FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50609
Plaintiff-Appellant, D.C. No.
v. 2:09-cr-00135-
DANIEL HYUN PARK, RGK-1
Defendant-Appellee.
OPINION
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted
November 4, 2010—Pasadena, California
Filed June 17, 2011
Before: J. Clifford Wallace and Susan P. Graber,
Circuit Judges, and Richard Mills, Senior District Judge.*
Opinion by Judge Wallace
*The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.
8261
UNITED STATES v. PARK 8263
COUNSEL
Jean-Claude Andre, Assistant U.S. Attorney, Los Angeles,
California, for the plaintiff-appellant.
Adriaan F. Van Der Capellen, Fountain Valley, California, for
the defendant-appellee.
OPINION
WALLACE, Senior Circuit Judge:
In August 2009, Park pleaded guilty to being a felon in pos-
session of a firearm, which is prohibited by 18 U.S.C.
§ 922(g)(1). The government now appeals from Park’s 37-
month sentence, arguing that the district court erred when it
refused to impose a “crime of violence” sentencing enhance-
ment based on Park’s prior conviction for first-degree bur-
glary in California. According to the government, the district
court should have applied the enhancement because Califor-
nia first-degree burglary is categorically a “crime of violence”
under section 2K2.1(a) of the United States Sentencing
Guidelines (U.S.S.G.). We have jurisdiction over the instant
appeal pursuant to 18 U.S.C. § 3742(b), and we vacate Park’s
sentence and remand for resentencing.
I.
[1] Federal firearms defendants, such as Park, are subject
to an enhanced Sentencing Guidelines range when they com-
8264 UNITED STATES v. PARK
mit a firearm offense after “sustaining [one or more] felony
conviction[(s)] of . . . a crime of violence.” U.S.S.G.
§ 2K2.1(a) (2009). To determine whether a prior offense is a
“crime of violence” under section 2K2.1(a), we look to the
definition of that term under U.S.S.G. § 4B1.2(a). United
States v. Crews, 621 F.3d 849, 851 (9th Cir. 2010). Section
4B1.2(a), which is otherwise known as the “career offender
provision,” id. at 856, defines a “crime of violence” as
any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that—
(1) has as an element the use, attempted use, or
threatened use of physical force against the per-
son of another, or
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise
involves conduct that presents a serious poten-
tial risk of physical injury to another.
This definition is almost identical to the wording used to
define the term “violent felony” under the Armed Career
Criminal Act of 1984 (ACCA). Compare U.S.S.G. § 4B1.2(a)
with 18 U.S.C. § 924(e)(2)(B)(ii) (defining “violent felony” as
an offense that “is burglary, arson, or extortion, involves use
of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another”). Accord-
ingly, we frequently look to cases interpreting the term “vio-
lent felony” to determine whether a particular offense
constitutes a “crime of violence” under section 4B1.2(a) of
the Guidelines. See Crews, 621 F.3d at 856 (explaining that
“the terms ‘violent felony’ in the ACCA, 18 U.S.C.
§ 942(e)(2)(B)(ii), and ‘crime of violence’ in Guidelines sec-
tion 4B1.2[ ] are interpreted according to the same prece-
dent”).
[2] The only question raised in this appeal is whether Cali-
fornia first-degree burglary categorically falls within section
UNITED STATES v. PARK 8265
4B1.2(a)(2)’s “residual clause,” in that it “involves conduct
that presents a serious potential risk of physical injury to
another.” U.S.S.G. § 4B1.2(a). The government expressly
concedes, for the purposes of this appeal, that section
4B1.2(a)’s other provisions are inapplicable in this case.
To determine whether an offense is categorically a crime of
violence under section 4B1.2(a)’s residual clause, we gener-
ally examine two criteria. Crews, 621 F.3d at 853; see also
Sykes v. United States, ___ S. Ct. ___, 2011 WL 2224437, at
*6 (June 9, 2011) (reiterating the relevant standards for evalu-
ating whether an offense is a crime of violence). First, the
“conduct encompassed by the elements of the offense, in the
ordinary case,” must “present[ ] a serious potential risk of
physical injury to another.” James v. United States, 550 U.S.
192, 208 (2007); see also United States v. Terrell, 593 F.3d
1084, 1093 (9th Cir. 2010) (concluding that Arizona second-
degree burglary constitutes a “violent felony” under the
ACCA), cert. denied, ___ S. Ct. ___, 2011 WL 1457602
(April 11, 2011). Second, the state offense must be “roughly
similar, in kind as well as in degree of risk posed” to those
offenses enumerated at the beginning of the residual clause—
burglary of a dwelling, arson, extortion, and crimes involving
explosives. Begay v. United States, 553 U.S. 137, 143 (2008);
see also Terrell, 593 F.3d at 1093.
