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Quarles v. United States

Oral argument transcript · No. 17-778 · October Term 2018 · argued April 24, 2019 · the respondent won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

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From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We'll hear argument first this morning in Case 17-778, Quarles versus United States. Mr. Marwell. ORAL ARGUMENT OF JEREMY C. MARWELL ON BEHALF OF THE PETITIONER

Jeremy C. Marwell: Mr. Chief Justice, and may it please the Court: For centuries, the essence of burglary has been punishing those who trespass for the purpose of committing a crime. That was the rule at common law. It remained the majority view at the time of ACCA and Taylor. For two main reasons, the Court should confirm that generic burglary retains that traditional requirement of contemporaneous intent, intent at the time of the initial trespass. First, the sources that matter under Taylor show that "remaining in" was understood as a modest expansion of the traditional offense to cover those who entered lawfully, but then overstay their welcome to commit a crime. (202) 628-4888 1 But the government reads Taylor's use of that one word, "remaining in", as a sharp break from that tradition. Under that view, "remaining" would cover anyone who enters unlawfully, regardless of whether they had that burglarious intent at the time of entry as long as the intent was formed later. And nothing in Taylor or the sources that existed at the time of ACCA suggest an intention or acknowledgment of making such a dramatic change.

Justice Ginsburg: Well, something -- something in Taylor tugs the other way; that is, Taylor said that there would be few statutes that were broader than the generic, and even in, what, 1986, there were more than a few statutes that are like the statute before us.

Jeremy C. Marwell: Yes, Justice Ginsburg. The government claims there were six statutes as of -- or six states as of 1986 that had defined remaining-in burglary more broadly than -- than our definition. I think that's well below the threshold. And, in fact, Taylor contemplated that there would be a few. It gave the example of California, in which (202) 628-4888 1 shoplifting qualified as burglary.

Justice Ginsburg: I thought --

Jeremy C. Marwell: So --

Justice Ginsburg: -- it was higher? I thought it was somewhere between nine and 14?

Jeremy C. Marwell: Well, the -- the government claims six statutes. There were 29 statutes as of -- 29 jurisdictions as of 1986 that had remaining-in variants, but I think when you -- when you look at how the states had interpreted those and -- and in some cases, at the plain language of the statutes, I think the best reading of where those states were -- it shows that a majority, even of the remaining-in stat -- states, retained the traditional requirement of contemporaneous --

Justice Alito: Well --

Jeremy C. Marwell: -- intent.

Justice Alito: -- if we look at the statutes in existence in 1986, and we count only those in which there is a judicial opinion interpreting the statute on the remaining-in question, and not those which contain dicta in cases involving -- where the -- where there was an intent at the time of entry, what is the (202) 628-4888 1 breakdown?

Jeremy C. Marwell: Well, as you know, we -- we think you should not only look --

Justice Alito: I know.

Jeremy C. Marwell: -- at the remaining --

Justice Alito: You think we should look more broadly. You want us to count all the statutes in which there is no remaining-in burglary to start out with.

Jeremy C. Marwell: Correct --

Justice Alito: Okay.

Jeremy C. Marwell: -- be -- because Taylor refers -- Taylor instructs to look at how a majority of states define burglary, and --

Justice Alito: Well, we know that Taylor -- that Taylor's definition of burglary includes "remaining in," does it not?

Jeremy C. Marwell: Correct. And --

Justice Alito: All right. So then why would we look at the -- the statutes that don't have any remaining-in element at all?

Jeremy C. Marwell: Because the 22 jurisdictions that had just entry burglary show a widespread adherence to that traditional rule, that you needed intent at the time of (202) 628-4888 1 entry. And the government's rule, the government's interpretation of the Taylor test takes that away because they say, if you enter unlawfully without any intent at the time and you form intent later, that's burglary. And that's not consistent. That's much broader than the 22 entry states. But I think -- if -- if I can respond to the question about just looking at the 29.

Justice Alito: Right.

Jeremy C. Marwell: There are states like Alaska, which has the Arabie decision from 1985; New York, which has the Licata decision from 1971; Connecticut, which has the Belton decision from 1983, where the court said that "remaining in" applies to a lawful entry followed by a subsequent formation of intent. And I take the point that may not be 100 percent on point with the question, but we think it forecloses the government's reading, again, because they -- that preserves the requirement of intent at initial unlawful entry. There are also some statutes, Justice Alito, where the plain language of the statute, (202) 628-4888 1 we think, supports our view. Maine had a statutory sentencing provision that said you can be punished not only for burglary but also for the offense that you commit after entering or remaining. Maine had that entry or remaining statute.

Justice Kagan: And I guess what strikes me, Mr. Marwell, is that the distinction just wasn't -- you know, it wasn't really present at that time, that -- that -- that now we can look and see how there really is a split on this question, but in 1986, there were so few cases or -- or statutes that clearly made the distinction and put a state on one side or the other of it. And if that's the case, if the distinction wasn't salient, why would we assume that Congress meant to incorporate it into the burglary element?

Jeremy C. Marwell: Well, I -- I think the Court typically interprets statutes to assume some degree of continuity with what had come before, and here Taylor acknowledged the common law rule. And we have a number of authorities that suggest that this contemporaneous intent (202) 628-4888 1 requirement was -- was the essential thing that differentiated burglary from trespass.

Justice Sotomayor: What do you do with the "surreptitiously" definition that was in existence before 1986? How does that inform our analysis?

Jeremy C. Marwell: So the Court said in Taylor that it -- it was adopting a definition that was very close to the 1984 statute, which had the surreptitious. I think surreptitious helps us. It certainly indicates that remaining was not a continuous state in the sense that the government says it was. And I think "surreptitiously," as our amicus explains, has a connotation of doing something for a -- for -- for a fraudulent reason or staying -- staying past your welcome for the purpose of committing a crime.

Justice Sotomayor: Justice Alito asked you what the lineup was of states that read it your way and the states that read it the government's way. You mentioned at least three or four that predated 1986 that read it your way. At 1986, how many states had opined in (202) 628-4888 1 the government -- in the government's way?

Jeremy C. Marwell: The government has five where there were judicial decisions in Texas, which adopted a slightly different statutory language that made clear that it was covering anyone who was present in and then committed. I think -- in our blue brief we -- we cited 15 jurisdictions, 15 of the 29, but I think, again, if -- if we look at the entry states, that gets us 22 as of 1986. And then we get over the -- the hurdle of Taylor --

Justice Sotomayor: Well that's --

Jeremy C. Marwell: -- which is --

Justice Sotomayor: -- 15 is a -- is a third of -- not quite a third, a little less than a third, of the states. Isn't that enough to say that that's what Congress had in mind? If Taylor says only a few would be excluded by its definition, that's a lot more than a few.

