FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 05-50170
Plaintiff-Appellee,
D.C. No.
v.
CR-04-02175-RTB
GUILLERMO AGUILA-MONTES DE
ORDER AND
OCA,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued February 9, 2006
Submitted February 29, 2008
Pasadena, California
Filed January 20, 2009
Before: David R. Thompson, Thomas G. Nelson, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Thompson;
Dissent by Judge Gould
749
UNITED STATES v. AGUILA-MONTES 751
COUNSEL
Vincent J. Brunkow, San Diego, California, for the appellant.
Steven E. Stone, Assistant United States Attorney, San Diego,
California, for the appellee.
ORDER
The defendant-appellant’s petition for rehearing, filed May
27, 2008, is GRANTED.
Judge Gould dissents and would deny the petition for
rehearing.
The Opinion previously filed April 28, 2008, and published
at 523 F.3d 1071, is withdrawn, and the Opinion filed with
this Order is filed in its stead.
752 UNITED STATES v. AGUILA-MONTES
OPINION
THOMPSON, Senior Circuit Judge:
Guillermo Aguila-Montes De Oca (“Aguila-Montes”)
appeals the sentence imposed upon him for attempting to
reenter the United States following deportation, in violation of
8 U.S.C. § 1326. Aguila-Montes challenges the district court’s
sixteen-level sentence enhancement resulting from the court’s
determination that his prior conviction for first degree resi-
dential burglary, in violation of section 459 of the California
Penal Code, constituted a crime of violence under section
2L1.2(b)(1)(A) of the United States Sentencing Guidelines
(“Guidelines”).1 We have jurisdiction under 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a). We conclude that Aguila-Montes’s
prior California burglary conviction did not constitute a crime
of violence under the Guidelines, and remand to the district
court to impose a sentence without that sixteen-level enhance-
ment.
I. Background
Aguila-Montes, a Mexican citizen, queued up at the San
Ysidro Point of Entry on July 5, 2004. Customs and Border
Protection officers arrested him after verifying by computer
that he was a deported alien. The government charged him
with violating 8 U.S.C. § 1326 by attempting to reenter the
United States. A jury convicted him, and the district court
sentenced him to 120 months in prison and two years of
supervised release.
During sentencing, the district court determined that
1
Although Aguila-Montes also raised a constitutional challenge to his
sentence, and appealed the underlying conviction, this opinion addresses
only the district court’s decision to apply the sixteen-level sentence
enhancement. We considered Aguila-Montes’s other appellate arguments
in a separate memorandum disposition filed April 28, 2008.
UNITED STATES v. AGUILA-MONTES 753
Aguila-Montes had previously been convicted of a crime of
violence as defined by section 2L1.2 of the Guidelines, and
for that reason enhanced his sentence sixteen levels. The prior
conviction was from 1988, when Aguila-Montes pleaded
guilty to first degree residential burglary in violation of sec-
tion 459 of the California Penal Code. Aguila-Montes argues
that because this 1988 state conviction could have been based
upon criminal liability for conduct not included within the
definition of burglary of a dwelling in section 2L1.2 of the
Guidelines, the district court erred in applying the sixteen-
level sentence enhancement. We agree.2
II. Discussion
A. Legal Framework
Section 2L1.2 of the Guidelines addresses sentencing for
the crime of unlawfully entering or remaining in the United
States. It provides sentencing enhancements based on prior
convictions for other offenses. Subsection (b)(1) lists the
predicate offenses and their corresponding enhancements. It
provides a sixteen-level enhancement for a prior “crime of
violence.” U.S. Sentencing Guidelines Manual
§ 2L1.2(b)(1)(A) (2006). The Guidelines’ application notes
specifically state that “burglary of a dwelling” constitutes a
crime of violence. Id. § 2L1.2 cmt. n.1(B)(iii).
Aguila-Montes disputes the district court’s determination
that his 1988 California conviction for first degree residential
burglary constituted burglary of a dwelling, a crime of vio-
lence under the Guidelines.
“The sentencing judge’s application of the Sentencing
Guidelines, including whether a prior conviction is a ‘crime
2
We do not consider Aguila-Montes’s argument that his 1988 state con-
viction should not be considered because it could have been based upon
aider and abettor liability.
