FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 05-10475
Plaintiff-Appellee, D.C. No.
v. CR-04-2415-TUC-
HECTOR REINA-RODRIGUEZ, DCB
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted
June 12, 2006—San Francisco, California
Filed November 15, 2006
Before: Procter Hug, Jr. and Diarmuid F. O’Scannlain,
Circuit Judges, and Roger T. Benitez,* District Judge.
Opinion by Judge Benitez
*The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
18573
18576 UNITED STATES v. REINA-RODRIGUEZ
COUNSEL
Christopher R. Kilburn and Brian I. Rademacher, Assistant
Federal Public Defenders, Tucson, Arizona, for the defendant-
appellant.
Elizabeth Berenguer, Assistant United States Attorney, Tuc-
son, Arizona, for the plaintiff-appellee.
UNITED STATES v. REINA-RODRIGUEZ 18577
OPINION
BENITEZ, District Judge:
Hector Reina-Rodriguez (“Reina-Rodriguez”) appeals his
sentence of fifty-one months imprisonment following a con-
viction for illegal reentry after deportation in violation of 8
U.S.C. § 1326. He argues that application of a sixteen-level
enhancement under the United States Sentencing Guidelines
(“Guidelines”) for his prior conviction in Utah was erroneous.1
He also argues that the district court’s sentence was unreason-
able because it improperly considered, as a factor, that he did
not plead guilty pursuant to a plea agreement. We have juris-
diction under 18 U.S.C. § 3742(a) and 28 U.S.C. §1291, and
affirm.
FACTS
Reina-Rodriguez was found in Arizona after having been
previously deported. He was indicted for illegal reentry in
violation of 8 U.S.C. § 1326. He pled guilty to the indictment
without a plea agreement.
During his change of plea hearing, Reina-Rodriguez admit-
ted that he had a prior felony conviction. He did not admit the
type of conviction or that it was a crime of violence.
At the sentencing hearing, the district court had before it
two documents regarding Reina-Rodriguez’s prior conviction.
The first was the State’s charging document entitled “Infor-
1
We recognize that the Guidelines are now advisory. See United States
v. Booker, 543 U.S. 220 (2005); United States v. Ameline, 409 F.3d 1073
(9th Cir. 2005) (en banc). But, as Booker explained, judges are still
required “to take account of the Guidelines together with other sentencing
goals.” 543 U.S. at 259 (citing 18 U.S.C. § 3553(a)). “It is therefore appro-
priate that we consider whether the district judge correctly interpreted and
applied the guidelines below.” United States v. Guerrero-Velasquez, 434
F.3d 1193, 1195 n.1 (9th Cir. 2006).
18578 UNITED STATES v. REINA-RODRIGUEZ
mation,” and the second was a judgment of conviction entitled
“Minutes Sentence, Judgment, Commitment.”
The “Information,” as amended, read:
Amend 2nd
COUNT 1: AGGRAVATED BURGLARY, a first
degree felony, in violation of Utah Code Ann. § 76-
6-203, as follows: That HECTOR AFEN REYNA-
RODRIGUEZ . . . entered or remained unlawfully in
a building or any portion of a building located at
2521 Gramercy with intent to commit a felony or
theft or . . . an assault . . . and in the course of
attempting, committing, or fleeing from said bur-
glary . . . (b) used or threatened the immediate use
of a dangerous weapon, or (c) possessed or
attempted to use any explosive or dangerous weapon
and/or intentionally did aid, assist, encourage, com-
mand or solicit another to do the same.
(Boldface type and strike-through in original). Thus, as
amended, the first line of the “Information” read: “Burglary,
a 2nd degree felony.” The judgment of conviction stated that
Reina-Rodriguez pled guilty to “Burglary (amended)—2nd
Degree Felony.”2
The court also had before it the Pre-Sentence Report
(“PSR”), which concluded that Reina-Rodriguez’s prior con-
viction was a crime of violence under the Guidelines. Accord-
ingly, the PSR recommended a 16-level enhancement.3
2
The document also showed that Reina-Rodriguez was sentenced to a
suspended term of one to fifteen years in prison, 365 days jail time, and
three years probation.
3
As further explained below, Section 2L1.2 of the Guidelines provides
that “[i]f the defendant previously was deported, or unlawfully remained
in the United States, after — (A) a conviction for a felony that is . . . (ii)
a crime of violence . . . increase by 16 levels.” U.S.S.G.
