understand your position is it your position then that keane compels this caller to find even in a situation like the one we have here that where the district co clearly states that the sentence would be the same and explains why and it's not substantively unreasonable that we must uphold the sentence regardless to be careful about the use of the word compels i do think there's a not confront the particular issue this court confronts today which is a sentencing issue that is both partially statutory and partly guidelines based however i think the fair reading of the keen courts reasoning as this court has extrapolated on it in subsequent decisions is that it will give effect to the district judge a statement which in this case would mean to remain and limited to the purpose of giving effect to the district judge statement which would be aborting pointless do overs on remained in this case where the district judge was clear as to what she would do if there were a reminder if this court reached a different decision then that is the the outcome that the court would it would is a bit misplaced while it is certainly true that this case what amount to a substantial upward variance from the guidelines range with none of the career of bender items attached to it the district court also departed downward from the defendant's guidelines range with the career offender and handsome and she ultimately imposed a fifteen year statutory minimum in this case and i would suggest that demonstrates in this case that the district judge carefully sentencing transcript in this case where it's also worth noting he demonstrates an awareness of his criminal record and discusses some of his behavior paper with the district court all of that matter was before the district judge sentencing and i think the record in this right one part is whether he whether there's evidence that he knew that he was a felon and the other one is whether there is evidence that he knew that as a felon he cannot possess a gun right is that right so the evidence for the  nd issue it appears comes i mean i guess there's the phone call from the chalice st phone call from the jail but then i guess the rest of it seems like it might come from the sentencing hearing and  i just wanted to get your position on i mean i guess under read your colleagues said that rape is wrong is it your position that would still have to apply what i guess if i could sort of unpack that question at a couple of levels i think for the rat and it's in keeping with the decisions that other circuits have reached on this issue and that it makes logical sense for the court to consider the whole record so i want to make sure that i have a full throated defense out there to the whole rare indeed the if we if the court did it differently it would actually flip the analysis on its head those defendants where the evidence is so strong that the issue is virtually uncontested would have strong ray how you've claims because the evidence wasn't introduced at trial and the reason it wasn't introduced at trial was because the evidence was overwhelming that's why this court looks to the full record is because the full record gives this court oh more or less much of what actually was before arias during the district court proceedings and here we know what was before the parties was a strong record of his felony convictions indeed by my recollection the defendant's attorney reference that at the in his opening statement at the trial that he was attempting to focus the jury only what mattered in this case which was the knowing possession element by stipulating it old chief that being said it certainly is true that this court has suggested that it can look to the stipulation i mean it certainly allows a potential inference that he was aware of his conduct as i heard defense counsel to acknowledge to this quarter to a large amount today it certainly is evidence that he knew at the time he stipulated to the conviction and so that may well support an inference that he was aware of his criminal conduct but i do want to be clear that it's the united states position that this court should not look just at the trial record indeed if it did that those very closely to it almost invited error sort of analysis where bod then that could exclude evidence on a particular matter at trial and then argue on appeal that the that essentially they should that this court should give effect to that lack of evidence and the record excluded evidence partner how could the defendant exclude the evidence if the united states did not want to defend it to exclude the evidence as i understand old chief by stipulating to a spell and a conviction at the time limited our ability to introduce that that evidence into the record because it simply wasn't relevant to the other issues in the case as i read the trial getting confused about is post right that's correct that analysis has now changed the defendant couldn't exclude the evidence just by stipulating to his invention is that is that one of the question i wanted to ask just for background is this case is then there are many in the interim trial before rather a hyphen and now here we are what's the u s attorney doing going forward that is in every one of these cases now are you putting on what kind of evidence are you putting on to to show knowledge and does it mean that all chief stipulations are now undermined or were not permitted because you want you you know you have to be able to get some of that in to show his knowledge and so what's happening in the real court or in the real world the short answer is i'm not entirely sure to be careful not to speak with too broadly with too broad a brush to sort of tried to give that a meaningful answer i think the right hordes contemplated that each of the prongs that section one hundred and twenty two are different as a practical matter i don't  had a particularly profound impact on felon in possession convictions i suspect and mr rogers a bit more of an expert on this then but i suspect what's happening is stipulations rather than prove to the jury this guy's been sentenced to twenty years before he would step including the stipulation he's been sentenced for a felony and he knew it was a felony evidence that the united states would use to prove their knowledge of status is the very type of evidence that they have long sought to exclude namely the evidence surrounding their often significant criminal conviction history because that's exactly the type of history that on at least nine hundred and twenty two dollars g one the united states is going to rely on to establish to establish a particularly by a lation so to sort of begin to up the issues in this case there alternately two convictions there was a conviction by a jury at trial and there was a guilty plea on the nd the united states position both for the reasons that it is expressed today and the reasons articulated in the br both of these convictions stand and this court has jurisdiction over the case once this court gets to the sentencing issue it can affirm or essentially a reach the ultimate sentence in two ways it can decide the aca issue it and give the district courts in this circuit guidance on how state applies in the light of these burglary statues alternatively the court also can apply the can analysis in this case and extend king to these circumstances and minutes can't start by asking you about the radio issue if you don't we i mean i guess i have two questions the st one is do you agree that reid says that under reid we would consider the testimony at the sentencing hearing i read read does not sure read meant to imply that i can't really say that would be a there was testimony by the defendant in read where it was he read a justification defense to the one we need to charge in that case where he testified that he knew he was not supposed to possess a firearm that fact which was at trial was not a citizen testimony as trial testimony was sufficient standing alone to justify the outcome and read i think read was rightly decided just its reasoning went astray so here's the problem might because we have case law that says when the reasoning when when the reasoning behind a case is what compels its outcome then we're down to follow that reasoning in later case so do you want to address that the thorny issue for the court you know i read i'm certain a rehearing was just and i don't read last week i'm certain the lawyers and reid will take that issue to the supreme court maybe the supreme court will take that issue up on that's the sort of history the supreme court tends to be interested in and certainly if this court follows a read we're all going to be taking that issue to the supreme court what is your best argument for why it should not why we should not consider testimony at the time of the sentencing and i do think with respect to the trial conviction under von you can consider evidence that sentencing in a guilty plea case but with respect to a trial it just simply doesn't make logical sense to because that really the question in a trial case is whether the district court should have granted the motion for judgment of acquittal how can you say that the district court could have considered what hasn't happened yet at sentencing you know order to determine whether he should have you know granted the judgment of acquittal it just doesn't make logical sense if i could briefly address the key issue here keene is a uniquely guidelines case keen holds that when there's an alternative sentence the court doesn't even address the guidelines issue presented in the case that just reviews for substance of reasonableness should not be expanded outside of the guidelines we have a harmless error standard that applies in other contexts and that is you know i'm not sure that helped my client in this case but just as a matter of it was actually purity is the norm with their standard that should apply sweet taken under submission where publicly discussed they defended his claiming ineffective assistance of the guilt stage which of course requires a prejudice showing but then at the