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Of the fence. The burglary, arson, extortion and use of explosives are determined by reference to the elements of the offense, a categorical analysis. I know we asked you to organize this vagueness issue. But when you were here before you didnt think that the statute was vague as applied to your client. As i remember your argument was its clear that your client did not fall within the residual clause largely because the offense that is at issue a possession offense and you argue that none of the specific offenses listed is a position offense. Youre correct your honor. When we were here last time it is plainly not included for the reasons you mention and others. Why do we have to get to this issue at all . Why do we have to reach out to decide a constitutional question . Certainly, your honor, the fact that it is excluded it is at odds of the other courts. Something that is not in the plain definition but held to fall in the plain definition reveals the vagueness of the residual clause. ....
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