§ 2L1.2(b)(1)(A)(ii).
UNITED STATES v. REINA-RODRIGUEZ 18579
Reina-Rodriguez objected to the PSR’s finding that his
prior conviction was a crime of violence. The district court
overruled Reina-Rodriguez’s objection.4 In sentencing Reina-
Rodriguez, the district court recognized that the Guidelines
were advisory. The court found that the base level for a con-
viction under 8 U.S.C. § 1326 is eight. It increased the base
level by 16, however, based on Reina-Rodriguez’s prior con-
viction. The district court then decreased the offense level by
three for acceptance of responsibility, and concluded that 21
was the correct offense level. The court next determined
Reina-Rodriguez to be in a criminal history category IV,
which placed Reina-Rodriguez in a 57 to 71 month range.
After consulting the Guidelines, the district court consid-
ered the factors under 8 U.S.C. § 3553(a) and concluded:
“since Reina-Rodriguez does plead guilty, did not take the
case to trial, that a sentence of—a non-guideline sentence
somewhere below the guidelines, but above the plea range,
had he taken a plea agreement, might be appropriate in the
case just for uniformity purposes.” In that regard, the court
said:
I have to show respect to the plea process. Obviously
if a court sentences the defendant to the same sen-
tence he would have had, had he taken a plea agree-
ment, then there is no compelling reason for any
defendant to take the plea offer.
4
The district court initially found that Reina-Rodriguez’s prior convic-
tion was not categorically a crime of violence under the Guidelines. But,
after applying the modified categorical approach, the district court con-
cluded that Reina-Rodriguez’s prior conviction constituted a “crime of
violence” under the Guidelines. Subsequently, ruling on Reina-
Rodriguez’s Motion To Correct Sentence, the district court appeared to
find that Reina-Rodriguez’s Utah burglary conviction was categorically a
crime of violence under the Guidelines. On appeal, however, “[w]e may
affirm on any ground supported by the record even if it differs from the
rationale of the district court.” Washington v. Lampert, 422 F.3d 864, 869
(9th Cir. 2005) (citation omitted).
18580 UNITED STATES v. REINA-RODRIGUEZ
The court sentenced Reina-Rodriguez to 51 months, 3 years
supervised release, and assessed a $100 fine.
STANDARD OF REVIEW
In reviewing a sentence, “the first step is to determine if the
district court made a material error in its Guidelines calcula-
tion that serves as the starting point for its sentencing deci-
sion.” United States v. Kilby, 443 F.3d 1135, 1140 (9th Cir.
2006) (citing United States v. Cantrell, 433 F.3d 1269, 1280
(9th Cir. 2006)). This court reviews “de novo a district court’s
decision that a prior conviction is a crime of violence under
the Sentencing Guidelines.” United States v. Velasquez-Reyes,
427 F.3d 1227, 1229 (9th Cir. 2005) (citing United States v.
Rivera-Sanchez, 247 F.3d 905, 907 (9th Cir. 2001) (en banc)).
A district court’s conclusion that a prior conviction may be
used for purposes of sentencing enhancement is also reviewed
de novo. See United States v. Gallaher, 275 F.3d 784, 790
(9th Cir. 2001) (citation omitted).
REINA-RODRIGUEZ’S UTAH BURGLARY
CONVICTION JUSTIFIES A 16-LEVEL
ENHANCEMENT UNDER U.S.S.G. § 2L1.2(b)(1)(A).
[1] “Section 2L1.2(b)(1)(A)(ii) provides for a 16-level
enhancement if [a] defendant [convicted of illegal entry] has
a prior conviction for a crime of violence.” Velasquez-Reyes,
427 F.3d at 1229; see also United States v. Rodriguez-
Rodriguez, 393 F.3d 849, 851 (9th Cir. 2005) (citation omit-
ted). Under the Application Notes5 to Section
2L1.2(b)(1)(A)(ii), a “crime of violence” includes “burglary
of a dwelling or any offense under federal, state, or local law
that has as an element the use, attempted use, or threatened
5
In so far as we are considering whether the district judge correctly
interpreted and applied the guidelines below “[w]e are bound to follow the
application notes.” United States v. Lopez-Garcia, 316 F.3d 967, 970 (9th
Cir. 2003) (citation omitted).