Jeremy C. Marwell: Well, we -- Taylor says you're trying to craft a generic burglary definition that aligns with how most states viewed it, viewed burglary, at the time. And we think most states viewed burglary in -- in our way. (202) 628-4888 1 And so the government has a different reading. If you adopt our rule, that it -- it will exclude six jurisdictions as of 1986. And I think that's below the threshold that the Court has -- has declined to read a statute in a way that might exclude ten jurisdictions.

Justice Sotomayor: So I'm sorry, what was the 15 you were talking about?

Jeremy C. Marwell: Fifteen are jurisdictions that read "remaining" in our way.

Justice Sotomayor: Oh, I'm sorry, I -- that's not the question I asked.

Jeremy C. Marwell: Oh, I'm sorry.

Justice Sotomayor: As of 1986, how many jurisdictions read it the government's way?

Jeremy C. Marwell: Six.

Justice Sotomayor: Six.

Jeremy C. Marwell: Five -- five using intermediate, mostly intermediate state court decisions, and one was Texas.

Justice Sotomayor: What has -- how -- how large has that number grown since 1986?

Jeremy C. Marwell: So the government cites 18 jurisdictions today. But we think this (202) 628-4888 1 Court's decision in Castleman and Stokeling looks -- when it asks the question of how many jurisdictions would be excluded, is looking to the time that Congress adopted the statute. And I think that makes sense. Otherwise you are interpreting the word "burglary" in ACCA in 1986 to expand potentially in the future without any further congressional action. And that's why I think in Stokeling and Castleman the Court said we're looking to how many jurisdictions would be excluded as of 1986.

Justice Kavanaugh: The -- the LaFave treatise at -- at the time said, "far more common today is the burglary statute which covers one who either enters or remains in the premises. This means, of course, that the requisite intent to commit a crime within need only exist at the time the defendant unlawfully remained within." So how do you respond to that --

Jeremy C. Marwell: So the --

Justice Kavanaugh: -- contemporaneous evaluation of the law? (202) 628-4888

Jeremy C. Marwell: So I think that language could -- could support our rule or the government's rule, potentially, but if you look at the rest of what LaFave said, LaFave --

Justice Kavanaugh: Well, let's just stick with that --

Jeremy C. Marwell: Okay.

Justice Kavanaugh: -- sentence. How could it -- it said the intent "need only exist at the time the defendant unlawfully remained within."

Jeremy C. Marwell: And -- and we think that "remaining within" refers to that point where somebody overstays their welcome. And I think you can see that by how LaFave discussed the other remaining-in statutes. They said -- the LaFave treatise said, for instance, it gave one example of what the remaining statutes were intended to do and it's the classic bank customer who comes into the bank while the bank is open and then stays on to steal the bank's money. That, I think, is the -- is the classic example of what states were trying to get at when they added the words "remaining." (202) 628-4888 1 But LaFave then talked about the Texas statute and said Texas has a different -- different words in its statute and it says, if you are present in and you commit a crime, then that's -- that -- that counts as burglary in Texas. And LaFave said that's -- that was intended to fix potential concerns about proof that would exist in the remaining jurisdictions.

Justice Breyer: Is there any reason to think that the person who stays in the bank, and then, ah, what a nice idea, I'll help myself to some money, is any the less violent or at risk of violence or risk of -- is there any less risk there than when he gets the idea of going into the bank two weeks earlier?

Jeremy C. Marwell: Yes. I think the -- the -- the existence of pre-formed intent, so somebody who comes to the bank with the advance plan to commit another crime shows that they will be more resolute in their desire to accomplish that crime. It may result in them bringing a weapon because they know they're going to do (202) 628-4888 1 that. And I think it aligns with this -- with the fact that ACCA is governing career criminals, trying to select people who have that profit motive to do multiple crimes. And you look at the fact patterns of the cases that are really the point of disagreement between us and the government, you know, Gaines from the New York Court of Appeals, a homeless person who breaks into a warehouse to get out of the cold, while he's in there decides to grab a jacket and is caught coming out, or the case of young people who break into a house not -- not intending to steal something -- this is the JNS case from Oregon -- take something while they're in there and caught on the way out.

Justice Breyer: There are --

Justice Kagan: Part of --

Justice Breyer: -- no -- no people who think, well, I want to rob this bank, I'm a little worried about the noise if I break in, or I guess, I want to rob this bank, he thinks it when he's inside. A night watchman, a teller who forgot to go out -- I don't know if that exists, but I (202) 628-4888 1 can't quite figure out -- I'm sure there is some cases both ways, I would think.

Jeremy C. Marwell: So --

Justice Breyer: Anybody ever look at that and --

Jeremy C. Marwell: Well, so Taylor, just -- just to -- Taylor referred to the risk of violence when somebody does an intrusion to commit a crime. And I think that's -- that captures this idea of --

Justice Breyer: Right.

Jeremy C. Marwell: -- of why we care about pre-formed intent.

Justice Kagan: But -- but part of our understanding of why burglary is a -- is a risky crime is when the burglar meets somebody else, the victim, the police officer, whoever. And that person is not going to know when the criminal formed his intent.

Jeremy C. Marwell: That -- that's correct. But two -- two points, Justice Kagan: One, it's -- the government's position comes very close to saying that any time you are present somewhere where you're not supposed to be, there's that risk of a violent confrontation. (202) 628-4888 1 And Congress did not use the word "trespass" in ACCA. It could have enumerated trespass. I think the government's position comes close to that. And then, second, I -- I do think there is, you know, a distinction from the -- from the victim or the property owner's perspective of somebody who comes having pre-formed the intent to do something else as opposed to the innocent rationales of somebody who's trespassing for -- by assumption for -- for doing something other than committing a crime.

Justice Alito: Is the offense we're concerned with here, his third degree home invasion conviction in Michigan, anything like these cases that you've just described? In that case, as I understand it, he assaulted his girlfriend and then -- and this is what the judge said as the factual basis for his no contest plea -- "The victim reported that Mr. Quarles broke in through a screen window and assaulted her while in the house." And the judge said, "We certainly can infer that he had an intent to commit an (202) 628-4888 1 assault while he was entering." And this establishes that he did commit an assault while he was in the house.

