section twenty two fifty five mr walker's twenty two fifty five motion sounds and johnson and so that it provides a basis for a leap there's no united mathis to get relief and mathis is not resurrected i don't think so let me explain why the government's already conceded that mr walker's burglary convictions are and are not a violent felony because they're inhabitable structure ones that this only pertain to the divisibility of the statute right so regardless of how this court decides the nailer issue right it doesn't implicate this crime now if you're a burglar of the building convictions than maybe but mathis has no bearing on this case i would argue because whether it's mathis for that reason do we know from the record at the original sentencing what the district court relied on into terminating those were violent felonies which which clause i don't think so your honor to my knowledge i don't think that the record makes that clear although what i pointed out in a rule twenty eight trade letter on direct appeal what i think is the best evidence as to why his convictions will rest on the residual clause is the government's  brief and that was in case the zero five dash three three four nine in this appeal the government argues that johnson had no effect on princes like burglary which did not require the residual clause to allow them to qualify as a c c a predicates but that's drec rely on the residual clause to conclude that there are qualifying predicate offenses so that i think the government's two thousand and six proof demonstrates that it's not until johnson voided the residual clause that mr walker's claim accrued as not building convictions i think the government's conceded that and i think the moment when when was because because it when it at the time of the conviction and the initial appeal and maybe the twenty to fifty five if you're if it's and they can't also it's not retroactive so if the only way you can get after these as it's not being generic burglary is by the way by the camp matheson alice and send them an empty  of course i think this is johnson claim so under twenty two fifty five h two rely on quote a new rule of constitutional law made retroactive cases on collateral view by the supreme court but more importantly the government is i think burglary case right but we all know mathis and the comp and taylor but they don't know that they were matches doesn't help if if this if there were generic burglary options and and nobody nobody went through the went through the  the exercise because of the residual call that how i don't see where matt johnson by itself doesn't get you success of paper if the records not there to do it that's my problem with this it's a finale perhaps but i understand your point i think there's some other issues we raise to so i don't want to belabor it but i i think there's two other issues since my time's running out that i think we need a hammer i need to hammer on as mr walker's counsel is that first you never waiver right to review a sentence in excess of the statute because it's in a legal statute or legal sentence rather and that's the i think the government has noted that causing prejudice can in theory exist to excuse it and i think there is causing prejudice here in defining what caused it as the read be ross case a supreme court case that i  constitutional claim is not recently available when a decision may overturn a longstanding and widespread practice to which this court has not spoken but which is near unanimous body of lower court authority has expressly approved the court goes on and says when the new rule is given retroactive application there almost certainly have been no reasonable basis upon which it could have been raised i think that's exact situation we're in here with the residual clause circuit courts throughout the nation at the time that he was sent right i think those are also hopeful cases and i think they also established that cause that the circuit courts were in unanimous agreement the residual cause was not the way and so when that case was handed down by the supreme court i think you have a sea change in the law and under the broom's case eighth circuit case a panel this court held that quote cause may be satisfied when a claim is so novel that its legal basis is not reasonably available to counsel at the time of the appeal end quote and i think that's at the this case i think also prejudice has been savaged here i don't think the government disputes that that there's a reasonable probability that without the error mr walker sentence would have been different his guidelines level would have been drastically different more he's looking at approximately less than one hundred months there's no other questions i'd like to reserve a little bit of time for a bottle case after johnson the first or the second section twenty five before johnston but the second second twenty two fifty five thousand john johnson is johnson given the do or don't johnny does not give them a do over with regard to if it's burglary convictions under missouri law is overly broad under taylor for bribery in a second degree with regard to the habit of structure yes ok so so you've got the government in order to get a generic burglary a c c a predicate has to meet needs some some shepherd documents right yes to be able to prove we have do we have those here i gather we don't know we do not we do the point where it has to as to prove generic burglary undershaft so that seems to me to be the problem here yes but if we don't if the government never proved never never put in its modified burglary now we if we don't have that here because we don't know if it was a bill well a we don't know do we know who was building versus inevitable structure b if it was inhabitable structured we know what was it was it up a building right there what was made right so not now so we don't have we don't have the record that that would permit this to go forward after johnson and before matthew wright there's no record th could raise the issue it's not just it's not just anticipating johnson if it's not raising the issue when before johnson everybody knew fifty five and there is a hurdle there that he this must be a new rule of constitutional law what about our case law that sort of said well even if well whether it's cantrell or there may be some cases before that said we don't have to determine whether this is a burglary because it's going to fall within the residual clause does that affect our analysis that that in the way that this court in district courts approached it that this was going to fall within residual c commercial building and that's where you used the commercial paul walker his underlying prior burden reconviction were all regarding inhabited structures therefore it would have been would a fall under the  counsel that there's nothing in this record telling us what the district court did at the time of sentencing which caused it relied on that is correct your honor that is correct whatever take your honor i want i meant my government's concession and i'll turn to page eight i think it was just the type of conviction was what i was trying to refer to and they sent a very page eight it goes in the page nine burglaries in the happily structur johnson validated and so i think what's troubling it a fundamental level or so here he was sentenced to two hundred ninety three months that's a colossal sentence when you think if we were to do it all over again the likelihood of him getting th status now he doesn't he didn't make the identical argument he raises today but he raised it is a six minute claim he cited to a pretty he cited to shepard he did his best and i think that gets him within the