UNITED STATES v. REINA-RODRIGUEZ 18581
use of physical force against the person of another.” U.S.S.G.
§ 2L1.2 application n.1(B)(iii).6 Moreover, an attempt to com-
mit these crimes of violence is itself a crime of violence. Id.
§ 2L1.2 application n.5.
We must now determine whether Reina-Rodriguez’s prior
conviction fits the definition of a “crime of violence” under
the Guidelines. See, e.g., Rodriguez-Rodriguez, 393 F.3d at
852 (“Although the application note specifically includes
‘burglary of a dwelling’ in the definition of ‘crime of vio-
lence,’ a conviction for burglary of a dwelling must meet the
generic, uniform definition of burglary to fall under the defi-
nition of ‘burglary of a dwelling.’ ” (citations omitted)). We
determine this by employing two methods: (1) the categorical
approach; and (2) the “modified” categorical approach. See
United States v. Wenner, 351 F.3d 969, 972 (9th Cir. 2003).
1. Categorical Approach
Using the categorical approach, we look “only to the fact
of conviction and the statutory definition of the prior offense.”
Taylor v. United States, 495 U.S. 575, 602 (1990) (citations
omitted); see also United States v. De La Fuente, 353 F.3d
766, 770 (9th Cir. 2003) (citations omitted). In doing so, we
are bound by the state court’s interpretation of the statute. See
Guaranty Trust Co. v. Blodgett, 287 U.S. 509, 513 (1933)
(citations omitted).
[2] Reina-Rodriguez was convicted in Utah of a felony bur-
glary in the second degree. Utah statutes provide that one can
be convicted of felony burglary in the second degree if one
6
Under the Application Notes to Section 2L1.2(b)(1)(A)(ii), a “crime of
violence” also includes crimes that are not relevant to our analysis, i.e.,
“murder, manslaughter, kidnapping, aggravated assault, forcible sex
offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion,
extortionate extension of credit . . . .” U.S.S.G. § 2L1.2 application
n.1((B)(iii).
18582 UNITED STATES v. REINA-RODRIGUEZ
commits: (1) an attempted aggravated burglary; or (2) a bur-
glary of a dwelling. Specifically, under Utah’s general bur-
glary statute, “[a]n actor is guilty of burglary if he enters or
remains unlawfully in a building or any portion of a building
with intent to commit [a crime].” Utah Code Ann. § 76-6-
202(1). If the actor commits the burglary “in a dwelling . . .
it is a felony of the second degree.” Id. § 76-6-202(2). Fur-
ther, in Utah, a person is “guilty of aggravated burglary if in
attempting, committing, or fleeing from a burglary the actor
or another participant in the crime”: (a) causes bodily injury
to any person . . . ; (b) uses or threatens the immediate use of
a dangerous weapon against any person . . . ; or (c) possesses
or attempts to use any explosive or dangerous weapon. Id.
§ 76-6-203 (“Aggravated burglary”).
[3] “Aggravated burglary . . . is a first degree felony regard-
less of whether a dwelling is involved.” State v. Porter, 705
P.2d 1174, 1178 (Utah 1985) (citation omitted). However,
“attempted aggravated burglary [is] a felony of the second
degree . . . .” State v. Harding, 576 P.2d 1284 (Utah 1978);
see also Utah Code Ann. § 76-4-102(2) (attempt to commit a
first degree felony, other than murder, kidnaping, or a sexual
offense, is a second degree felony).
Against this backdrop, we must now determine whether the
“full range of conduct encompassed” or prohibited by Utah’s
statute of conviction for felony burglary in the second degree
fits a “crime of violence” under the Guidelines. Kepilino v.
Gonzales, 454 F.3d 1057, 1061 (9th Cir. 2006) (citing
Cuevas-Gasper v. Gonzales, 430 F.3d 1013, 1018 (9th Cir.
2005)). In other words, in order for Reina-Rodriguez’s prior
conviction to categorically fit a “crime of violence” under the
Guidelines, the full range of conduct proscribed by Utah’s
statute of conviction for burglary of a dwelling or an
attempted aggravated burglary must both fall within that defi-
nition.
