FILED
NOT FOR PUBLICATION JUL 08 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10681
Plaintiff - Appellant, D.C. No. 2:10-cr-00576-KJD-
GWF-1
v.
BRYAN HISER, MEMORANDUM*
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued January 16, 2013
Submitted July 8, 2013
San Francisco, California
Before: FARRIS and BYBEE, Circuit Judges, and ADELMAN, District Judge.**
The United States appeals Bryan Hiser’s sentence imposed after he pled
guilty to two counts of violating 18 U.S.C. § 922(g)(1). The United States
contends that the district court erred in determining that Hiser’s prior burglary
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Lynn S. Adelman, District Judge for the U.S. District
Court for the Eastern District of Wisconsin, sitting by designation.
convictions did not constitute crimes of violence for purposes of sentence
enhancement according to U.S.S.G § 2K2.1(a)(2). We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
We review the district court’s interpretation of the sentencing guidelines de
novo. United States v. Alvarez-Hernandez, 478 F.3d 1060, 1063 (9th Cir. 2007).
Hiser’s prior two convictions were for burglary in violation of Nev. Rev. Stat.
205.060. Nevada’s burglary statute is facially broader than the generic definition
of burglary because it “does not require the entry to have been unlawful in the way
most burglary laws do.” Descamps v. United States, No. 11-9540, 2013 WL
3064407, at *4 (U.S. June 20, 2013). Nevada has long since eliminated “[t]he
common-law vestige of ‘breaking’ as an element in the crime of burglary.”
McNeeley v. State, 409 P.2d 135, 136 (Nev. 1964) (citing State v. Watkins, 11 Nev.
30 (1876)). Under Nevada’s statute, consent to entry is not a defense, “so long as
the defendant was shown to have made the entry with larcenous intent.” Thomas v.
State, 584 P.2d 674, 677 (Nev. 1978) (citing favorably for support People v.
Deptula, 373 P.2d 430, 431–32 (Cal. 1962) (en banc)). Accordingly, Nevada
courts have upheld convictions for burglary that did not include unlawful entry.
See, e.g., Stephans v. State, 262 P.3d 727 (Nev. 2011) (upholding burglary
conviction for shoplifting). Thus, Nevada’s burglary statute is quite similar to that
of California’s. See Descamps, at *4 (citing People v. Barry, 29 P. 1026, 1026–27
(Cal. 1892) (“The common-law element, to wit, the use of force by breaking, in
order to constitute burglary, was originally a part of our statute; but it has long
since ceased to exist . . . . That the entry is made in the daytime, when the store is
open for business, may render it more difficult to prove the criminal intent present
in the mind of the defendant when he enters; but that is a matter of evidence, and
not a question of law.”)). “In sweeping so widely, [Nevada’s burglary statute] goes
beyond the normal, ‘generic’ definition of burglary.” Id. Therefore, Hiser’s prior
two convictions could not constitute crimes of violence under the categorical
approach. See id. at *5.
Additionally, because the Nevada statute is indivisible with respect to the
element of entry—an element we determined is broader than the generic definition
of burglary—we are precluded from applying the modified categorical approach
under the Supreme Court’s recent decision in Descamps. See id. at *14. Reading
the Nevada burglary statute in conjunction with Nev. Rev. Stat. 205.065, as the
government contends we must, does not alter this conclusion, as the latter statute
only indicates what reasonable inferences a jury may make if they determine the
entry was unlawful. It does not change the fact that an individual can be convicted
under the Nevada statute without “breaking and entering or [committing] similar
conduct . . . [and covers] a shoplifter who enters a store, like any customer, during
3
normal business hours.” Id. at 4. Therefore, we are precluded from implementing
the modified categorical approach in conducting our categorical analysis of the
Nevada burglary statute. See id. at *5, *14.
AFFIRMED.
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