Jeremy C. Marwell: So the -- the facts that you've recited, Justice Alito, I think would not be available to a sentencing court. That was a colloquy in the state court where Mr. Quarles pleaded no contest. So he was not asked to confirm those facts. And I think that --

Justice Alito: Well, doesn't -- doesn't the judge, in order to accept a no contest plea, have to establish, be satisfied that there is a factual basis for the plea?

Jeremy C. Marwell: I think -- well, in Michigan law, no contest is -- is -- is acquiescing in the imposition of punishment but not confirming or denying the facts. And I think under --

Justice Alito: So the judge doesn't have to be satisfied -- we'll check it out. Under Michigan law -- this is surprising to me -- a judge can accept a non -- a no contest plea without ascertaining that there is a factual basis for the plea? (202) 628-4888

Jeremy C. Marwell: Even if so, I think under this Court -- the way this Court said in Shepard and Mathis, the kinds of facts that are available to the sentencing judge, those are limited to ones where the defendant confirmed the accuracy. But I think under, under the Court's categorical approach, what matters is the text of the Michigan statute, which is very broad. It's as broad as that Texas statute because it says any time you're present in and you -- and you commit. And if there's a concern about whether the question presented is presented, the government didn't raise that in its brief in opposition. And the Sixth Circuit very clearly engaged with the question of what "remaining in" means.

Justice Kavanaugh: Taylor didn't say that the statute had to exactly correspond to generic burglary. It said "substantially corresponds"?

Jeremy C. Marwell: That -- that's right. But we think that the -- the -- the -- the element here of contemporaneous intent is (202) 628-4888 1 what's been called the most fundamental essence of burglary. So I think substantial -- it's hard to say that it substantially corresponds if it's missing, you know, the core element.

Justice Ginsburg: When you gave the number six, did that exclude all the states with remaining-in statutes that had not interpreted those statutes?

Jeremy C. Marwell: That's correct. Well, the -- the number six, I think, was how many states at the time of ACCA had -- had clearly adopted the government's reading. And the government says -- identifies only six. We think the other jurisdictions are most fairly read to have adopted our rule, especially when viewed in light of the background interpretive principles, that you're going to assume a degree of continuity and you're going to not assume that the states had completely reconfigured the offense of burglary just by adding a word "remaining."

Justice Ginsburg: Did that turn out to be the case, states that had remaining-in statutes in 1986 and then interpreted them (202) 628-4888 1 later?

Jeremy C. Marwell: Well, some jurisdictions have gone towards the government's view. The government identifies 18 as of today. There are some jurisdictions that have adopted our view, and 19 jurisdictions that have not adopted any remaining-in variant and have stayed only defining burglary as intent at entry. So --

Justice Sotomayor: Give me the count again?

Jeremy C. Marwell: So if the question is what's the headcount today?

Justice Sotomayor: Yes.

Jeremy C. Marwell: Nineteen states retain the intent at entry, so entry only. Three states have remaining statutes and they have adopted our rule. Eighteen states, the government has identified today as adopting their rule. And I think that leaves 11, that gets us to 51 jurisdictions, where the government implicitly says they haven't resolved the question.

Justice Kagan: The -- the 18 states (202) 628-4888 1 that the government says have their rule, do they have other burglary statutes or would we be essentially removing the only burglary statutes of those states?

Jeremy C. Marwell: So it -- it -- focused on today's laws, that's going to depend on how the states have treated the statutes. We cited in our brief the Priddy case from the Sixth Circuit. Tennessee is one of the statutes. The Priddy case decided that Tennessee was divisible. Michigan has two other burglary statutes in separate sections with separate punishments that apply to breaking and entry, including of a dwelling. They don't have the remaining-in issue. So that would remain regardless of what you decided here. And then I think it would depend on how -- the divisibility --

Justice Kavanaugh: What --

Jeremy C. Marwell: -- analysis.

Justice Kavanaugh: What percentage of burglaries do you think are remaining-in versus entry burglaries?

Jeremy C. Marwell: So what we -- one thing (202) 628-4888 1 we know at the time of ACCA was that the New York burglary statute was very influential. And the commentaries to that burglary statute, which we cited in our reply brief, say explicitly that entry was the common, more common variant.

Justice Kavanaugh: Far more common, right?

Jeremy C. Marwell: Yeah. Yeah. And I think that -- that shows why the states would not have completely reframed their burglary statutes through the unacknowledged and unexplained addition of two words, "remaining in."

Justice Kavanaugh: But it shows -- and this is an effect of Taylor, but the effects of adopting your position would be to knock out all burglaries from potentially 18 or more states as predicates?

Jeremy C. Marwell: So I don't -- so, again, I think the -- the relevant question is how many would have been knocked out at the time Congress enacted ACCA, since that, I think, is the fairest reading of Castleman and Stokeling. As of today, I think it depends on the (202) 628-4888 1 divisibility analysis. And there are a number of jurisdictions of that 18 where I think it would be a -- a litigated issue, and a number of jurisdictions that have other burglary statutes that aren't affected. So --

Justice Kagan: Is -- is there any way to tell, maybe there's not, among remaining-in burglaries, what proportion of them are people who formed their intent later versus formed their intent at the moment of decision to remain?

Jeremy C. Marwell: I'm not aware of a statistic on that front. I -- I would say that it -- the benefit of doing the 50-state survey gives you a sense of where that issue has been material. And you see it in the cases cited in our brief, where you either have somebody who, you know, was lawfully present, went into the bank or into the store, or you have a situation where the authorization to enter was disputed. And so the prosecution will charge both. And often the easier course, if you take the government's reading, is, well, don't worry about whether intent existed at the time (202) 628-4888 1 of entry because, you know, there was a commission of a misdemeanor or a crime while you're -- while you're --

Chief Justice Roberts: It has to be -- it has to be very unusual that someone enters a bank and only then does it occur to them that that's where money is that they might want to rob. (Laughter.)

Jeremy C. Marwell: Well, I -- I think the reason that the states adopted these remaining-in variants is because you're right in the sense what they were trying to get at was the person who came to the bank with that plan and they were going to avoid having to break in because they could enter lawfully. And there was a sense that that person is a burglar, just like the one who actually breaks and enters. But I think that supports our view because those are captured under both -- both sides' tests because that -- that person has the intent at the time he -- his presence in the -- in the bank becomes unlawful.

Justice Alito: What do you make of (202) 628-4888 1 Taylor's definition of -- of burglary, where the Court said that the contemporary meaning of burglary means at least the following, and -- I'm sorry, contains at least the following elements: An unlawful or unprivileged entry into, or remaining in a building or other structure with intent to commit a crime? How do you read -- how can you read that consistent with your interpretation?