[4] A “crime of violence” under the Guidelines includes
“burglary of a dwelling.” U.S.S.G. § 2L1.2 application
UNITED STATES v. REINA-RODRIGUEZ 18583
n.1(B)(iii). Reina-Rodriguez’s conviction for burglary in the
second degree does not categorically fit “burglary of a dwell-
ing” under the Guidelines because, in Utah, a conviction for
an attempted aggravated burglary does not require an entry
into a dwelling. Porter, 705 P.2d at 1178; State v. Harley, 982
P.2d 1145, 1147 (Utah App. 1999). See also Wenner, 351
F.3d at 972. Thus, one convicted of felony burglary in the sec-
ond degree resulting from an attempted aggravated burglary
of a non-dwelling could not have categorically committed a
“crime of violence” under the Guidelines.
[5] Under the Guidelines, a “crime of violence” also
includes “any offense under . . . state . . . law that has as an
element the use, attempted use, or threatened use of physical
force against the person of another.” U.S.S.G. § 2L1.2 appli-
cation n.1(B)(iii). An attempt to commit this crime is also a
crime of violence. Id. § 2L1.2 application n.5. However,
under Utah law, one can be convicted of attempted aggravated
burglary for merely possessing a dangerous weapon while
committing or attempting to commit a burglary. See Utah
Code Ann. § 76-6-203. “[M]erely possessing a weapon
doesn’t involve the use, attempted use or threatened use of
physical force . . . .” United States v. Serna, 435 F.3d 1046,
1047 (9th Cir. 2006).7 Thus, Utah’s statute of conviction for
attempted aggravated burglary still criminalizes a broader
range of conduct than would constitute a crime of violence
under § 2L1.2. Consequently, we cannot say based on the fact
of conviction and the statutory definition of a Utah felony
burglary in the second degree that Reina-Rodriguez’s prior
7
The Serna opinion states “Our case law holds that possession of a
weapon not required to be registered can nevertheless be a crime of vio-
lence depending on the context.” Serna, 435 F.3d at 1049. However both
Serna and the case cited for the proposition, United States v. Young, 990
F.2d 469 ((9th Cir. 1993), were interpreting the career criminal guideline,
§ 4B1.2. That guideline defines a crime of violence to include “conduct
that presents a serious risk of physical injury to another.” That language
is not in the guideline involved in this case.
18584 UNITED STATES v. REINA-RODRIGUEZ
conviction was categorically a “crime of violence” under the
Guidelines.
2. Modified Categorical Approach
[6] “If the statute reaches both conduct that would consti-
tute a crime of violence and conduct that would not, we turn
to a modified categorical approach, which allows us to exam-
ine documentation or judicially noticeable facts that clearly
establish that the defendant’s actual offense qualifies as a
crime of violence.” De La Fuente, 353 F.3d at 770 (citation
omitted).
Our review under the modified categorical approach is lim-
ited. “The purpose of the modified categorical approach is to
make the requisite determination respecting the nature of a
prior conviction without resorting to the type of mini-trials . . .
deem[ed] to be wholly inappropriate in this context.” Parrilla
v. Gonzales, 414 F.3d 1038, 1043 (9th Cir. 2005) (citations
and internal quotations omitted). “In keeping with this pur-
pose . . . [the court’s] inquiry is ‘generally limited to examin-
ing the statutory definition, charging document, written plea
agreement, transcript of plea colloquy, and any explicit fac-
tual finding by the trial judge to which the defendant assent-
ed.’ ” Id. (quoting Shepard v. United States, 544 U.S. 13, 16
(2005)) (citation omitted).
[7] Here, there are two documents that we can appropri-
ately review regarding Reina-Rodriguez’s prior conviction in
Utah—the State’s charging document and the judgment of
conviction. See United States v. Bonat, 106 F.3d 1472, 1476
(9th Cir. 1997) (“We have previously decided that in deter-
mining if a defendant pled guilty to generic burglary, consid-
ering the indictment and the judgment of conviction does not
constitute a factual inquiry forbidden by Taylor.”) (citation
omitted).8 We interpret these documents using common sense.
8
Reina-Rodriguez argues that the district court erred by not solely rely-
ing on the State’s charging document and judgment of conviction. The
UNITED STATES v. REINA-RODRIGUEZ 18585
See United States v. Giese, 597 F.2d 1170, 1178 (9th Cir.
1979) (“An indictment is not to be read in a technical manner,
but it is to be construed according to common sense with an
appreciation of existing realities.”) (citations omitted).