754 UNITED STATES v. AGUILA-MONTES
of violence’ . . . for the purposes of U.S.S.G. § 2L1.2, is
reviewed de novo.” United States v. Rodriguez-Rodriguez,
393 F.3d 849, 856 (9th Cir. 2005) (citing United States v.
Bonilla-Montenegro, 331 F.3d 1047, 1049 (9th Cir. 2003)).
To determine whether Aguila-Montes’s prior conviction qual-
ifies as burglary of a dwelling under the Guidelines, we use
the analytical approach outlined in Taylor v. United States,
495 U.S. 575 (1990). See United States v. Wenner, 351 F.3d
969, 972 (9th Cir. 2003) (citing United States v. Becker, 919
F.2d 568, 570 (9th Cir. 1990)).
A Taylor analysis requires a comparison between the
defendant’s prior conviction (in this case, California residen-
tial burglary) and the offense incorporated into the Guidelines
(burglary of a dwelling); if the elements of the two match,
sentencing enhancement is proper. See id.
Using the categorical approach, we determine whether all
convictions under California’s residential burglary statute
constitute burglary of a dwelling under the Guidelines. See id.
Using the modified categorical approach, we additionally con-
sider “the ‘charging document, written plea agreement, tran-
script of plea colloquy, and any explicit factual finding by the
trial judge to which the defendant assented.’ ” See United
States v. Almazan-Becerra, 482 F.3d 1085, 1088 (9th Cir.
2007) (quoting Shepard v. United States, 544 U.S. 13, 16
(2005)); Wenner, 351 F.3d at 972. We may also consider
“comparable” judicial records, such as a court clerk’s appro-
priate minute order. See United States v. Snellenberger, 548
F.3d 699, 701-702 (9th Cir. 2008), citing Shepard, 544 U.S.
at 26.
Because burglary of a dwelling under the Guidelines is the
object of comparison in both approaches, its definition is criti-
cal to the analysis. See United States v. Corona-Sanchez, 291
F.3d 1201, 1204 (9th Cir. 2002) (en banc).
[1] As a starting point in defining burglary of a dwelling,
we know that the Guidelines do not simply incorporate the
UNITED STATES v. AGUILA-MONTES 755
convicting state’s formulation of that offense. See id. at 1205
(citing Taylor, 495 U.S. at 590-91). Instead, “when Congress
described predicate offenses, it meant to incorporate ‘the
generic sense in which the term is now used in the criminal
codes of most States.’ ” Id. (quoting Taylor, 495 U.S. at 598).
Thus, burglary of a dwelling under the Guidelines takes on its
generic, contemporary meaning, and includes the following
elements: the “ ‘unlawful or unprivileged entry into, or
remaining in, a building or other structure [that is a dwelling],
with intent to commit a crime.’ ” See Rodriguez-Rodriguez,
393 F.3d at 852 (quoting Taylor, 495 U.S. at 598; Wenner,
351 F.3d at 973).
B. Categorical Approach
[2] A categorical match between Aguila-Montes’s Califor-
nia conviction for residential burglary and the generic Guide-
lines offense of burglary of a dwelling is lacking because the
California offense encompasses a broader range of proscribed
conduct than does the generic offense of the Guidelines. The
California statute does not require that the entry be “unlawful
or unprivileged.” Rodriguez-Rodriguez, 393 F.3d at 857. The
Guidelines’ offense has that requirement. Consequently,
Aguila-Montes’s California conviction for first degree resi-
dential burglary cannot categorically constitute a conviction
for the generic Guidelines offense of burglary of a dwelling.
C. Modified Categorical Approach
In the absence of a categorical match, we typically would
next consider whether certain documents in the record or judi-
cially noticeable facts show that Aguila-Montes’s prior Cali-
fornia conviction constituted generic burglary of a dwelling
under the Guidelines. However, consistent with our en banc
decision in United States v. Navarro-Lopez, 503 F.3d 1063,
1073 (9th Cir. 2007), we may not apply a modified categori-
cal approach in this case because the state crime of which
756 UNITED STATES v. AGUILA-MONTES
Aguila-Montes was convicted lacks an element of the generic
crime of the Guidelines.