II.
[3] Applying the categorical test here, we hold that Cali-
fornia first-degree burglary is a crime of violence pursuant to
the residual clause of section 4B1.2(a). Under California law,
a person commits burglary when he or she “enters any house,
room, apartment, tenement, shop, warehouse, store, mill,
barn, stable, outhouse or other building . . . with intent to
commit grand or petit larceny or any felony.” Cal. Penal Code
§ 459. An offense is classified as “burglary of the first
degree,” or residential burglary, only if it involves “an inhab-
ited dwelling house, vessel, . . . trailer coach, . . . or the inhab-
8266 UNITED STATES v. PARK
ited portion of any other building.” Id. § 460. Reading these
provisions together, the California Supreme Court has held
that first-degree burglary requires proof of two elements: (1)
entry into an inhabited dwelling, (2) with the intent to commit
a theft or felony. People v. Anderson, 211 P.3d 584, 589 (Cal.
2009).
A.
[4] Turning to the first step of the categorical approach, we
have no trouble concluding that the elements of California’s
first-degree burglary statute “involve[ ] conduct that presents
a serious potential risk of physical injury.” See James, 550
U.S. at 208. As we recently stated in Terrell, both “the
Supreme Court and this court have consistently held that bur-
glary,” in the ordinary case, “involves conduct that presents
a serious potential risk of physical injury to another.” 593
F.3d at 1093; see also Leocal v. Ashcroft, 543 U.S. 1, 10
(2004) (holding that burglary is a “classic example” of a
crime of violence because, “by its nature,” it “involves a sub-
stantial risk that the burglar will use force against a victim in
completing the crime”).
We applied similar reasoning in United States v. Becker,
919 F.2d 568, 573 (9th Cir. 1990), where we held that “first-
degree burglary under California law” constituted a “crime of
violence” under a prior version of the Guidelines. Examining
the elements of California first-degree burglary, we explained:
Any time a burglar enters a dwelling with felonious
or larcenous intent there is a risk that in the course
of committing the crime he will encounter one of its
lawful occupants, and use physical force against that
occupant either to accomplish his illegal purpose or
to escape apprehension.
Id. at 571. Admittedly, Becker construed an earlier version of
section 4B1.2, which defined a “crime of violence” as an
UNITED STATES v. PARK 8267
offense involving serious risk of physical force against a per-
son or property. See U.S.S.G. § 4B1.2 (1988). Under the cur-
rent version, the potential for force against property is not
sufficient to constitute a “crime of violence.” See U.S.S.G.
§ 4B1.2(a) (2009). Nevertheless, because Becker’s rationale is
premised on the potential harm to “lawful occupants,” its
holding—that California first-degree burglary involves a seri-
ous risk of physical injury—remains valid. See 919 F.2d at
571; United States v. M.C.E., 232 F.3d 1252, 1255 (9th Cir.
2000) (explaining that “[c]ourts . . . have come to the conclu-
sion (unanimous, so far as we can tell) that residential bur-
glary is indeed a crime of violence”).
It makes no difference for purposes of our analysis that
California first-degree burglary does not require an unlawful
entry in the same sense as the generic offense contemplated
by the Sentencing Guidelines. See Taylor v. United States,
495 U.S. 575, 599 (1990) (setting forth the requirements for
generic burglary); People v. Nguyen, 46 Cal. Rptr. 2d 840,
844 (Ct. App. 1995) (upholding first-degree burglary convic-
tion where the defendant gained access to the victim’s home
through false pretenses). As we explained in Terrell, the
absence of an unlawful entry does not, without more, “change
the fact that committing the offense, in the ordinary case,
presents a serious potential risk of injury” to lawful occu-
pants. 593 F.3d at 1093-94 (internal quotation marks omitted).
Relying on the Supreme Court’s decision in James—which
treated a violation of Florida’s attempted burglary statute as
a violent felony under the ACCA, even though “the offense
did not even require entry into a structure let alone . . .