The State’s charging document, as amended, reads: “Bur-
glary, a 2nd degree felony . . . .” The judgment of conviction
states that Reina-Rodriguez pled guilty to “Burglary
(amended)- 2nd Degree Felony.”
[8] Arguably, it is not entirely clear whether Reina-
Rodriguez’s conviction resulted from an attempted aggravated
burglary or a burglary of a dwelling. But, tellingly, the word
“AGGRAVATED,” which appeared in the initial charging
document, was intentionally stricken from the amended
charging document. If Reina-Rodriguez was pleading to an
attempted aggravated burglary the word “AGGRAVATED”
would not have been intentionally stricken. Furthermore, the
word “attempted” would appear somewhere in front of the
word aggravated; it does not. Interpreting the state’s charging
document in a common sense fashion eliminates the possibil-
ity that Reina-Rodriguez’s conviction for felony burglary in
the second degree resulted from an attempted aggravated bur-
glary. Therefore, inasmuch as Reina-Rodriguez was convicted
of felony burglary in the second degree under Utah law, but
not of an attempted aggravated burglary, he was necessarily
and unequivocally convicted of burglary of a dwelling. See
Utah Code Ann. § 76-6-202(2) (“Burglary is a felony of the
third degree unless it [is] committed in a dwelling, in which
event it is a felony of the second degree.”).
record shows that the district court sua sponte “did a check of the public
property records in Utah,” and concluded that the address listed in the
State’s charging document was “in fact, a single resident building” and
that Reina-Rodriguez was “charged with the burglary of a residence.”
Since we find that the State’s charging document and judgment of convic-
tion are sufficient for our analysis, we do not address Reina-Rodriguez’s
argument.
18586 UNITED STATES v. REINA-RODRIGUEZ
Burglary of a dwelling under Utah law categorically fits the
Guidelines’ definition of burglary of a dwelling. In Taylor,
the Supreme Court defined burglary for sentencing enhance-
ment purposes. 495 U.S. at 598. Under Taylor, burglary is “an
unlawful or unprivileged entry into, or remaining in, a build-
ing or other structure, with intent to commit a crime.” Taylor,
495 U.S. at 598. “The definition of ‘burglary of a dwelling’
[under the Guidelines] is the same as the Taylor definition of
burglary, with the narrowing qualification that the burglary
occur in a dwelling.” Rodriguez-Rodriguez, 393 F.3d at 857
(citation and internal quotations omitted); see also Wenner,
351 F.3d at 973 (“[T]he most logical and sensible reading of
the Guidelines and the reading that is consistent with our
cases is to construe ‘burglary of a dwelling’ as the Taylor def-
inition of burglary, with the narrowing qualification that the
burglary occur in a dwelling.”).
[9] Burglary of a dwelling under the Guidelines requires: 1)
an unlawful or unprivileged entry into, or remaining in; 2) a
building or structure that constitutes a dwelling; 3) with the
intent to commit a crime. See Rodriguez-Rodriguez, 393 F.3d
at 852 (citing Taylor, 495 U.S. at 598; Wenner, 351 F.3d at
973).
[10] Utah’s burglary of a dwelling statute is virtually iden-
tical to the Guidelines’ definition of “burglary of a dwelling.”
In Utah, an actor is guilty of burglary of a dwelling, or felony
burglary in a second degree, if the actor “enters or remains
unlawfully in a building” that constitutes a “dwelling” with
the intent to commit a crime. Utah Code Ann. § 76-6-202(1)-
(2). Thus, burglary of a dwelling under Utah law constitutes
a “crime of violence” under the Guidelines as it categorically
fits the Guidelines’ definition of “burglary of a dwelling.”
Reina-Rodriguez argues that his burglary conviction does
not constitute burglary of a dwelling under the Guidelines
because Utah courts have held that a burglary conviction does
not require unlawful or unprivileged entry. He relies on the
UNITED STATES v. REINA-RODRIGUEZ 18587
following Utah cases: State v. Rudolph, 970 P.2d 1221 (Utah
1998); State v. Bradley, 752 P.2d 874 (Utah 1988); and State
v. Pitts, 728 P.2d 113 (Utah 1986). Reina-Rodriguez’s argu-
ment lacks merit.
