United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 25, 2007
Charles R. Fulbruge III
Clerk
No. 06-40493
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HUMBERTO ORTEGA-GONZAGA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
--------------------
Before HIGGINBOTHAM, DAVIS, and WIENER, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Defendant Humberto Ortega-Gonzalez pleaded guilty to
reentering the United States following deportation. The district
court imposed a 16-level increase in his sentence, concluding that
Ortega’s previous California conviction for burglary, CAL. PENAL CODE
§ 459, was a “crime of violence” under U.S.S.G. § 2L1.2. Ortega
challenges that conclusion,1 which we review de novo. See United
States v. Dominguez-Ochoa, 386 F.3d 639, 641 (5th Cir. 2004).
U.S.S.G. § 2L1.2 provides for a 16-level increase if the
defendant was deported following a “crime of violence.” The
1
Ortega also challenges the constitutionality of § 1326(b)’s treatment
of prior felony and aggravated felony convictions as sentencing factors. As
he properly concedes, this argument is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998), and he raises the argument only to
preserve it.
No. 06-40493
-2-
commentary to § 2L1.2 defines “crime of violence” as either an
enumerated felony, including “burglary of a dwelling,” or a felony
that “has as an element the use, attempted use, or threatened use
of physical force against the person of another.” As they did
below, the parties contest only whether Ortega’s prior conviction
was the enumerated felony of “burglary of a dwelling” under the
categorical approach. See Dominguez-Ochoa, 386 F.3d at 642-46. In
answering that question, we look to the “generic, contemporary”
meaning of burglary of a dwelling, employing a “common sense
approach.” See United States v. Santiesteban-Hernandez, 469 F.3d
376, 378-79 (5th Cir. 2006).
Here, Ortega was convicted under a statute criminalizing entry
into a building with the intent to commit larceny or any felony.2
CAL. PENAL CODE § 459. In United States v. Taylor, 495 U.S. 575
(1990), the Supreme Court construed the term “burglary” under the
firearms statute, 18 U.S.C. § 924(e), stating that “Congress meant
by ‘burglary’ the generic sense in which the term is now used in
the criminal codes of most States,” hence the term “must have some
uniform definition independent of the labels employed by the
various States’ criminal codes.” Id. at 592, 98. The Court
2
Although the list of things one can enter to commit burglary under
CAL. PENAL CODE § 459 includes both things clearly “dwellings” and things
possibly other than “dwellings,” see United States v. Murillo-Lopez, 444 F.3d
337, 344 (5th Cir. 2006), the state indictment alleged that Ortega entered an
“inhabited dwelling house.” Under the modified categorical approach, we can
consider that indictment in determining under what statutory section Ortega
was convicted, see id. (examining the same California statute and form of
indictment at issue here in addressing defendant’s argument that he didn’t
enter a “dwelling”), hence it’s unsurprising that Ortega does not argue that
he did not enter a “dwelling.” He argues only that he didn’t enter unlawfully
or without privilege.
No. 06-40493
-3-
determined that “the generic, contemporary meaning of burglary
contains at least the following elements: an unlawful or
unprivileged entry into, or remaining in, a building or other
structure, with the intent to commit a crime.” Id. at 598. Ortega
argues that this definition of burglary controls and does not reach
his crime, which did not require that his entry be “unlawful or
unprivileged.”
Because we see no reason to create a separate, parallel
federal common-law definition for “burglary,” Taylor’s definition
of “burglary” controls when defining the “burglary” part of
“burglary of a dwelling” under the Guidelines. We recognize that,
in United States v. Murillo-Lopez, 444 F.3d 337, 344 (5th Cir.
2006), this court extended the definition of “burglary of a
dwelling” under the Guidelines to include things like tents, which
the Court in Taylor implicitly excluded in defining “burglary.”3
That makes sense, given that the court in Murillo-Lopez was called
to define the “of a dwelling” part of “burglary of a dwelling,” and
it’s reasonable to conclude that “burglary of a dwelling”
encompasses different structures than “burglary.” However, the
3
The Court in Taylor implicitly stated that tents were not included in
its definition of “building or other structure” in its definition of generic
burglary:
A few States' burglary statutes, however, as has been noted above,
define burglary more broadly [than the just-stated generic
defintion], e.g., by eliminating the requirement that the entry be
unlawful, or by including places, such as automobiles and vending
machines, other than buildings. One of Missouri's second-degree
burglary statutes in effect at the times of petitioner Taylor's
convictions included breaking and entering “any booth or tent, or
any boat or vessel, or railroad car.”