Jeremy C. Marwell: I think the way the Eighth and Fifth Circuits and Seventh Circuits have which is that, you are, A, defining burglary, coming at it at against the background of a common law rule that everyone agrees, the government and us, had this contemporaneous intent requirement. And you're pairing "remaining" with "entry." And everyone agrees entry is a point in time. So you have the contextual -- your -- you inform the meaning of "remaining" by context. And then you have "remaining" modified by the words "with intent." And as the examples --

Justice Alito: Yes, it's remaining --

Jeremy C. Marwell: -- of some -- (202) 628-4888

Justice Alito: -- remaining with intent to commit a crime.

Jeremy C. Marwell: Right.

Justice Alito: So where do we get the -- the -- the point of entry there?

Jeremy C. Marwell: I -- I think you get it --

Justice Alito: I'm sorry, the time of entry. Where -- where do you -- how do you read into that the requirement that the -- the intent has to be present at the time of entry?

Jeremy C. Marwell: Because you're reading "remaining" in the context of entry. And -- and you are trying to define an offense of burglary at a time where 22 states unquestionably said you have to have intent at entry.

Justice Kavanaugh: What do you mean by --

Jeremy C. Marwell: So --

Justice Kavanaugh: I'm sorry to interrupt.

Jeremy C. Marwell: I'm sorry.

Justice Kavanaugh: What do you mean by context there? It says "or" -- entry into (202) 628-4888 1 "or" remaining in.

Jeremy C. Marwell: Well, I -- the -- this Court in the Neal case that we cited in our reply brief has said when you have a pair of words, you know, disjunctive pair of words, you look at one in the context of the other. And --

Justice Kavanaugh: But there are two distinct concepts, and at least I read Taylor as saying these two distinct concepts are ways you can fall within generic burglary.

Jeremy C. Marwell: But they're two distinct concepts engaged in the effort of defining what burglary was in most states at that time. And I think if you read "remaining" in the continuous way that the government says, it all but eliminates the intent-at-entry requirement. I don't think that is what Taylor would have done explicitly. And, again, that's because --

Justice Kavanaugh: Although there were some states, you acknowledge, that supported the government's position at that time and that are cited in LaFave, which is cited right after this sentence in Taylor, is the LaFave treatise. I -- (202) 628-4888

Jeremy C. Marwell: Correct. And -- and Taylor acknowledged that its definition was not going to be perfect or was not going to be maximalist in the sense of capturing every single state. It gave some examples: The vending machine; California, shoplifting is burglary. It said there may be some states that are broader. But just to get back, the government's definition puts entry completely out of focus, as the Fifth Circuit says, and it makes entry the small minority view because every unlawful entry followed by formation of intent is burglary under their view. And I just think Taylor did not give an indication of -- of changing, diverting that far. If -- if you read Taylor as creating simply an empty -- empty vessel to be filled in as states decided, you know, whether they would expand their burglary statute, I don't -- that's an odd way to read a criminal statute.

Justice Alito: I mean, what you say is a -- is an argument that one might make to a state legislature in defining burglary, because the other definition can potentially catch some (202) 628-4888 1 of these people who have less -- less dangerous characteristics -- that where their -- that individual crime has less dangerous characteristics, but under ACCA, the person has to have three prior convictions. And here your client has two prior convictions for assault with a deadly weapon, so this is just the third. So this is not a case where this definition is -- is imposing a severe punishment on somebody who, you might argue, is less blameworthy; isn't that right?

Jeremy C. Marwell: Well, I think under -- under the Court's categorical approach, the -- the -- the question is the statutes, not the -- not the conduct. And I don't think that the -- just needing three necessarily speaks to what the three needs. We cited in our reply brief, you know, there are certain populations that are subject to multiple, you know, low-level offenses and so might well get three. If I could reserve?

Chief Justice Roberts: Thank you, counsel. Mr. Tripp. (202) 628-4888 1 ORAL ARGUMENT OF ZACHARY D. TRIPP ON BEHALF OF THE RESPONDENT

Zachary D. Tripp: Mr. Chief Justice, and may it please the Court: Petitioner's conviction here is a burglary conviction for purposes of ACCA. And if I could just make three or four points why that's right and try to simplify things a bit in response to the questioning. So, first, I think you can really just begin and end with the text here. The statute says burglary. This Court has already held that that means any statute with these basic elements which include remaining with intent and -- and that's true regardless of the exact definition or label. And -- and this is just what it means to remain in a place. You remain there as long as you stay. That's what this Court already held in Cores, the case about the alien crewman who remained in the United States unlawfully because he was still here. And that's also how this works in the law of trespass, which I think is really important here because it has the same pairing, (202) 628-4888 1 to enter land or remain on land without permission. And the "remaining" prong for trespass is a continuing trespass. It's telling you that if you're on somebody's else's land without their permission, it doesn't matter how -- how you got there, how long you've been there; you're under a continuing obligation to leave. And I think the -- the right way to understand the -- the -- the Taylor formulation and -- and really what's happening in these state laws is -- is aligning their burglary law with trespass. So that there's a trespasser in your house or some other building or other structure like that, and they have the intent to commit the crime, that's what burglary is. And then I think another important point about the text here, right, is --

Justice Kagan: Mr. Tripp, the -- the formulation that Taylor used, and I agree it tends to support your position, but, I mean, nobody could think that the person who was writing the Taylor opinion had this issue in mind at that point. So it's one of these things of how do (202) 628-4888 1 we read our own opinions and do we read them like statutes or do we read them a little bit differently, understanding what was and what wasn't in the mind of the Court at that time?

Zachary D. Tripp: Right. And -- and I think an -- an important part is the next piece that I was about to get to where it says that -- that -- the statutes just need to have these basic elements and that it doesn't matter how exactly they are defined and labeled. And so I think what it tells you is that when there's variation among the states, right -- Congress was trying to cast a broad net. It was trying to pick up burglary statutes, the typical range of variation. And so when there's variation among the states about how do you define the "remaining" prong in their burglary statute and how long does it last, how does it interact with the "intent" prong in their burglary statute, it's still a burglary statute. It -- it doesn't matter for purposes of Taylor. It's just too far down in the weeds. And I think --

Justice Sotomayor: But then what do (202) 628-4888 1 we do with the common law that has informed us? And I do understand that in -- in Taylor we were very clear that the -- burglary had evolved from the common law in -- in dramatic ways, including the fact that most of the time burglary was limited to dwellings, and in more recent generations, it has expanded to a break-in to any structure that people own. But, still, your definition, your reading would be Congress intended to sweep in every statute that called itself burglary?