Nonconsensual entry is not an essential ingredient of bur-
glary under the Taylor definition. In fact, Taylor allows for
burglary convictions so long as the defendant formed the
intent to commit a crime while unlawfully remaining on the
premises, regardless of the legality of the entry. See Taylor,
495 U.S. at 598 (defining burglary as “an unlawful or unprivi-
leged entry into, or remaining in, a building or other struc-
ture, with intent to commit a crime”) (emphasis added)). To
hold otherwise would render Taylor’s “remaining in” lan-
guage surplusage. Courts avoid “[i]nterpretive constructions
which render some words surplusage.” In re Eastport Asso-
ciates, 935 F.2d 1071, 1080 (9th Cir. 1991) (quoting Califor-
nia Mfrs. Ass’n v. Public Utils. Comm’n, 598 P.2d 836, 840
(1979)); see also In re Pacific-Atlantic Trading Co., 64 F.3d
1292, 1302 (9th Cir. 1995) (“In construing a statute, a court
should interpret subsections written in the disjunctive as set-
ting out separate and distinct alternatives.”).
It is true that in Bonat this court found that although the
Arizona statute met the definition of generic burglary the Ari-
zona courts had expanded the definition to include a convic-
tion where the intent to commit the crime was formed after
the entry. 106 F.3d at 1475 (citation omitted). In so finding,
Bonat relied on State v. Belcher, 776 P.2d 811 (Ariz. 1989).
The Court of Appeals of Arizona found that
[i]t [was] clear from the evidence that appellant had
the intent to steal the two pair of jeans when he put
them on and then put his own trousers over them in
the fitting room. The requisite intent to commit bur-
glary may be formed after a person enters a store in
all innocence.
18588 UNITED STATES v. REINA-RODRIGUEZ
Id. at 812. Accordingly, under Arizona law, a person may be
convicted of burglary merely by committing the crime of
shoplifting in a building. This court held in Bonat, however,
that under Taylor shoplifting does not meet the generic defini-
tion of burglary and, therefore, does not satisfy the categorical
approach for determining a crime of violence.
The Utah cases on which Reina-Rodriguez relies do not go
as far as the Arizona courts did in Bonat. For example, in
Rudolph, the Utah Supreme Court held that to be convicted of
burglary “the actor must commit or form the intent to commit
another crime at the time he enters or while he remains
unlawfully in the building.” Rudolph, 970 P.2d at 1229
(emphasis in original). Thus, “unauthorized entry” under Utah
law necessarily has the same meaning as “unlawful or unpriv-
ileged entry” in Taylor. Similarly, in Bradley, the defendant
challenged the “sufficiency of the evidence on the conviction
of aggravated burglary,” arguing that “he did not enter the . . .
premises unlawfully, and thus a crucial element of the crime
of burglary was not established.” Bradley, 752 P.2d at 876. In
rejecting the defendant’s argument, the Utah Supreme Court
found that “the jury was well within its province in finding
that defendant entered or remained unlawfully in the . . . home
with the intent to commit an assault” as there was evidence
that consent to defendant’s entry was limited only to a “lawful
purpose.” Id. Lastly, in Pitts, although in dicta, the Utah
Supreme Court found that “[e]ven an innocent entry into the
[premises] would not acquit defendant if he remained therein
with the unlawful purpose.” Pitts, 728 P.2d at 116 (citations
omitted). The court further found that “there was no evidence
that [the defendant’s] entry or presence was with any intent
other than to commit theft.” Id. at 117 (citation omitted).
This court has also held that a “California first degree bur-
glary conviction does not constitute generic burglary because
California Penal Code Sections 459 and 460 do not require
‘unlawful or unprivileged entry’ for a burglary conviction.”
Rodriguez-Rodriguez, 393 F.3d at 852. But significantly, and
UNITED STATES v. REINA-RODRIGUEZ 18589
unlike Utah’s burglary statute, the California’s burglary stat-
utes do not include the “remaining in” language set forth in
Taylor.
