dissenting.
Because fourth degree burglary in Ohio — a trespass crime that is not “burglary” under the relevant U.S. Sentencing Guideline — is not categorically a “crime of violence” for career offender purposes, I would reverse. The terms of the Ohio statute would apply to a situation where the trespasser enters the home of an acquaintance, waits for the acquaintance to return, and for a period refuses to leave when asked to leave. Such a crime does not entail the type of danger involved in potential confrontations with intruders who intend theft or assault.
The statute does not include an element that the defendant intend to commit a crime other than the trespass itself, and the statute is therefore different from generic burglary and different from the attempted burglary at issue in James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). Neither the requirement that the defendant have entered by “force, stealth, or deception,” nor the requirement that an innocent person be present, raises the type of danger of violence that entering with intent to commit an offense raises.
We cannot assume that entering by “force, stealth, or deception” is the equivalent of entering to commit a crime. Indeed, the Ohio statute distinguishes among entries by “force, stealth, or deception” on precisely the basis of whether there is purpose to commit a criminal offense. The requirement of “force, stealth, or deception,” apart from the intent to commit a crime, is not difficult to meet. “Stealth,” for instance, “means any secret, sly or clandestine act to avoid discovery and to gain entrance into or to remain within a residence of another without permission. ” State v. Lane, 50 Ohio App.2d 41, 361 N.E.2d 535, 540 (1976) (emphasis added), quoted with approval in State v. Dowell, 166 Ohio App.3d 773, 853 N.E.2d 354, 356-57 (2006), and State v. Ward, 85 Ohio App.3d 537, 620 N.E.2d 168, 170 (Ohio Ct.App.1993). “Force,” moreover, may include using the strength of a defendant to turn the doorknob and push open an unlocked door. Lane, 361 N.E.2d at 539 (interpreting identical language in aggravated burglary statute); State v. Austin, No. 20445, 2005 WL 567305, **1-2, 2005 Ohio App. LEXIS 1043, at **5-7 (Ct.App. Mar. 11, 2005) (same), rev’d in part on other grounds, 109 Ohio St.3d 313, 847 N.E.2d 1174 (2006).
Moreover, the actual or likely presence of an innocent person, in the absence of an intruder’s intent to commit an offense, is not sufficient for us to infer the risk of confrontation relied upon in James. Indeed the intent of a burglar to commit a crime is largely what makes a confrontation between burglar and bystander so potentially dangerous. The Supreme Court explained as follows why Congress singled out burglary as a crime with the 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 confrontation between the offender and an occupant, caretaker, 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 v. United States, 495 U.S. 575, 588, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (emphasis added). The Supreme Court noted in Leocal v. Ashcroft, 543 U.S. 1, 10, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), that burglary, “by its nature, involves a substantial risk that the burglar will use force *495against a victim in completing the crime.” (Emphasis added.)
"While our inquiry at this stage is properly categorical, meaning that we look at the terms of the Ohio crime of which Skipper was convicted, the facts according to Skipper nonetheless provide an example of the type of nonviolent activity covered by Ohio fourth degree burglary. Skipper contends that he entered into the dwelling of his girlfriend when she wasn’t home to speak with her. He waited for her to come home, at which time they became involved in a verbal domestic dispute. He did not leave, and the girlfriend called the police, who arrested Skipper. The return of the girlfriend is what triggered the applicability of fourth degree burglary in this scenario, see State v. Davis, No. 83033, 2004 WL 802768, *4, 2004 Ohio App. LEXIS 1658, at *12 (Ct.App. April 15, 2004), but the presence of the girlfriend simply does not raise the type of confrontation risk relied upon in James and referred to in Taylor and Leocal.