Zachary D. Tripp: It -- it --

Justice Sotomayor: Basically that's you're -- you're -- what you're saying. They weren't looking at the common law. They weren't looking at the majority of states, which were -- who defined it as just "entering in." When they previously used the word "surreptitiously," they were talking about -- they were thinking about everybody who remains without permission, even if they're not there surreptitiously.

Zachary D. Tripp: So I -- I -- I think there is a lot packed in there. A -- a couple (202) 628-4888 1 responses. I mean, I think what Congress was trying to pick up was the typical range of burglary statutes in the states. And --

Justice Sotomayor: So why isn't the typical the majority, the ones where "entering in"?

Zachary D. Tripp: So the typical, even in 1986, most states had remaining-in burglary. The 29 states had it. That's undisputed.

Justice Gorsuch: Well --

Zachary D. Tripp: Most of them, 27 of them, it was almost verbatim --

Justice Gorsuch: If -- if I might on that, just to interrupt, I'm sorry, but just -- just to get the playing field right, we have the 29, but then we have, I believe, about six where we have subsequent judicial decisions indicating that it required intent upon entry, some of which were later overturned by legislatures or whatever. And you're asking us to not pay attention to those six and use 29 rather than, I think it's 23, something like that. I might have my numbers not quite right, but it's (202) 628-4888 1 slightly under half. And you asked us to ignore those subsequent decisions because they came after 1986. But we usually look at statutes and -- and -- and say judicial, later judicial decisions we're interpreting as they were written at the time, retroactively, and that they're not pieces of legislation that have prospective effects. So I'm not sure why we would ignore those six or whatever number of cases it would be and take us down to 23 rather than 29. So I'm sorry for interrupting, but if the premise of the entire discussion is it's 29, I guess I need some help on --

Zachary D. Tripp: So --

Justice Gorsuch: -- whether that's the case.

Zachary D. Tripp: -- I think the answers sort of all get to the same place, and -- and -- and that I think really our position is no matter how you look at this and how far you dig, you're going to get to the same answer. Right? So Taylor's formulation is -- (202) 628-4888

Justice Gorsuch: Well, I'm confident the government wants to win this case no matter what. (Laughter.)

Zachary D. Tripp: No, if I -- If I could -- if I could just walk you through --

Justice Gorsuch: But if you could walk through 29 --

Zachary D. Tripp: Yeah.

Justice Gorsuch: -- versus 23, and why I should pay attention to one number rather than the other.

Zachary D. Tripp: So -- so just -- the Taylor formulation is enter or remain. Twenty-nine states had remaining-in burglary, and the overwhelming majority of them were almost verbatim that formulation, just enter or remain, right, that's what they were saying. This is just what it means to remain in a place. Right? And so then if you were trying to figure out what is it the states were doing, again, I think the first place you would look is their statutes. Their statutes just say "remain." (202) 628-4888 1 If you look at their judicial decisions in 1986, or imagine your Congress drafting this statute, literally every single judicial opinion that has ever -- every single state that has ever resolved this timing question has read "remain" to mean remain, to -- to -- read it literally to cover the entire time that you are trespassing. I mean, I -- I just think that the --

Justice Gorsuch: Maybe you could get to my question at some point.

Zachary D. Tripp: Right, and --

Justice Gorsuch: Which is why should I ignore those later judicial decisions? I guess I'm just looking for a reason why.

Zachary D. Tripp: I -- I guess, we're -- I'm not trying to count -- so we're trying to put -- put two -- two different figures. I'm trying to -- to understand sort of two different points in time. One is: What was Congress thinking in 1986? And I think if you're just trying to approach this from the perspective of a legislator who is trying to understand what this is in 1986, the answer is the state of the (202) 628-4888 1 law in 1986. The other thing that we're looking to, just in this conversation, is: What would the effect of adopting Petitioner's ruling be? And there we have to look to the change in the law. Right? And -- and I think they -- they recognize this. But today the number is that there is 18 states that have -- that read "remain" to -- to mean remain, either in their case law or with statutes that have adopted that rule, and those states have a population of 130 million people. We're talking about tossing out an enormous number of burglary prosecutions. And I really want to emphasize how much this would be the tail wagging the dog. And in -- in response to Justice Kavanaugh's question, I mean, this is very clearly, I think if you look at these cases --

Justice Gorsuch: You -- you -- just -- just to -- I'm sure the practical effects for the government are terrible and you don't want my sympathy, I'm sure, on any of that, but I -- I guess you'd agree with me judicial (202) 628-4888 1 decisions normally operate retroactively?

Zachary D. Tripp: I agree with you that, yeah, that -- that ordinarily we understand the judicial opinions here to -- to reflect the state of the law as it existed at the time. I'm just trying to --

Justice Gorsuch: How -- and I guess I'm just on a totally different tangent. We had some conversation last term in Stitt and Sims about how we approach these cases generally. And I guess I'm wondering whether the government's given any further thought to that? This approach of counting up states and -- and then asking whether this statute matches the platonic ideal of burglary in 1986, according to, however, 50-state survey, it's not very popular with lower courts, to say the least, and it's not easy to do. And it's -- and it -- one might also ask whether it's fair to -- whether it puts anybody on fair notice what -- what their conduct is, if it is later dependent upon this mathematical exercise.

Zachary D. Tripp: So -- (202) 628-4888

Justice Gorsuch: Has the government considered about whether we should consider whether the states, if they call some things burglary, whether that should be dispositive, for example?

Zachary D. Tripp: To -- to my knowledge, we haven't changed our position on -- on -- or adopted any sort of new thing on that. But I -- I would say I think this case is honestly an opportunity to try to simplify things, that what you can just say here is that the Taylor formulation, it means what it says, right, that -- that enter or remain, that's good enough, that it doesn't matter how exactly the states define these things. And there's disagreement among the states on all kinds of other subsidiary issues. Right? What constitutes -- what makes your presence unprivileged, whether it extends to the whole building or only part of it? What exactly constitutes an entry? And Petitioner has given you no logical stopping point. And the reason is because they're already way past it. Right? Taylor says that (202) 628-4888 1 the -- the disagreement among the states about how to interpret these -- these different elements, it just doesn't matter. There is still burglary statutes.

Justice Kavanaugh: Taylor says --

Zachary D. Tripp: And I think that's really the heart, the heart of our submission here, that this is just too far down in the weeds.