Reina-Rodriguez next argues that his conviction is not cate-
gorically a “crime of violence” under the Guidelines because
Utah defines “building” broadly. We disagree. Reina-
Rodriguez correctly argues that Utah defines dwelling as a
building, see Utah Code Ann. § 76-6-201(2), and under Utah
law, a building includes “watercraft” and “aircraft,” which are
not buildings or structures under federal law. See Utah Code
Ann. § 76-6-201(1). See also Taylor, 495 U.S. at 599 (noting
that a few states define burglary more broadly than the federal
definition “by including places . . . other than buildings,” such
as “automobiles, vending machines”); Wenner, 351 F.3d at
972 (“Some things that are dwellings under Washington law
(e.g., fenced areas, railway cars, and cargo containers) are not
buildings or structures under federal law, and so cannot sup-
port a conviction for generic ‘burglary’ under Taylor.”) (cita-
tions omitted). But, although Utah’s burglary statute defines
“building” more broadly than its federal meaning, it limits
“dwelling” to “a building which is usually occupied by a per-
son lodging therein at night . . . .” Utah Code Ann. § 76-6-
201(2). Thus, entering or remaining in an ordinary unoccu-
pied car would not qualify as burglary of a dwelling under the
statute, and the Supreme Court’s concern in Taylor, 495 U.S.
at 591, would not apply.
United States v. Sweeten, 933 F.2d 765 (9th Cir. 1991) is
instructive. In that case, the district court refused to enhance
a sentence based on a prior conviction for “burglary of a habi-
tation” in Texas because Texas defined “habitation” to
include vehicles. The district court concluded that it was not
a conviction for “ ‘burglary’ in a generic sense” under Taylor.
Id. at 767. This court reversed and concluded that the statute
was limited to such vehicles as “trailers, campers, and mobile
homes—whose primary purpose is to serve as a dwelling and
not as a mode of transportation.” Id. at 770. Thus, Sweeten
18590 UNITED STATES v. REINA-RODRIGUEZ
explained that burglary of “a structure or vehicle adapted for
the overnight accommodation of persons” constituted the bur-
glary of a “structure” within the generic definition of Taylor.
Id. at 771. It further explained that “[i]n terms of the potential
harm to persons, . . . burglary of vehicles such as mobile
homes, campers and trailers ‘is analogous to the burglary of
a building or house.’ ” United States v. Sparks, 265 F.3d 825,
834 (9th Cir. 2001) (quoting and explaining Sweeten, 933
F.2d at 771).
The Supreme Court has also explained that Congress cate-
gorized burglary as a crime of violence because of its inherent
potential harm to persons. Specifically, in the course of its
recent examination regarding Congress’ intent in including
the term “burglary” in Section 924(e)(2)(B)(ii), the Supreme
Court noted:
The legislative history . . . indicates that Congress
singled out burglary (as opposed to other frequently
committed property crimes such as larceny and auto
theft) for inclusion as a predicate offense . . . because
of its inherent potential for harm to persons. The fact
that an offender enters a building to commit a crime
often creates the possibility of a violent confronta-
tion between the offender and an occupant, care-
taker, or some other person who comes to
investigate. And the offender’s own awareness of
this possibility may mean that he is prepared to use
violence if necessary to carry out his plans or to
escape.
Taylor, 485 U.S. at 588. These precise factors are present
where a structure is adapted for sleeping or lodging. See
United States v. Becker, 919 F.2d 568, 573 (9th Cir. 1990)
(“The confluence of common sense and precedent lead to the
conclusion that the unauthorized daytime entry of the dwell-
ing of another with the intent to commit a larceny or any fel-
UNITED STATES v. REINA-RODRIGUEZ 18591
ony carries with it a substantial risk that force will be used
against the person or property of another.”).
Moreover, Utah courts have held that Utah’s “second
degree burglary [of a dwelling] statute is intended to protect
people while in places where they are likely to be living and
sleeping overnight.” State v. Cox, 826 P.2d 656, 662 (Utah
1992). See United States v. Tighe, 266 F.3d 1187, 1196 (9th
Cir. 2001) (“A state court’s interpretation of a statute is bind-
ing in determining whether the elements of generic burglary
are present.” (citation omitted)).
We conclude that Utah’s definition of “dwelling” is suffi-
ciently restricted by means of its adaptation requirement to
fall within the strictures set forth in Taylor, and more specifi-
cally to constitute burglary of a dwelling under the Guide-
lines.
[11] In sum, under the modified categorical approach, we
find that Reina-Rodriguez’s prior conviction in Utah for fel-
ony burglary in the second degree resulted from a burglary of
a dwelling. We further find that burglary of a dwelling under
Utah law categorically fits the Guidelines’ definition of “bur-
glary of a dwelling.” Accordingly, the district court did not err
in finding that Reina-Rodriguez’s burglary conviction in Utah
warranted a 16-level enhancement under Section 2L1.2(b)(1)
(A)(ii).
