In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3377
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
E RIC S. S CANLAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 10-CR-25—Rudolph T. Randa, Judge.
A RGUED N OVEMBER 8, 2011—D ECIDED JANUARY 27, 2012
Before K ANNE, S YKES, and H AMILTON, Circuit Judges.
P ER C URIAM. Eric S. Scanlan pleaded guilty to posses-
sion of a firearm by a felon. See 18 U.S.C. § 922(g)(1). The
district court set a base offense level of 24, see U.S.S.G.
§ 2K2.1(a)(2), relying in part on a California burglary
conviction that the district court considered a crime
of violence. Scanlan argues that the district court com-
mitted plain error by treating the burglary conviction as
a crime of violence. We affirm the sentence.
2 No. 10-3377
Police in Milwaukee, Wisconsin, arrested Scanlan after
receiving a tip that he would be arriving in town
by bus from California wearing a bulletproof vest and
carrying drugs and a firearm. Scanlan was indicted for
possession of a firearm and body armor by a felon, 18
U.S.C. §§ 922(g)(1), 931(a)(7), and pleaded guilty to the
firearm charge.
A probation officer prepared a presentence investiga-
tion report setting Scanlan’s base offense level at
24 under U.S.S.G. § 2K2.1(a)(2). That calculation was
based in part on a California conviction for “burglary”
which the probation officer characterized as a crime of
violence. By default the base offense level under § 2K2.1
for a violation of § 922(g)(1) is 14, but that starting
point is raised to 20 for a defendant with one prior con-
viction for either a crime of violence or a controlled
substance offense, and to 24 if the defendant has two
such convictions. U.S.S.G. § 2K2.1(a)(2), (4)(A), (6). An
offense qualifies as a crime of violence if it is “burglary
of a dwelling, arson, or extortion, involves use of explo-
sives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.” Id.
§§ 4B1.2(a)(2), 2K2.1 cmt. n.1.
Scanlan’s lawyer initially objected that, in drafting
the presentence report, the probation officer had
impermissibly relied on police reports from the
California case rather than judicial records, and thus
lacked a permissible basis for concluding that Scanlan
had burglarized a residence rather than some other
type of structure. By the time of sentencing, however,
No. 10-3377 3
counsel had received a copy of the charging document
and judgment for the California offense, which conclu-
sively establish that Scanlan was convicted of first-
degree residential burglary under California Penal Code
§ 459. Counsel thus withdrew his objection. The district
court adopted the guidelines imprisonment range of
77 to 96 months from the presentence report and
imposed a term of 93 months.
Defense counsel filed a motion to withdraw, see Anders
v. California, 386 U.S. 738 (1967), but we rejected the
motion and ordered briefing on whether, for guide-
lines purposes, the crime of “burglary” as defined by
California law fits the definition of burglary articulated
in Taylor v. United States, 495 U.S. 575, 599 (1990). In
Taylor the Supreme Court explained that “burglary”
traditionally has been defined as an “unlawful or
unprivileged” entry into a building or structure with
intent to commit a crime, 495 F.3d at 599. California
has not defined burglary under § 459 to include as an
element of the offense an unprivileged entry or
unlawful presence; entering with the intent to commit
a felony, even if the entry is by invitation, constitutes
burglary. See People v. Letner, 235 P.3d 62, 115 (Cal.
2010); People v. Lynch, 237 P.3d 416, 465 n.23 (Cal. 2010).
Taylor holds that a conviction for “burglary” does not
qualify as a “violent felony” under the Armed Career
Criminal Act (“ACCA”), see 18 U.S.C. § 924(e)(2)(B), unless
“its statutory definition substantially corresponds to
‘generic’ burglary.” 495 U.S. at 602. We have said that the
definition of “crime of violence” in § 4B1.2(a) and the
4 No. 10-3377
ACCA definition of “violent felony” are “identical . . .
except that the statutory definition leaves out ‘of a dwell-
ing.’ ” United States v. Evans, 576 F.3d 766, 767 (7th Cir.
2009). That comparison implies that § 4B1.2(a) uses the
term burglary in the same generic sense as the ACCA,
and the other circuits that have considered the ques-
tion have held that § 4B1.2(a) uses Taylor’s generic defini-
tion of burglary. See United States v. Eason, 643 F.3d
622, 623-24 (8th Cir. 2011); United States v. Knight, 606
F.3d 171, 173 (4th Cir. 2010); United States v. Ortega-
Gonzaga, 490 F.3d 393, 395 (5th Cir. 2007); United States
v. Wenner, 351 F.3d 969, 973 (9th Cir. 2003). Thus, the
Ninth Circuit has held that “burglary” as defined in
§ 459—even burglary of a home—is not “burglary of a
dwelling” as enumerated in § 4B1.2(a)(2) because an
unprivileged entry is not an element. See United States
v. Aguila-Montes De Oca, 655 F.3d 915, 944-45 (9th Cir.
2011) (en banc); see also United States v. Gonzalez-Terrazas,
529 F.3d 293, 296-97 (5th Cir. 2008); Ortega-Gonzaga, 490
F.3d at 395; United States v. Painter, 400 F.3d 1111, 1114
(8th Cir. 2005); United States v. Throneburg, 921 F.2d 654,
659 (6th Cir. 1990) (concluding that Michigan crime of
“entering without breaking,” see M ICH. C OMP. L AWS
§ 750.111 (1979), does not define crime of burglary under
Taylor definition because unprivileged entry is not an
essential element).