Justice Kavanaugh: Taylor said "substantially" corresponds, not "exactly" corresponds.

Zachary D. Tripp: Right. Right. And -- and, again, if Congress had an extremely specific, you know, and especially this -- this interpretation, an -- an idiosyncratic and arcane and honestly pretty novel understanding of remaining that reflects no dictionary definition of the term, that -- that Congress would have provided that --

Justice Sotomayor: I'm sorry, there's --

Zachary D. Tripp: -- definition. It wouldn't have just said burglary.

Justice Sotomayor: It can't be idiosyncratic because a number of states have (202) 628-4888 1 accepted it. As of 1986, you had a number of states who read it that way.

Zachary D. Tripp: I -- I --

Justice Sotomayor: You have the common law understanding that it was entry only and not remaining in. You have the use of "surreptitious" as a definition prior to this statute, which also has a -- a sense of, that you're surreptitious, that you're remaining in with the intent to do something because you're hiding from being found to do something. So I -- I -- I'm not sure how you call it idiosyncratic.

Zachary D. Tripp: So I -- I -- I -- I -- I think it is idiosyncratic. Today it's still very much the minority position in this timing rule. As of 1986 we think the number was zero, that exactly zero states had adopted the timing rule Petitioner is -- is advocating. And I -- I also just wanted to -- to sort of take a step back and emphasize that, you know, the reason Congress, as Taylor says, Congress was focused on modern law enforcement concerns, not "arcane distinctions" that have (202) 628-4888 1 little relevance to modern law enforcement concerns. And it's harder to think of a better description of this rule. I mean, you imagine being at home woken at -- at night from the sound of footsteps downstairs. You come downstairs and there's an intruder in your house who's is stealing your television or, worse, is like intent on assaulting you. I just don't think anybody would care in that situation or -- or know whether the intruder developed that intent three seconds before or three seconds after breaking in. The timing just doesn't matter. What matters is there is an intruder in your house who's bent on stealing your television or -- or assaulting you. I think the same -- another very powerful illustration of this --

Justice Sotomayor: Do you think that it's a different reaction if you hear someone downstairs and they are in your pantry and you come down and they are stuffing their face with food, do you think you're going to have the same reaction to that person than you had to (202) 628-4888 1 the person walking away with your TV?

Zachary D. Tripp: I -- I -- I -- I think --

Justice Sotomayor: Or somebody walking out of your house, you see they're empty-handed, except they have a coat on now. They're clearly homeless. They're disheveled. They're unclean. Do you think your reaction's going to be the same to the person stealing your TV?

Zachary D. Tripp: I -- I -- I think that your reaction to those different situations -- those different situations would be very different, but it would -- it doesn't depend on the timing rule. It depends on the underlying facts.

Justice Gorsuch: I -- I guess --

Zachary D. Tripp: And I think the best illustration of this --

Justice Gorsuch: I guess, I'm -- I'm sorry to interrupt, but -- again, but I -- I'm stuck on a little something differently. I would probably react badly to all of them myself. (Laughter.)

Justice Gorsuch: But I guess I'm (202) 628-4888 1 wondering, though, those other crimes are bad, too. Nobody is here to defend entering without intent and then committing a crime with intent later. No -- nobody thinks that's a good thing. But the question is whether it was burglary. And burglary is a very specific crime. And at common law it did require intent --

Zachary D. Tripp: Right.

Justice Gorsuch: -- upon entry. So calling it some arcane thing that is nuanced to a point where nobody cares is like asking us to ignore a thousand years worth of law.

Zachary D. Tripp: So --

Justice Gorsuch: And -- and -- and -- and also possibly a majority of the jurisdictions in 1986. And so I -- I guess that just -- perhaps there's a better argument --

Zachary D. Tripp: So it's --

Justice Gorsuch: -- than that it's too arcane.

Zachary D. Tripp: Just -- just -- I want to be clear. We agree with the rule that the (202) 628-4888 1 timing needs to be contemporaneous. You need to have the intent while you are remaining, right? We also know that the whole point of the "remaining" prong was to eliminate the common law requirement that there be an entry, right? That's the only thing it's doing in any of these statutes is eliminating that requirement. It was part and parcel of the states getting rid of the requirement that there be a break-in, that it be a dwelling, that it be at night, that it be with the intent to commit a felony. We also know that the states were not only focusing on the sort of surreptitious remaining type fact pattern because only a tiny number of the states actually required that. Most of them just said "remaining." And I think --

Justice Kavanaugh: The law -- the law -- to pick up on Justice Kagan's question from earlier, the law had sufficiently changed by 1986 that the author of the opinion in Taylor knew enough to put "remaining in."

Zachary D. Tripp: Yeah. And -- and it's (202) 628-4888 1 undisputed that "remaining in" is -- is -- is part of what Congress was trying to reach. And I guess what I'm --

Justice Kagan: Right. But the question, Mr. Tripp, is how the intent requirement figures in that. There was no question that they -- that Taylor says and -- and that the "remaining in" was by then a known feature. But just as you said, the "remaining in" was really an attempt to close a loophole, if you will, in the entry and say, look, we have these cases that are coming up where the person is not entering unlawfully, the -- the person -- the person is only remaining unlawfully. And so it was an attempt to close that loophole. But then the question that I think Mr. Marwell is raising is whether the intent to close that loophole suggests that there was also a desire to really shift the historic common law understanding of when the intent needed to develop. And he's suggesting, no, it was really just an attempt to close the small loophole but (202) 628-4888 1 you shouldn't read into that some much larger desire to -- to -- to shift the understanding of intent and when it arises.

Zachary D. Tripp: So a couple different responses to that. So, first of all, I think this is actually not a very big shift because this timing question doesn't come up very much. There's still 11 states that have had remaining-in burglary on the -- on the books for decades. The timing question is never -- they don't have any case law on this. And then as for what the states were doing, as I was saying, we know that they were adding the "remaining" prong to eliminate the requirement that there be an entry, and we know that they were doing more than just picking up the guy who was staying behind and hiding in a store after hours who could steal things inside because they -- they weren't requiring that it be surreptitious. So then to figure out what is it that they were trying to do, I think really in a natural way to understand that is to just read the text of their statutes. They say "remain." This is just what it means to remain in a (202) 628-4888 1 place, that you remain as long as you stay. If you want to dig deeper and look at the case law in the time in 1986, the case law was unanimous on this timing question in favor of reading that to just mean what it says. And -- and so I think really -- and then again to come back, Taylor focus -- focuses on -- it says, look, what the states were trying to do here is focusing on modern law enforcement concerns, right? And the concern, of course, is that there's a trespasser in your house or some other building or other structure like that and that he's intent on committing a crime. And -- and again, I think it's really important that in many of these cases, just nobody would care when the intent was formed. The problem is that there's the -- the criminally-minded trespasser. A very powerful illustration of this is the domestic violence situation which we talk about in our brief, which would be -- which would be burglary under -- under Petitioner's rule, right? If an ex-boyfriend goes to visit the ex-girlfriend, she lets him in, and then they (202) 628-4888 1 start to argue. She says, look, you need to get out of here. If at that moment he intends to assault her, that's burglary under -- under Petitioner's rule because he remains with intent. But if he decides to assault her three or four seconds later, it's not? And just -- you know, from the perspective of the victim who's being assaulted in her own home by an unwelcome visitor, just -- what does it matter?

