first criminal act to provide for the grand jury indictment and trial rights with regards to the prior convictions and there are several layers to that argument these two thirds of course one of the briefs argues that's quite aside from those those arguments that in this case under the straight taylor analysis that the convictions in this case  couple for a couple of reasons first they argue that the court did not rely on the definition of building when doing their analysis and so it really hasn't been litigated and so that the narrow holding of those cases may simply be that those cases involve further research in eric buildings and secondly there's there's been a wealth of litigation since then including on bank opinions not with regard to organ for greed but with regard to tailor analysis that other california statutes but the analysis should be the same and you really have to compare all the elements and if there's if there's anything that doesn't match then you have to go to the modified categorical approach the third reason is that i would s and vehicles and other things that don't match the taylor national generic burglary aren't cannot be used as are for criminal predicates and the organ statute provides clearly  for let me reach of the definition of filtering building in addition to its ordinary meaning includes any booth vehicle both aircraft or other structure adapted for overnight a dation of persons or for carrying on business there if i had some definition of saying we don't just mean building a nice ordinary sense we mean all these other things so i think why why is that unconstitutional people sleep in those other two hundred thousand dollars ruling houses that you see blocking the freeway oldtime we're not arguing that it's unconstitutional we're arguing this matter statutory construction and under taylor and  what kind of a burglary this was you know i'm suggesting that the that the supreme court has allowed the lower courts to look at very very specific things restricted and tr court my name is tom gannon from the criminal division we're in this case it's the request of the united states attorney for martin it seems to me that mr jacobson described this area of the law as as fluid i  think that's perhaps an overstatement i think i'm doris torres remains good law and i think sheppard confirms that it remains good law but undoubtedly people have expressed concerns  in shepherd itself justice thomas wrote partly dissenting opinion saying we ought to overrule on the darst for us but the fact is the court has been invited on many occasions to overrule commodores taurus and has not done it and therefore at the present time it's clear that a sentencing judge can determine the nature of a prior conviction and in this case what shepherd did and we think shepherd cuts in our favor in this case what the court said oh modified categorical approach and that's what shepard is talking about the modified categorical approach a district judge instancing out of your career criminal act can look at the judgment and the charging papers and let's go and i mean suppose extent that that the oregon statutes because of the definition of building are broader than the generic burglary crime then you can look at the charging documents to respond that and that's that is the exact approach that the of a portion of it but it's one page five of the west logs version of this case was of some interest because i worked on the brief for the united states we did not prevail so it was but it was a matter of some interest but what justice souter says is the detail a generically limited charging document would do in any sort of case and that's tell you what the defendant pleaded guilty to that's what it says that but then it's your order if you read to the end of that last sentence it says just as the details of a generically limited charging document would do in any sort of case and that's what we're talking about here limited charging document that shows that regardless of what the at oregon statutes you know that the building definition in the oregon statutory scheme might have said here was with the charging documents and there laid out at pages one forty is the what the charging document does in the context of a non generic statute when it spells out that this is in fact a generic burglary that's being charged that's what it means to say generically limited charging document the terms of the charging document the terms of a plea agreement the transcript of a colloquy between the judge and the friend in which the factual basis was confirmed but we didn't need to do that here because we had the charging document we had the judge these other things if they were missing they could you know police reports complaint applications that's too far we can't go that far but they say that these matters can be considered and they were properly considered fights judge jones here when he said it's mr mr smith and mr swift got a got a significant break you got a fifty five month departure here because of one of the qualifying convictions looked like it was a staged robbery and not an actual robbery was the court want to hear about the detention  statute as a building and so we have the same problem is that if we can't tell generically from the charging document if the case is relied on by the government to say that these trucking documents and judgments can be used something about that that might help my case but i don't say that the that the supreme court should use the doctrine of constitutional constitutional doubt or constitutional avoidance because of the terrible problems of constitutionality