Scanlan now argues that a conviction under § 459 is
not an enumerated crime of violence under § 4B1.2(a)(2).
The government concedes that § 459 does not fit
Taylor’s definition of generic burglary but argues that a
violation of that statute nonetheless is a crime of
No. 10-3377 5
violence under § 4B1.2(a)(2) because the crime neces-
sarily involves “conduct that presents a serious potential
risk of physical injury to another.” The government
points out, moreover, that Scanlan did not make this
argument to the district court, so we review for plain
error. See United States v. Guajardo-Martinez, 635 F.3d
1056, 1059 (7th Cir. 2011).
Scanlan argues that § 459 does not fit within the
residual clause of § 4B1.2(a)(2) because, he maintains,
the ordinary case of California burglary does not
involve the same type or degree of risk of physical
injury as generic burglary. He notes that some judges
who have considered this question believe that the ordi-
nary case of California burglary is not a crime of
violence because § 459 criminalizes conduct that does
not present a serious potential risk of injury, such as
making a consensual entry into a home with the goal
of selling occupants fraudulent securities. See United
States v. Snellenberger, 548 F.3d 699, 706-07 (9th Cir. 2008)
(en banc) (Smith, J., dissenting). Scanlan cites a number
of recent California burglary convictions that involve
consensual entry and nonviolent felonies, see, e.g., People
v. Lee, No. E049458, 2011 WL 2508899, at *1 (Cal. Ct.
App. June 24, 2011) (defendant stole checks from
home shared with her parents); People v. Tupper,
No. A125301, 2010 WL 5231819, at *1 (Cal. Ct. App. Dec. 23,
2010) (defendant embezzled funds from preschool
where he worked as bookkeeper); People v. Segars,
No. F058595, 2010 WL 5030104, at *1 (Cal. Ct. App. Dec. 10,
2010) (defendant was invited into victims’ homes to
sign contracts and receive payment for installing solar
panels though no work was ever done).
6 No. 10-3377
The district court did not commit plain error by
treating Scanlan’s burglary conviction as a crime of vio-
lence. To succeed on plain-error review, Scanlan must
show that the district court committed (1) an error
(2) that is plain and (3) affected his substantial rights
to a degree that (4) would seriously undermine the fair-
ness, integrity, or public reputation of judicial pro-
ceedings if not corrected. See United States v. Baker, 655
F.3d 677, 680-81 (7th Cir. 2011); United States v. Wainwright,
509 F.3d 812, 815-16 (7th Cir. 2007). To determine if
§ 459 is a crime of violence under the residual clause, we
apply a categorical approach and ask whether, in the
ordinary case, the conduct encompassed by the elements
of the offense presents a serious potential risk of physical
injury to another. See James v. United States, 550 U.S.
192, 208 (2007); United States v. Sonnenberg, 628 F.3d 361,
365 (7th Cir. 2010). Further, § 459 and the enumerated
offenses in § 4B1.2(a)(2) must be roughly similar in kind
and degree of risk posed. Begay v. United States, 553
U.S. 137, 142-43 (2008); United States v. Capler, 636 F.3d
321, 323 (7th Cir. 2011).
Although Scanlan has identified some examples of
convictions under § 459 where the conduct was non-
violent and the entry was consensual, every conceivable
set of facts covered by § 459 does not have to present
a serious potential risk of injury for it to qualify as a
crime of violence under § 4B1.2(a)(2). James, 550 U.S. at 207-
08. After we rejected counsel’s motion to withdraw
and directed briefing, the Ninth Circuit answered a
question not addressed in Aguila-Montes De Oca and held
that § 459 is categorically a crime of violence under
§ 4B1.2(a)’s residual clause. United States v. Park,
No. 10-3377 7
649 F.3d 1175, 1180 (9th Cir. 2011). The court noted, id. at
1178-80, that the Supreme Court of California and other
California courts have emphasized the potentially
violent nature of the ordinary case of residential
burglary despite § 459 not requiring unlawful entry, see
People v. Davis, 18 Cal. 4th 712, 721 (Cal. 1998); People v.
Rodriguez, 18 Cal. Rptr. 550, 558 (Cal. Ct. App. 2004). And
the Supreme Court has stated that the “main risk
of burglary arises not from the simple physical act of
wrongfully entering into another’s property, but rather
from the possibility of a face-to-face confrontation
between the burglar and a third party.” James, 550 U.S.
at 203. As to the second step, the Ninth Circuit held
that § 459 is roughly similar to generic burglary. Park,
649 F.3d at 1180. Although § 459 does not require
unlawful entry, it does require some form of entry,
making it arguably more similar to generic burglary
than the attempted burglary statute that the Supreme
Court found was a crime of violence in James. See Park,
649 F.3d at 1180.
The district court should have treated § 459 as a crime
that otherwise presents a serious potential risk of injury
rather than as the enumerated crime of “burglary of a
dwelling” under § 4B1.2(a)(2). But since § 459 nonetheless
still qualifies as a crime of violence under § 4B1.2(a)(2),
Scanlan has not identified an error in the guidelines
calculation and he has not established plain error. See
United States v. Turner, 651 F.3d 743, 748 (7th Cir. 2011).
Therefore, Scanlan’s sentence is A FFIRMED.
1-27-12