Justice Breyer: True, but we're -- we're trying to figure out something about the crime in general. In general, is it more likely to involve violence or not? So we have situation 1, where he intends to commit the crime inside the house either when he breaks in or when he first remains. Situation 2, he doesn't form the intent to commit a crime until after he first breaks in or first unlawfully remains. Okay? Those are the two situations. I would have always thought -- I guess this is only the 50th time I've asked this question, but I would have always thought, you know, you could look up the cases on it and get (202) 628-4888 1 an idea, empirically. And -- and then we'd have at least something to go on, even if they were only appellate cases.

Zachary D. Tripp: Yeah.

Justice Breyer: Has anyone ever done that?

Zachary D. Tripp: I think honestly the -- the cases that are cited in these briefs do that. And -- and they tell you, they -- they paint a pretty powerful picture. I urge you to read a lot of them. It's true some of them are minor.

Justice Breyer: I can only read so many. (Laughter.)

Zachary D. Tripp: Some of these are very significant --

Justice Breyer: Can I get help from my law clerks? (Laughter.)

Zachary D. Tripp: Many of these are -- yeah. Many of these are very significant crimes. I -- I want to be clear that the -- the situation I was talking about, of somebody coming in and then later seeing a woman inside he decides to (202) 628-4888 1 assault, the domestic violence situation I was talking about, these are not hypotheticals. These are the facts of Gratton out of Alabama, of DeNoyer out of South Dakota, of Fontes out of Ohio. That's -- that's the seeing a woman after you break in. The domestic violence one, Braddy versus -- out of Florida. You know -- and a lot of these are very, very serious crimes. And I think they illustrate that what these people are engaged in is very erratic and impulsive decision-making, right, that they've -- they -- they already decided to break into somebody's house, and then they make an impulsive -- or -- or to be in a place where they're not supposed to be and not leave, and then they make a decision to -- to engage in some other further conduct, I think in many cases is really very, very serious. It's true there is some that are much more minor like -- like Gaines, the facts of that. But, again, what makes that sympathetic is not the timing; it's the -- it's a homeless guy who's cold, right? And you could have that same homeless guy, you know, in -- in Buffalo, (202) 628-4888 1 it's -- it's snowing, it's very, very cold, he's walking down the street, he looks in a window and he sees a coat, and so he -- he breaks in, he grabs the coat, and he goes. That's burglary under their rule, even though it's just equally sympathetic. What -- what makes it sympathetic or not are the facts of the underlying case, not the timing rule that he's urging.

Justice Kagan: Mr. Tripp, I'm not sure whether this is here nor there, but, you know, some of the serious crimes that you just mentioned, and they are extremely serious, if you went out on the street and asked a hundred people whether those assault cases are burglary, you would get a hundred "no" answers. Does that matter?

Zachary D. Tripp: I -- I think the -- the place where that instinct is most powerful is for the domestic violence situation, where I agree that that is like -- feels intuitively different. And I think this was really what drove the drafters of the Model Penal Code and -- and says -- there's some language in LaFave to say you shouldn't have remaining-in (202) 628-4888 1 burglary, and if you do at all, it should be surreptitious. And --- and I think really the short answer is that the states didn't buy it. The states just didn't do that. They didn't limit it to remain -- to surreptitious remaining. The majority of them adopted remaining statutes. Even more of them have it today. And so I -- I think, basically, the states have recognized that there's something really much more fundamental here. It -- it's not about the nature of the intrusion. It's about the fact that there is an unwelcome visitor, somebody in your home. It's about the safety and security of a person in their own home or in some other space like that, from an unwelcome visitor who's bent on committing some kind of crime. And I -- and I think the fact that a lot of these are actually -- I mean, a lot of these are really very, very serious crimes, when the --

Justice Breyer: In --

Zachary D. Tripp: -- the timing question does come up. (202) 628-4888

Justice Breyer: Some of them are and a certain amount of them aren't. Has the Department ever thought -- you don't have to answer this -- but has the Department ever thought of recommending to Congress a change so that instead of looking at the generic crime where the answer is going to be sometimes yes, sometimes no, there's violence, but saying look and see whether the person on the individual occasion submitted -- committed a violent act? Have you ever thought of that? And if they say no, we're not going to do that?

Zachary D. Tripp: I mean, I'm sure people have thought of it, but to my knowledge, the -- the Department hasn't proposed any affirmative legislation on this. I know there's legislation that's pending on the Hill about this, that -- that the Department is providing technical assistance on. But -- but, beyond that, I'm not sure I know.

Justice Kavanaugh: Can I --

Zachary D. Tripp: If I can --

Justice Kavanaugh: -- ask the same question that I asked the other side, which is in the universe of burglaries, do you have a (202) 628-4888 1 sense of how many are remaining in?

Zachary D. Tripp: I -- my sense is that it's pretty rare, that -- that it's pretty few, that in the, like, overwhelming number of burglary cases, you're going to have evidence of an unlawful entry and then that's just how you prove it up and that becomes the whole case. And I guess actually this gets out to this idea that our reading of "remaining" makes that prong more important than the "entry" prong. And -- and I think really our response is that it doesn't matter, right, that if you look at the law of trespass, it has the same pairing of "to enter" or "remain." And I don't think anybody cares which -- whether one of those is more important than the other or whether many entry trespasses bleed into remaining trespasses. They -- they're covering the waterfront of a trespass, and I think it's the same here.

Justice Kavanaugh: And if you were to lose this case, potentially all burglaries from how many states would no longer be able to be counted as --

Zachary D. Tripp: Yeah, it -- it would be 18 (202) 628-4888 1 states and counting. So there's 18 states with a population of 130 million today. There's another 11 that have still -- haven't addressed this issue. And assuming that the current trends continue, probably more of them will read "remain" to mean "remains."

