United States Court of Appeals
Fifth Circuit
F I L E D
REVISED JULY 17, 2007
IN THE UNITED STATES COURT OF APPEALS June 25, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-41426
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN JOSE HERRERA-MONTES,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:06-CR-257
--------------------
Before HIGGINBOTHAM, DAVIS, and WIENER, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Defendant Juan Jose Herrera-Montes pleaded guilty to
reentering the United States following deportation. In sentencing
Herrera, the district court levied a 16-level increase after
concluding that Ortega’s previous Tennessee conviction for
aggravated burglary, TENN. CODE ANN. § 39-14-403, was a “crime of
violence” under U.S.S.G. § 2L1.2. Herrera challenges that
conclusion, 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
commentary to § 2L1.2 defines “crime of violence” as either an
No. 06-41426
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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, Herrera was convicted of “aggravated burglary,” which is
“burglary” as defined in TENN. CODE ANN. § 39-14-402, of a
“habitation.” § 39-14-403. Section 39-14-402 provides that:
(a) A person commits burglary who, without the effective
consent of the property owner:
(1) Enters a building other than a habitation (or
any portion therefore) not open to the public, with
intent to commit a felony, theft or assault;
(2) Remains concealed, with the intent to commit a
felony, theft or assault, in a building;
(3) Enters a building and commits or attempts to
commit a felony, theft, or assault; or
(4) Enters any freight or passenger car,
automobile, truck, trailer, boat, airplane or other
motor vehicle with intent to commit a felony, theft
or assault or commits or attempts to commit a
felony, theft or assault.
Herrera’s indictment charged that he “did unlawfully, feloniously,
and recklessly enter a habitation without the effective consent of
the property owner...and commit theft.” Herrera argues that the
No. 06-41426
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indictment tracks the language of (a)(3), which can be committed
even if, at the time of unlawful entry, he had no intent to commit
a crime. The Government agrees. And such an intent, he argues, is
required under United States v. Taylor, 495 U.S. 575 (1990), and is
consistent with the generic definition of burglary as attested to
by the Model Penal Code and Black’s Law Dictionary.
As we more fully describe in our companion case, United States
v. Ortega-Gonzaga, ___ F.3d ___ (5th Cir. 2007), Taylor's
definition of “burglary,” aside from the structures in which an
entry can occur, controls the definition of “burglary of a
dwelling” under the Guidelines. And Taylor requires that the
defendant intend to commit a crime at the time of unlawful entry or
remaining in, as do the Model Penal Code § 221.1 and BLACK’S LAW
DICTIONARY 197-98 (6th ed. 1990).1 Consequently, under the
categorical approach, Herrera's prior conviction was not “burglary
of a dwelling,” thus not a crime of violence, because his statute
of conviction did not require such intent.2 For example, teenagers
1
See United States v. Bonat, 106 F.3d 1472, 1475 (9th Cir. 1997)
(concluding that a burglary statute covering someone who enters a store and
only then decides to shoplift is broader than Taylor “burglary” because the
intent must exist during the entry) (that statute also covered lawful entry,
another reason it was broader than Taylor “burglary,” see Ortega-Gonzaga, ___
F.3d at ___ & n.5). Of course, if the intent could be formed anytime, then
every crime committed after an unlawful entry or remaining in would be
burglary. Relatedly, one who lawfully enters a building does not “unlawfully
remain” just because he later commits a crime, parlaying the crime into
burglary because now intent and unlawful remaining coincide - a shoplifter,
for instance, who enters lawfully but intending to steal does not “unlawfully
remain” when he commits the theft.
2
The plain text of § 39-14-402(a)(3) does not require such intent, as a
Tennessee court has recognized. See State v. Wesemann, 1995 WL 605442, at *2
(Tenn. Crim. App. Oct. 16, 1995) (holding that § 39-14-402(a)(3) “requires
only that a [crime] be committed or attempted once the perpetrator enters the
building....Criminal intent does not have to occur either prior to or
No. 06-41426
-4-
who unlawfully enter a house only to party, and only later decide
to commit a crime, are not common burglars.3
The Government argues that this court’s opinion in United
States v. Garcia-Mendez, 420 F.3d 454 (5th Cir. 2005), controls
here. In Garcia-Mendez, we concluded that the Texas burglary
statute, TEX. PENAL CODE § 30.02, which is in relevant part identical
to the Tennessee statute here, proscribed “burglary of a dwelling.”
Garcia-Mendez, however, was charged and convicted under TEX. PENAL
CODE § 30.02(a)(1), which requires entry with an intent to commit
a crime, as the court in Garcia-Mendez recognized.4 It did not
address § 30.02(a)(3), which requires no such intent, see Flores v.
State, 902 S.W.2d 618, 620 (Tex. App. - Austin 1995). Hence
Garcia-Mendez never addressed the issue here, and the Government
points to no cases where § 30.02(a)(3) was at issue.
SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.
simultaneous with the entry....”).
3
One could argue that the teenagers intended, by entering, to commit
the crime of trespass, but that bootstrapping is not countenanced in the
common meaning of “burglary.” A better example, albeit one where the entry
was not unlawful: in Wesemann, the defendant argued that the victim always
brought him something to drink when he was moving her lawn, but that because
she was away once when he mowed her lawn, she left him a note telling him to
go inside the house to get a drink. Once inside, intending only to get a
drink, he continued, he saw some rings and stole them. The court affirmed the
sentence, but only because § 39-14-402(a)(3) required no intent to commit a
crime at the time of entry.
4
The record in Garcia-Mendez shows that the defendant was indicted with
entry with an intent to commit sexual assault and plead guilty to entry with
an intent to assault.