i think we find ourselves in an interesting situation today so i'm not sure how quick questions for me to proceed and i'm prepared to get the argument that i can on mr smith's burglary if the court is prepared to hear it although i think the parties have agree b felony could have been if it was committed with an armed with a deadly weapon right the arms doesn't mean it's a violent crime right right and it was of a dwelling or if it was a dwelling or structure used for religious worship  so what are we talking about whether it's divisible by this point i would actually be more interested in hearing your thoughts on the subject of twenty or if you were right one of you with us and on whether the notion that the burglary statute can be violated by climbing a fence however hypothetical that possibility might be whether that's actually in consistent with federal the federal and florida included the curtilage of the home and james said that florida construed narrowly the curtilage of the home to include an enclosed space and i think that must be read as spencer and said that that inclusion took it outside generic burglary so you're relying on dick to forbid overrule case it really wasn't deciding that issue to conclude that this is playing  the home takes it outside of generic berkery and i think other court in cincinnati in james in it you know it said that include that that that florida construed curtilage narrowly to include an enclosed space which in drawing and indiana says to and means a building structure or other enclosed space permanent or temporary movable or fixed that is a person's home or place of plotting ok but this is a separate statute it's not a subsection of the statute that we instructions include the only thing that's necessary to find that it was the be found me and not the c follow me it's just the addition of the fact that it was a drawing so nothing changes as far as building or structure and we know by statute  indiana includes dwelling means building structure other enclosed space permanent or temporary movable vexed that is not visible the jury must not find anything according to what play and what the place looked like and there in fact there's a case in indiana that indicates without deciding that a car could fall into that statue if it's because what's the issue in those cases when i started looking at this well in cases what's the issue there is primarily case after case with the person residing there we want to now look back and see if this person was convicted of indiana burglary of a dwelling does that fall within the generic offense or does it or does it not and i think the way that indiana defines dwelling that that if a person commits a burglary of a home why does it matter if that the statute the fines burglary to include well br r breaking into a matter what the scope of the statute is if it clearly includes breaking into a home i mean that's what the defendant is charged with and i'm not sure if you ask me what you're asking me is policy based illegal even though you there's nobody in the house reality that's that's our problem but even though we can't reject the categorical approach we are faced with the problem here of playing there are right and one of the elements of pla error is whether the decision seriously affects the fairness integrity or public reputation of judicial proceedings and so where the defendant actually burglar residence a residential structure and stole a state a safe with a firearm and valuables in it why should this hypothetical raise the concern about the fairness integrity of public education of these proceedings i would think the argument would run the other way that we would be the reversing here would be hypertechnical and because i think that what he's what mr raising at this point under these buying of cases from the supreme court whether we agree with them or not and i carry sometimes and i think the government pointed out in their brief and we're talking about see that we're reaching the sort of that sarat result where we're striking down again and sure why should we y question and congress made very clear it wanted residential burglars to be treated as armed career criminals right yes very violent they're very dangerous offenses but i think that that's the best i can say is that the statute that mr money was convicted under and doesn't doesn't fall in the category of cases that we want to punish as i'm here criminals now and i see that my time has expired i would love to address these questions on additional briefing if the court will accept and i would be very interested in your thoughts beyond this indirect dicta in dreams about why an enclosed fence hypothetical would be your honor may please the court bob would we have the government i to i'm sorry for my part in the screw up of the briefing here and take responsibility for that i'd like to start i've ever the court would like you to start of first off i don't think there's any indication that a car would be covered i have no problem of course with your honor's view of its effect on this case especially given the standard of review but that case i think if she's referring to mccormack the state that's from a previous statute that in indiana that included vehicles and the statute didn't include vehicles if there's another case i may be wrong but also if the question becomes in this case whether the burglary is divisible the government's position is that if it is divisible the structure of the statute is that it indicates that the use of deadly weapon or being armed sorry being armed with a deadly weapon  no i don't think so ok then then it's not divisible those are alternative means of committing a single offense and you can't use this as a predicate and that's the short answer under ma has been reorganized to place different put to put different punishments on these different types of crimes so there was a complete recount of a cation of indiana criminal law in two thousand and fourteen felonies and so on were completely redone and anybody looking at this kind of issue in indiana has got a go back to the old statutes right yes and the even the nomenclature than simply entering it welling the religious institution piece is not part of the same level as the welling anymore but again in two thousand and three two thousand two into those three it was different statute so i understand limitations of that reading back but the kind of cation that your honor mentioned does at least shed some light on the view that these are different elements the old statute the one that was in effect when mr committed to this burglary does require breaking and entering a building or structure with intent to commit a felony which tracks the taylor definition yes and anybody sorry to that you have any thoughts on the fence issue fences under indiana law under the statute if fences are looted they have to be enclosed space it they don't have to have a roof they don't have to have a roof in fact of a fence had a roof would be a building in the world structure would be meaningless in the statute and would write it out of this read out of any definition whether you're talking about taylor's definition the model penal codes definition most states definitions or any end of definition if you put a roof on a fence it's no longer necessary to use the word structure you can just call it a building matter because if it's not if the if the old b statute be felony statute is not divisible then we're back to the building and restructure issue right and i said wrong i was headed that way your are the structure the statute is it has to be a building or structure that's where c is defined and then you go down to the narrower points of the statue to get to elevated to the status but the building or structure overlay does not get removed so you still have to tent is just the tent is the tent held up by poles and fully open like a revival tent for religious worship where anyone can enter and exit as they please i think probably not  that's probably not a structure under the definition which includes only enclosed spaces but a tent like a t v or a yurt or a camping ten possibly depending upon whether it was a person's place of watching because of course that is also part of the definition we can be reasonably confident that fifty forty two crittendon avenue was a pretty solid structure or could guess and the charging instrument prosecution in indiana is this is the act of breaking and entering it's not that different that's correct suggesting that only one crime can be charged for a single act of breaking and entering no matter how many of the some parts of the statute are satisfied based on what the structure is used for and what it looks like and what it whatever shirt and matter how many of those things are present one crime under the statute as written relevant to this time period even no one crime you you can't use it well what do you do though it's one crime but what do you do for example if it's i'm just going to rewrite this a little bit hypothetically but if it's a burglary is  c felony generically but it's a b felony if it's a residence if that's the only difference if that's the only way to make it a b felony then that's a b felony conviction would satisfy what's the rationale for all of this form over substance i would have to say that i'm sympathetic court's view that reality would congresses and intents and in a string of cases and working through the categorical probes the supreme court indicated its belief that congress wanted something like a categorical approach to apply and what congress wants is meaningful because it focuses the statute focuses on how to classify the conviction not what the defendant actually did write that that that we value eight under thirty five fifty three sure and so it all comes and it just depends on you know what point in the process and how much weight it gets mandatory might discretionary w guess i would make one small note which is that the case that i was referring to it did drop a footnote and was actually referring to the burglary statue at issue here