THE DISTRICT COURT’S SENTENCE WAS NOT
UNREASONABLE
Reina-Rodriguez argues that his sentence was unreasonable
because in its sentencing the district court considered as a fac-
tor that he did not plead guilty pursuant to a plea agreement.
After Booker, this court reviews sentences “for reasonable-
ness . . . even when these sentences are within the Guidelines
ranges.” United v. Marcial-Santiago, 447 F.3d 715, 717 (9th
Cir. 2006) (citation omitted). “In conducting this review, [this
18592 UNITED STATES v. REINA-RODRIGUEZ
court] consider[s] whether the district court accurately calcu-
lated the Guidelines range and, if it did, whether the sentence
is reasonable in light of the sentencing factors set forth in 18
U.S.C. § 3553(a).” Id.9
Here, the district court accurately calculated the Guidelines
range. Reina-Rodriguez was convicted of violating 8 U.S.C.
§ 1326. The applicable sentencing guideline for a violation of
that statute provides:
Unlawfully Entering or Remaining in the United
States
(a) Base Offense Level: 8
(b) Specific Offense Characteristics
(1) Apply the Greatest:
If the defendant previously was deported,
or unlawfully remained in the United
States, after—
(A) . . . (ii) a crime of violence, . . . increase
by 16 levels.
(boldface type in original). As explained above, the district
court correctly determined that Reina-Rodriguez’s prior bur-
glary conviction in Utah was a “crime of violence” under the
9
Section 3553(a) factors include: (1) the nature and circumstances of the
offense and the history and characteristics of the defendant; (2) the need
for the sentence imposed; (3) the kinds of sentences available; (4) the
kinds of sentences and the sentencing range established by the Sentencing
Guidelines; (5) pertinent policy statements issued by the Sentencing Com-
mission; (6) the need to avoid unwarranted sentencing disparities among
defendants who have similar criminal records and have been found guilty
of similar conduct; and (7) the need to provide restitution to victims. 18
U.S.C. § 3353(a).
UNITED STATES v. REINA-RODRIGUEZ 18593
Guidelines. Thus, the district court correctly determined
Reina-Rodriguez’s offense level as 21 (Base Offense (8) +
Specific Offense Characteristics (16) - Acceptance of Respon-
sibility (3) = 21). Also, given the district court’s uncontested
finding that Reina-Rodriguez’s criminal history category was
IV, the district court correctly determined that Reina-
Rodriguez’s resulting sentencing range was 57 to 71 months.
See U.S.S.G. ch. 5, pt. A.
Moreover, the district court’s sentence was not unreason-
able. The district court noted that the Guidelines’ ranges were
advisory, analyzed and rejected Reina-Rodriguez’s various
arguments, and considered the Section 3553(a) factors. The
district court considered Reina-Rodriguez’s history and char-
acteristics, which were described in the PSR; the need to pro-
mote respect for the law while providing appropriate
punishment; and the now-advisory Guidelines range of 57-71
months. After completing this review, the court imposed a
sentence that was below the Guidelines range, in part, because
Reina-Rodriguez pled “guilty.”
[12] That the district court considered Reina-Rodriguez did
not plead guilty pursuant to a plea agreement did not render
his sentence unreasonable. The district court simply noted that
the sentence would have been lower “had [Reina-Rodriguez]
taken a plea agreement . . . for uniformity purposes.” As the
district court explained, Reina-Rodriguez “retain[ed] his right
of appeal, and so he [did] not get the motion from the govern-
ment” for a reduction of his offense level. The district court
explained it had to “show respect to the plea process. Obvi-
ously if a court sentences the defendant to the same sentence
he would have had, had he taken a plea agreement, then there
is no compelling reason for any defendant to take the plea
offer.” The district court did not err. See Marcial-Santiago,
447 F.3d at 719 (“[W]e conclude that the disparity between
Appellants’ sentences and the sentences imposed on
similarly-situated defendants who are prosecuted in fast-track
districts is not unwarranted. It is justified by the benefits
18594 UNITED STATES v. REINA-RODRIGUEZ
gained by the government when defendants plead guilty early
in criminal proceedings.”). We conclude that the sentence
Reina-Rodriguez received was reasonable, and will not here
disturb the discretion of the sentencing court.
AFFIRMED.