In Navarro-Lopez, the defendant pleaded guilty to one
count of California Penal Code section 32, accessory after the
fact. Navarro-Lopez, 503 F.3d at 1066. Navarro-Lopez was
sentenced to 270 days in jail and three years probation. Id.
When he later tried to re-enter the United States after a trip
to Mexico, he was denied entry and detained. Id. The Immi-
gration and Naturalization Service (“INS”) charged Navarro-
Lopez with being inadmissible because, inter alia, he had
been convicted of a crime involving moral turpitude under 8
U.S.C. § 1182(a)(2)(A)(i)(I). Id. The IJ agreed and held that
the California conviction constituted a crime involving moral
turpitude under federal law. The BIA affirmed. The California
crime of conviction provided:
Every person who, after a felony has been commit-
ted, harbors, conceals or aids a principal in such fel-
ony, with the intent that said principal may avoid or
escape from arrest, trial, conviction or punishment,
having knowledge that said principal has committed
such felony or has been charged with such felony or
convicted thereof, is an accessory to such felony.
Cal. Penal Code § 32.
When we considered Navarro-Lopez’s petition for review,
we determined that, because California Penal Code section 32
did not include any element of baseness, vileness, or deprav-
ity, a conviction under that statute could never constitute a
crime involving moral turpitude under 8 U.S.C.
§ 1182(a)(2)(A)(i)(I). Even if Navarro-Lopez had admitted he
committed base, vile or depraved acts in violating the Califor-
nia statute, such an admission could not modify the elements
of the state crime. Navarro-Lopez, 503 F.3d at 1073. We
stated that the state “crime of conviction can never be nar-
rowed to conform to the [federal] generic crime because the
UNITED STATES v. AGUILA-MONTES 757
[state court jury] is not required — as Taylor mandates — to
find all the elements of the [federal] generic crime.” Id.
[3] Here, the California residential burglary crime of con-
viction, California Penal Code § 459, requires (1) entry, (2)
into any building or other listed structure, (3) with intent to
commit larceny or any felony. People v. Davis, 958 P.2d 1083
(Cal. 1998) (citing Cal. Pen. Code § 459). The Guidelines’
generic crime of burglary requires (1) entry, (2) which is
unlawful or unprivileged, (3) into a building or structure, (4)
with intent to commit a crime. Shepard, 544 U.S. at 29 (citing
Taylor, 495 U.S. at 598-99). In addition to the elements
required by the applicable California burglary statute, generic
burglary under the Guidelines also requires that the entry be
“unlawful or unprivileged.” Cal. Pen. Code § 459. Even if we
were to undertake a modified categorical approach, we could
not narrow the California statute by amending it to include the
restrictive elements of the Guidelines’ generic offense —
namely, that the entry must have been “unlawful or unprivi-
leged.”
[4] Thus, we may not apply a modified categorical
approach. Applying simply a categorical approach, Aguila-
Montes’s California predicate conviction of first degree resi-
dential burglary does not match the generic offense of bur-
glary of a dwelling under the Guidelines. His sentence,
therefore, was improperly enhanced sixteen levels.
III. Conclusion
[5] Because California Penal Code section 459 does not
require that an entry in the burglary context be “unlawful or
unprivileged,” the California statute lacks an element included
in the generic definition of burglary of a dwelling incorpo-
rated into the Guidelines. Using a categorical approach, the
two offenses do not “match.” The modified categorical
approach may not be applied to establish the missing element,
and as a result, Aguila-Montes’s state conviction of first
758 UNITED STATES v. AGUILA-MONTES
degree residential burglary is not a prior conviction of a crime
of violence under section 2L1.2(b)(1)(A) of the Guidelines.
The district court improperly applied the sixteen-level sen-
tence enhancement. We vacate the sentence imposed by the
district court, and remand for the imposition of a new sen-
tence.
REMANDED.
GOULD, Circuit Judge, dissenting:
I respectfully dissent, believing that the application of
United States v. Navarro-Lopez, 503 F.3d 1063 (9th Cir.
2007) to the California burglary statute here is inconsistent
with the scope intended by the United States Supreme Court
for its doctrine of modified categorical analysis, as outlined in
Taylor v. United States, 495 U.S. 575, 599, 602 (1990).