Though we rarely review arguments not raised in the opening brief, we acknowledge an exception to the waiver rule when there has been an intervening change in the law. See, e.g., Ball v. Rodgers, 492 F.3d 1094, 1102 (9th Cir.2007). Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir.2007) (en banc), constitutes such a change.
We recently observed in Kawashima v. Mukasey that prior to Navarro-Lopez, we
applied the modified categorical approach in cases where the statute of conviction prohibits a broader range of conduct than the generic offense, regardless of whether the former lacks a particular element of the latter. See, e.g., United States v. Parker, 5 F.3d 1322 (9th Cir.1993) (applying the modified categorical approach to determine whether a jury found the defendant guilty of generic burglary even though the statute under which the defendant was convicted did not require unlawful entry, a necessary element of the generic definition); United States v. Alvarez, 972 F.2d 1000 (9th Cir.1992) (per curiam) (same). In Navarro-Lopez, we did not explicitly overrule these precedents ... Nevertheless, Navarro-Lopez’s statement that the modified categorical approach never applies when “the crime of conviction is missing an element of the generic crime altogether,” 503 F.3d at 1073, is plain and clear. And, because such statement is irreconcilable with our precedents that have held otherwise, we must conclude that they have been impliedly overruled.
530 F.3d 1111, 1116 (9th Cir.2008). Accordingly, I do not believe that we are free in this case to ignore the new law set forth *705in Navarro-Lopez, which addresses the threshold issue of whether we may use the modified categorical approach at all. If the modified categorical approach never applies under a particular statute, we should not reach the issue of whether a minute order could satisfy the modified categorical approach, and I respectfully suggest that we are remiss in doing so.
Nevertheless, since the panel has decided to reach the issue, I believe it important to clarify that the facts one may consider reliably established by a California minute order are limited by the minute order’s function, i.e., to record the statute of conviction and the count in the information or indictment to which the defendant pleaded guilty or nolo contendere. By its nature, a minute order cannot be used to establish the underlying facts of the crime committed. Cf. United States v. Navidad-Marcos, 367 F.3d 903, 908-09 (9th Cir.2004).
Because I would address Navarro-Lopez’s impact on this case, I would overrule United States v. Aguila-Montes De Oca, 523 F.3d 1071 (9th Cir.2008), to the extent it concludes that Navarro-Lopez permits use of the modified categorical approach in applying a conviction under California Penal Code § 459. I would also explicitly overrule pre-Navarro-Lopez cases such as United States v. Rodriguez-Rodriguez, 393 F.3d 849, 857-58 (9th Cir.2005), that apply the modified categorical approach to convictions under California Penal Code § 459. Navarro-Lopez clearly states our new rule that
“[t]he modified categorical approach ... only applies when the particular elements in the crime of conviction are broader than the generic crime. When the crime of conviction is missing an element of the generic crime altogether, we can never find that ‘a jury was actually required to find all the elements of the generic crime.”
Navarro-Lopez, 503 F.3d at 1073(quoting Li v. Ashcroft, 389 F.3d 892, 899-901 (9th Cir.2004) (Kozinski, J. concurring)). Because California burglary is missing a generic element, the district court’s application of the modified categorical approach is plain error.1
The generic definition for federal burglary requires an “unlawful or unprivileged entry.” Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The Court in Taylor noted that its definition of burglary approximated that adopted by the drafters of the Model Penal Code wherein a person commits burglary “if he enters a building ... with purpose to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter,” implying that “unlawful” means unconsented. Id. at 598 n. 8, 110 S.Ct. 2143 (quoting Model Penal Code § 221.1 (1980)) (emphasis added).2 The Court observed that some states have *706eliminated the requirement that the entry be unlawful. Id. at 599, 110 S.Ct. 2143.
California is one of the states where only “entry” is required. Under California law, one can commit residential burglary even if the entry into the home is consensual and not a trespass. People v. Frye, 18 Cal.4th 894, 77 Cal.Rptr.2d 25, 959 P.2d 183, 212-13 (1998). Specifically, under CALJIC 14.50, the only elements that must be proven to convict under California Penal Code § 459 are that:
1. A person entered a [building] [_]; and
2. At the time of the entry, that person had the specific intent to steal and take away someone else’s property, and intended to deprive the owner permanently of that property;
Id. 77 Cal.Rptr.2d 25, 959 P.2d at 212. In contrast, the Supreme Court indicated 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 intent to commit a crime.
Taylor, 495 U.S. at 598, 110 S.Ct. 2143 (emphasis added). The Supreme Court has clarified that
an offense constitutes ‘burglary’ for purposes of ... sentence enhancement if either its statutory definition substantially corresponds to ‘generic’ burglary, or the charging paper and jury instructions actually
required the jury to find all the elements of generic burglary in order to convict the defendant.
Taylor, 495 U.S. at 602, 110 S.Ct. 2143 (emphasis added). Taylor does not permit the conflation of the element of unlawful or unprivileged entry with the element of entry with the intent to commit a crime. Rather, the jury is required to find both elements independently in order to convict the defendant.
Under the standard set out in Taylor, we cannot establish that a conviction for California burglary meets the requirements for a federal enhancement for “burglary of a dwelling.” Even where the information or indictment alleges that the defendant did “unlawfully enter,” as occurred in this case, no jury would ever be “actually required to And all the elements of generic burglary” in order to convict the defendant because the type of entry need not be proven and is simply unnecessary to the conviction. See Taylor, 495 U.S. at 602, 110 S.Ct. 2143; Frye, 77 Cal.Rptr.2d 25, 959 P.2d at 212.