‘unlawful’ entry”—we reasoned that “ ‘[t]he main risk of bur-
glary arises not from the simple physical act of wrongfully
entering onto another’s property, but rather from the possibil-
ity of a face-to-face confrontation between the burglar and a
third party.’ ” Id, quoting James, 550 U.S. at 203; see also
United States v. Mayer, 560 F.3d 948, 961 (9th Cir.) (treating
Oregon first-degree burglary, which does not require an
unlawful entry, as a violent felony because “[m]ost cases
8268 UNITED STATES v. PARK
applying” the statute “involve entries” that present a high risk
of face-to-face confrontation), cert. denied, 130 S. Ct. 158
(2009).
Moreover, and despite the absence of an unlawful entry
requirement (at least in the sense contemplated by the Guide-
lines), California has repeatedly emphasized the violent nature
of the ordinary residential burglary. According to the state
supreme court, California’s
[b]urglary laws are based primarily upon a recogni-
tion of the dangers to personal safety created by the
usual burglary situation—the danger that the intruder
will harm the occupants in attempting to perpetrate
the intended crime . . . and the danger that the occu-
pants will in anger or panic react violently to the
invasion, thereby inviting more violence.
People v. Davis, 958 P.2d 1083, 1089 (Cal. 1998) (emphases
added) (internal quotation marks omitted). This is especially
true of first-degree burglary:
[T]he Legislature’s distinction between first and sec-
ond degree burglary is founded upon the risk of per-
sonal injury involved. Burglary of business premises,
even though such premises might have people on
them, is not burglary of the first degree because it
does not carry the peculiar risks of violence and
resulting injury which inhere in the burglary of a
home. [T]he fact that a building is used as a home
. . . increases such danger: a person is more likely to
react violently to burglary of his living quarters than
to burglary of other places because in the former
case persons close to him are more likely to be pres-
ent, because the property threatened is more likely to
belong to him, and because the home is usually
regarded as a particularly private sanctuary, even as
an extension of the person.
UNITED STATES v. PARK 8269
People v. Rodriguez, 18 Cal. Rptr. 3d 550, 558 (Ct. App.
2004) (emphases added) (internal citations and quotation
marks omitted). Stated otherwise, the ususal or ordinary first-
degree burglary in California involves conduct that presents
a serious risk of physical violence and injury to others. Under
James, this is precisely what is required to satisfy the first step
of the categorical approach. See 550 U.S. at 202; U.S.S.G.
§ 4B1.2(a).
B.
[5] Turning to the second step of the categorical test—the
“roughly similar” step—we conclude that California first-
degree burglary is “roughly similar” to the enumerated
offenses listed in the first part of section 4B1.2(a)’s residual
clause because this offense “typically” involves “purposeful,
violent, and aggressive conduct.” See Begay, 553 U.S. at 145.
Under this step, it is helpful to understand that “[i]n many
cases the purposeful, violent, and aggressive inquiry will be
redundant with the inquiry into risk.” Sykes, 2011 WL
2224437, at *9. This is so because “crimes that fall within the
former formulation and those that present serious potential
risks of physical injury to others tend to be one and the same.”
Id. Thus, as we explained in Terrell, “it is hard to imagine that
a state’s ‘burglary’ definition would not be at least ‘roughly
similar’ to generic ‘burglary.’ ” 593 F.3d at 1094. This is
especially true, where the state statute requires burglary of an
inhabited “dwelling,” as California’s statute does. See
U.S.S.G. § 4B1.2(a); Cal. Penal Code § 460.
According to Park, California first-degree burglary is not
“roughly similar” to generic burglary because the former
encompasses entry into movable structures and because it
does not require an unlawful entry. In Terrell, however, we
reasoned that “a burglar’s entry into movable buildings typi-
cally involves, much like generic burglary, . . . purposeful,
violent, and aggressive conduct.” 593 F.3d at 1094 (internal
quotation marks omitted). Additionally, while California resi-
8270 UNITED STATES v. PARK
dential burglary “does not require ‘unlawful entry’ ” in the
generic sense, it “still requires ‘entry,’ making it even more
like generic burglary than” the attempted burglary statute that
the Court addressed in James. See id. at 1095. Accordingly,
we reject Park’s argument that California first-degree bur-
glary is not sufficiently similar to the generic offense.
III.
[6] A violation of California’s first-degree burglary statute
is a “crime of violence” under U.S.S.G. § 4B1.2(a)’s residual
clause. We therefore vacate Park’s sentence and remand for
resentencing so that the district court can accurately calculate
the correct Sentencing Guidelines range. See Gall v. United
States, 552 U.S. 38, 51 (2007) (explaining that a district court
commits procedural error if it incorrectly calculates the appli-
cable Guidelines range).
REVERSED, VACATED, AND REMANDED FOR
RESENTENCING.