Justice Kagan: May I ask you the --

Zachary D. Tripp: And then --

Justice Kagan: -- same question I asked Mr. Marwell, which -- how many of those states have other burglary statutes that you could capture, can I say real burglary in?

Zachary D. Tripp: I prefer not the real burglary, but, yeah. I think there is -- there is -- there is a mix. I think ten of these states have adopted this rule by statute, but I don't know how much the different ones are -- are used relative to each other. But you would still be tossing out an enormous number of burglary prosecutions, you know, including from -- from Michigan, Texas, some very big states. And then I think another critical point, again, is that -- is that Petitioner's given you no logical stopping point, right, (202) 628-4888 1 that this is -- it -- it cannot end here. If you think that it gets at this level of specificity, then why not all the other disputes about, you know, what it constitutes to be unprivileged, what exactly an entry is, and on and on and on. And I think what it really gets to is that --

Justice Gorsuch: Right. If the intent to -- if the intent to enter isn't critical, how about the act of what's done once inside? If -- if the mens rea isn't -- if that's too minor to care about, and we're going to just turn every former common law larceny into a burglary, which is what you're asking us to do in some ways, because a lot of the other conduct would be larceny, it's not like it would be unpunished at common law, why should we care about the actus reas and so why does it have to be taking things to be burglary? Couldn't it maybe also conducting a fraud while they're inside? California defines burglary to be almost as expansive as that. So perhaps that's -- that's equally consistent (202) 628-4888 1 with your argument logically.

Zachary D. Tripp: So it's -- it's equally consistent with Petitioner's as well because it covers any crime that's not covered. We -- we agree that there has to be mens rea. Right? You -- you have to -- to intend -- you have to know that you're unlawfully inside the place that you're on -- that you're trespassing. And we know -- and we agree that you need to have intent while you're doing that. The -- the only dispute here is do you need to have intent only at the initial second --

Justice Gorsuch: I understand.

Zachary D. Tripp: Of the -- right? That's just the timing.

Justice Gorsuch: But if that's too minor to care about, then why should we care about these other things, too, that were also part of common law burglary?

Zachary D. Tripp: I think part of the answer is that's -- that remains, first of all, the Taylor formulation and what the -- the overwhelming majority of states are doing. They are saying that you need to unlawfully enter or remain in a building or structure with (202) 628-4888 1 intent to commit a crime. That's what these statutes say. I think if you flip through them you'll see that many of them are --

Justice Gorsuch: So it isn't that it's too minor. It comes back to counting again. And then we're just back down to 29 versus 23 and we have to decide.

Zachary D. Tripp: I -- I think it's not just about it being minor and it's not just about counting. It's that -- I think what the states have recognized is that the core of this offense are not these kind of questions from the common law about did you break and did you enter, it's is there a trespasser in your home who is intent on committing a crime? That -- if there is, he's a burglar. Right? I think that's -- that's really what the states are -- are boiling it down to. That's the --

Justice Gorsuch: Any crime?

Zachary D. Tripp: -- modern offense. Any crime. That's what Taylor says. He agrees with that. Petitioner would agree that if the person is breaking into a house, you know, at night with the intent to commit stock fraud on (202) 628-4888 1 his phone, I mean, I don't know if that would ever happen, but, yeah, that's burglary under -- under either of the rules here. And I -- I guess also just to -- to try and take one step back in response to some of the -- the -- the questions, right, if you're going to have a categorical approach to this statute that doesn't look to the facts of the individual case, you -- you need to have a broad definition of the category. Right? Otherwise, if you have a very specific laundry list, a long list of things that every statute needs to match perfectly, all that you're going to do is be knocking them out one after another, after another, until there's really nothing left and -- and I think would really defeat the purpose of Congress in including burglary among an ACCA predicate. I guess maybe just one last point here. I mean, the -- the statute here, this is a home invasion statute. I think most people would think that this is the heart of modern burglary. And -- and I -- I -- I think if you told the drafters in Congress, you know, (202) 628-4888 1 imagine a person who you think should fit within the ACCA, it would be somebody with a track record that looks an awful lot like Petitioner's. So if there's no further questions, we're asking the Court to affirm.

Chief Justice Roberts: Thank you, counsel. Mr. Marwell, four minutes remaining. REBUTTAL ARGUMENT OF JEREMY C. MARWELL ON BEHALF OF THE PETITIONER

Jeremy C. Marwell: Thank you. On the bad cases that the government, the facts that the government alleges, there's no dispute that those are crimes. The question is: Are they burglary? They may be trespass. They may be assault. They may be punished separately. But Congress used the word "burglary." And I think the reason that we're here is that there is some incongruity between the government's account of generic burglary and these cases that just don't feel like burglary. And that's why the Fifth Circuit, the Seventh Circuit, have held that Taylor is not clear on (202) 628-4888 1 its face, doesn't resolve the issue. I think it's worth reminding that less than a year before Taylor, the New York Court of Appeals interpreted that state's remaining-in statute the way we say. That statute we know from Colorado and other -- and other states was a model for other states' laws and I think it helps explain what the Court may have been getting at in Taylor. The government focuses heavily on trespass and the fact that "remaining" has a continuous sense in that law. I think that's the fundamental problem with their position is that they're equating trespass and burglary. And we need some line, we suggest it should be drawn from the common law and state practice, that -- that distinguishes those two crimes. On the concern about simplicity or a slippery slope, I would suggest -- I would submit that Taylor provides you an administrable and workable rule. Looking to what states did in 1986 is an objective foundation. It's a point in time. And there isn't actually that much (202) 628-4888 1 dispute between the parties about what state law was. It's just a dispute about what inferences or what conclusions to draw. If you walk away from that approach, I think you're left with the difficult questions of what is and what isn't risky in -- in a particular consequence. And the -- the government, I think, has -- has not asked you to revisit Taylor in this case. As to whether this issue is a big deal, I think it is a big deal because the government can just charge entry or remaining and it essentially makes the long-standing traditional rule of intent at entry disappear in all but the very small number of cases that the government identifies, such as a fleeting entry or an interrupted entry. And I -- we don't see any evidence in Taylor that there was intent to make that big a change. If this does become a problem, obviously the Department is well positioned to ask Congress to fix it. And if there are no further questions, (202) 628-4888 1 we would suggest that a call to simplicity doesn't justify overlooking hundreds of years under which the essence of burglary has been somebody who trespasses for the purpose of committing a crime.

Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 11:03 a.m., the case was submitted.)