Furthermore, given the peculiarities of California law, California’s burglary statute does not satisfy the residual clause as an offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2). We continue to employ the categorical approach when analyzing the applicability of the residual clause. Because California burglary is similar to “burglary of a dwelling,” the relevant inquiry is whether the risk posed by California residential burglary is similar to that posed by federal burglary of a dwelling. See James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 1594, 167 L.Ed.2d 532 (2007) (analyzing attempted burglary).
In conducting this inquiry, we are not required to And that every conceivable California burglary would pose a serious potential risk of physical injury to another, but rather that, in the ordinary case, California burglary would satisfy the residual clause. Id. at 1597. “ ‘It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.’ ” Id. (quoting Gonzales *707v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 822, 166 L.Ed.2d 683 (2007)).
California has created an entire class of burglaries that no longer fits the description of a “prototypically violent” crime. For example, a review of California burglary prosecutions reveals that California courts have upheld burglary convictions for defendants who entered a home with consent and with the intent to sell fraudulent securities. See, e.g., People v. Cole, 156 Cal.App.4th 452, 67 Cal.Rptr.3d 526, 540 (2007); People v. Salemme, 2 Cal.App.4th 775, 3 Cal.Rptr.2d 398, 402-03 (1992). Admittedly, a slim possibility exists in such a case that a victim who discovers the fraudulent scheme would confront the defendant, but the residual clause requires “serious potential risk,” not merely a faint possibility.
Due to the broad interpretation of burglary adopted by the California courts, it appears that the risk of injury to another comes not from the perpetrator’s uncon-sented entry, but from the victims’ reaction to the felony intended to be committed therein. The Supreme Court has identified the main risk of burglary as arising “from the possibility of a face-to-face confrontation between the burglar and a third party.” James, 127 S.Ct. at 1594. Logically, such a risk arises in a situation of unconsented entry, not one in which the burglar has been permitted to enter. In light of the breadth of California prosecutions, I cannot conclude that an “ordinary case” of California burglary is a crime of violence merely because a felony occurred, or was intended to occur, in a residence. To so conclude, one would have to assume that a victim will react differently to a felony that occurs in his home than to one that occurs in a commercial building or on the street, associating the probability of violence with the location of the crime, not the nature of the crime or the means by which it is committed.
In applying the residual clause to the specific conduct to which the defendant pleaded rather than the statutory elements of the state burglary offense, Judge Gra-ber’s concurrence improperly employs the modified categorical approach. Concurrence at 15006. Our Circuit has repeatedly “expressed doubt as to whether the modified categorical approach applies to the catchall clause” at all. United States v. Jennings, 515 F.3d 980, 990 (9th Cir.2008) (citing United States v. Kelly, 422 F.3d 889, 895 (9th Cir.2005); United States v. Fish, 368 F.3d 1200, 1204 & n. 4 (9th Cir.2004); United States v. Parker, 5 F.3d 1322, 1325-26 (9th Cir.1993)). Notably, the Supreme Court in James applied only the categorical approach in its analysis of the residual clause. 127 S.Ct. at 1593-94.
The Ninth Circuit panel in Jennings concluded that “generally the modified categorical approach may be applied in determining whether a conviction qualifies as a violent felony under § 924(e)(2)(B)(ii)’s ‘otherwise’ clause (sometimes termed the catchall clause).” 515 F.3d at 990. However, Jennings clarified that Navarro-Lopez precludes application of the modified categorical approach to the residual clause when the statute of conviction “does not require proof of any actual or potential risk of harm to others for a conviction.” Id. at 992. In the case before us, the California burglary statute, like the Washington statute at issue in Jennings, “ ‘is missing an element of the generic crime’— here, the actual or potential risk of harm to another — ‘altogether.’ A jury would not have to find that such a risk was posed for any conviction ... it simply is not an element of the crime.” Id. at 993(internal citations omitted).
Under Navarro-Lopez, we may not apply the modified categorical approach to *708determine whether a state statute falls under the residual clause unless the state offense includes the element of potential risk of harm. California’s burglary statute contains no such element, and therefore the modified categorical approach is unavailable.
I sympathize with my colleagues who would like to find a way to fit convictions under California Penal Code § 459 into “burglary of a dwelling” or the residual clause. The peculiarities of California law, however, have left federal courts unable to use it as a predicate offense under USSG § 4B1.1. The goal of nationwide uniformity driving the Sentencing Guidelines is not well-served when we apply an enhancement for all burglaries in one state but none in California, our most populous state. But neither is it served when we apply an enhancement for conduct in California that would not trigger the enhancement in others. Navarro-Lopez and the Supreme Court’s insistence on a categorical analysis mandates that we reach the under-inclusive result.
For the foregoing reasons, I would apply our en banc rule in Navarro-Lopez and reverse the district court.
. Snellenberger did not argue at the district court level that the modified categorical approach never applies under the California Penal Code § 459; therefore, the correct standard of review is plain error. "[W]here the law at the time of trial was settled and clearly contrary to the law at the time of appeal — it is enough that an error be 'plain' at the time of appellate consideration.” Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). Erroneous application of a sentencing enhancement affects the defendant's substantial rights and "affect[s] both the fairness and integrity of our judicial system.” United States v. Portillo-Mendoza, 273 F.3d 1224, 1228 (9th Cir.2001).
. I acknowledge that one could consider entry into a structure for the purpose of committing a crime to be ''unlawful” in a general sense, but that type of unlawfulness is explicitly distinguished from the “unlawful or unprivileged entry” included by the Supreme Court in Taylor as an element of generic burglary.