No. 06-40493
-4-
Court in Taylor did consider what the word “burglary” by itself
entails, and there it held that the common definition included
“unlawful or unprivileged entry into, or remaining in....” Indeed,
it held that statutes, like the one at issue, that do not require
an “unlawful or unprivileged entry into, or remaining in” are
broader than the common definition of “burglary.” This is
buttressed by the Model Penal Code, which requires than an entry be
unprivileged and unlicensed. MODEL PENAL CODE § 221.1. Given this,
it makes little sense to hold that the federal common law
definition of “burglary” requires “unlawful or unprivileged entry,
or remaining in” but the federal common law definition of
“burglary...” does not. As a result, we hold that Taylor's
definition of “burglary,” aside from the structures in which a
burglary can occur, controls the definition of “burglary of a
dwelling” under the Guidelines. This is true even though our goal
under the Guidelines is to ascertain the “generic, contemporary”
meaning of burglary of a dwelling, because the Court in Taylor has
implicitly given us that meaning.
The Government urges that any entry with the intent to commit
a crime must be “unlawful or unprivileged,” hence the California
statute implicitly required such an entry here. But, as the Model
Penal Code and Taylor recognized, those elements are separate. For
example, a cable repairman may enter a house with intent to rape,
but because he enters lawfully and with privilege, there is no
“burglary.” Likewise, a shoplifter who lawfully enters a store
No. 06-40493
-5-
with the intent to steal may later commit theft, but not burglary.
This comports with our companion case, United States v. Herrera-
Montes, ___ F.3d ___ (5th Cir. 2007), in which the defendant
alleged that his prior conviction shows only that he entered
unlawfully, not with an intent to commit a crime - the reverse
situation. That is also not burglary. For example, teenagers may
unlawfully enter a house only to party, and only later decide to
commit a crime.4 Both results are consistent with our conclusion
that Texas’s statute outlawing “burglary of a habitation” outlaws
“burglary of a dwelling” under the Guidelines because that statute
requires both an unconsented-to entry and an intent to commit a
crime. See United States v. Garcia-Mendez, 420 F.3d 454, 457 (5th
Cir. 2005). And our result avoids a split with the Ninth Circuit,
which has held that CAL. PENAL CODE § 459 does not proscribe
“burglary of a dwelling” because it does not require proof that the
entry be “unlawful or unprivileged.” See United States v.
Rodriguez-Rodriguez, 393 F.3d 849, 852-53 (9th Cir. 2005).5
4
See Herrera-Montes, ___ F.3d at ___.
5
The court in Rodriguez-Rodgriguez enhanced the defendant’s sentence
anyways because, using the “modified categorical approach,” the defendant was
indicted with and plead guilty to “unlawfully” entering. This court, however,
uses the “modified categorical approach” only to determine of which subsection
of a statute a defendant was convicted, United States v. Calderon-Pena, 383
F.3d 254, 258 (5th Cir. 2004) (en banc), and CAL. PENAL CODE § 459 has no
subsection requiring “unlawful” entry. In any event, “unlawful” entry was not
part of Ortega’s indictment or conviction.
Also, in United States v. Reina-Rodriguez, 468 F.3d 1147, 1155-56 (9th
Cir. 2006), the Ninth Circuit held that a Utah statute covering “enter[ing] or
remain[ing] unlawfully in a building” proscribed “burglary,” even though
lawful entry was covered by the statute, apparently because Taylor covers
unlawfully remaining in. This seems to disregard the categorical approach
because a defendant could violate that statute in a non-“burglary” manner, by
lawful entry. See United States v. Bonat, 106 F.3d 1472, 1475 (9th Cir. 1997)
(holding that Arizona statute, which is in relevant part identical to the Utah
No. 06-40493
-6-
SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.
statute in allowing conviction for even lawful entry, was broader than Taylor
“burglary” because it covered “privileged” entry). Reina-Rodriguez
distinguished Rodriguez-Rodriguez because CAL. PENAL CODE § 459 covers only
entry, not remaining in. In any event, we hold that, whether the defendant
“enters” or “remains in,” the entry or remaining in must be “unlawful or
unprivileged.”