concurring:
Even though amendments to the Sentencing Guidelines effective November 1, 2016 eliminated “burglary of a dwelling” as an enumerated, predicate offense in determining whether a Sentencing Guidelines enhancement applies,1 how courts define generic burglary continues to be of importance. “Burglary” is an enumerated predicate offense in the Armed Career Criminal Act .(ACCA),2 and the definition of “aggravated felony” for purposes of immigration laws includes “burglary.”3
Because of the importance of the issue, I am taking the unusual step of filing a concurring opinion, with the opinion I have written on behalf of the panel, after coming to the conclusion that dicta in our decision in United States v. Herrera-Montes4 defined generic burglary in a way *220that is not supported by the Supreme Court’s opinion in Taylor v. United States5 or the elements of burglary set forth in statutes adopted by a majority of the States at the time the ACCA was enacted.6 Although the statute at issue in Herrera-Montes criminalized only unlawful entry and was not a “remaining in” statute, the opinion in Herrerar-Montes said that the intent to commit a crime upon the premises, which is an element of generic burglary, must exist “at the time of unlawful entry or remaining in.”7 This timing aspect of the formation of intent with regard to “remaining in” is not found in Taylor.
We should have said in Herrera-Montes that when a statute of conviction criminalizes only unlawful entry, the intent to commit a crime on the premises must exist at the time of entry. We should not have expressed an opinion as to when such an intent must be formed when a “remaining in” burglary offense is at issue. Both Taylor’s generic definition of burglary and a majority of the States’ burglary statutes include unlawful entry or “remaining in” in defining burglary.8 However, “remaining in” statutes diverge as to when intent to commit another crime on the premises must be formed, and there is no indication that when the ACCA was enacted, the criminal codes of most States agreed that intent to commit a crime on the premises must have been formed at or before the moment of unlawfully remaining in.
With great respect, Judge Higginbotham’s concurring opinion in the present case, mounting a defense of the opinion he authored in Herrera-Montes, obscures the focus of the inquiry as to what “generic” burglary requires with respect to the timing of intent. It goes without saying that a particular State’s definition of burglary is not controlling.9 Instead, the Supreme .Court reasoned in Taylor that the generic approach to ascertaining the elements of an offense takes account of the elements of the offense shared in common among a majority of States’ formulations.10 The Supreme Court has confirmed in subsequent opinions that to determine a generic offense’s elements, the criminal codes and statutes of the states must be examined to see which elements appear in “most” of them.11 Judge Higginbotham’s concurring *221opinion, and the dicta in Herrera-Montes, advocate a definition of burglary committed by unlawfully remaining in that has been adopted by approximately five (5) state statutes,12 and there is no indication that at the time the Supreme Court set forth the elements of generic burglary in Taylor, most States had enacted a definition of burglary congruent with the concurring opinion’s definition. Judge HigginbothaM’s formulation is decidedly not the majority view of when intent must be formed during the commission of burglary by unlawfully remaining in a building.
I do not advocate that generic burglary must include “all” state, burglary statutes or that no state burglary statute should be “left out,” as Judge Higginbotham’s concurring opinion asserts.13 I advocate only that this court adhere to the elements of generic “remaining in” burglary as expressed in Taylor. When Taylor was decided, it appears that some States required that intent to commit a crime while unlawfully remaining in a building must be formulated at or before the time of trespass, while other States permitted such intent to be formed during the time the defendant unlawfully remained in the building. There is no indicátion that the weight of authority supported one view over the other. The generic definition of burglary is just that, generic. Generic burglary does not specify when intent to commit a crime on the premises must be formed.
There is a split among the Circuit Courts as to whether generic burglary requires intent to commit a crime to be formed at or before the time that the presence on the property first becomes unlawful.14 The Fifth Circuit should join the Fourth15 and Ninth16 Circuits in concluding that when a statute permits burglary to be committed while unlawfully-remaining in a building, intent to commit a crime while within can be formed before or after the trespass initially occurs.
I
Ascertaining whether a prior conviction qualifies as a “crime of violence” under the Guidelines requires application of the “categorical approach,” with which federal sentencing and appellate courts have wrestled for many years.17 The present case arises *222under the version of § 2L1.2 of the Guidelines that was in effect in June 2015, when Bernel-Aveja was sentenced. His base offense level was increased by 12 because of a 1996 Ohio conviction for burglary that the district court determined was a “crime of violence.” At that time, the Guidelines included “burglary of a dwelling” as a “crime of violence.”18
The 1996 judgment of conviction establishes. that Bernel-Aveja pleaded guilty to burglary in the third degree, a violation of Ohio Revised Code section 2911.12.19 He was sentenced to two years of imprisonment, suspended, and two.years of probation; however, his probation was revoked in 1999, and after receiving credit for time served, he was sentenced .to serve 353 days, in prison.
When Bernel-Aveja committed the 1996 offense, section 2911.12 of the Ohio Code provided in pertinent part:
(A) No person, by force, stealth, or deception, shall do any of the following:
(1)Trespass in an occupied structure ... with purpose to commit' therein, any theft offense or any felony;
(2) Trespass in a permanent or temporary habitation of any person when any person is present or likely to be present, with purpose to commit in the habitation any misdemeanor that is not a theft offense;
(3) Trespass in a permanent or temporary habitation of any person when any person is present or likely to be present.
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.(C) Whoever violates this section is guilty, of burglary. A violation of division (A)(1) of this section is an aggravated felony of the second degree. A violation of division (A)(2) of this section is a felony of the third degree. A violation of division (A)(3) of this section is a felony of the fourth degree.20
As Bernel-Aveja notes, it is “apparent” that he was convicted under subsection (2) of section 2911.12 because the Ohio judgment of conviction reflected that his offense was a third degree felony. A person commits “criminal trespass” under Ohio law when he or she, “without privilege to do so; ... knowingly enter[s] or remain[s] on the land or premises of another.”21
*223After incorporating the elements of “criminal trespass” into section 2911.12, the Ohio burglary statute at issue provides:
(A) No person, by force, stealth, or deception, shall ...
(2) [without privilege to do so, knowingly enter or remain on the premises of another] in a permanent or temporary habitation of any person when any person is present-or likely to be present, with purpose to commit in the habitation any misdemeanor that is not a theft offense.
II
The definition of “crime of violence” in § 2L1.2 of the Guidelines in 2015 included “burglary of a dwelling” as an enumerated offense, but “burglary” was not defined.22 We have held, however, with exceptions not relevant here, that “we see no reason to create á separate, parallel federal common-law definition for ‘burglary’ ” and that “Taylor’s definition of ‘burglary’ controls when defining the ‘burglary’ part of ‘burglary of a dwelling’ ” under § 2L1.2 of the Guidelines,23 To determine whether a prior conviction constitutes “burglary,” courts utilize the categorical approach set forth in Taylor,24
In Taylor, the Supreme Court construed the ACCA25 and held that Congress intended the term “burglary” in that legislation to mean the “generic” crime of burglary,26 After extensive analysis, the Court concluded that “[although the exact, formulations vary, 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.”27 The Court observed that a California offense that defined “burglary” “so broadly as to include shoplifting and theft of goods from a ‘locked’ but unoccupied automobile” would not constitute generic burglary.28 The Court confirmed in subsequent decisions.that an.offense that “criminalized entering a location ... [lawfully] with the intent to steal” would not constitute “generic burglary because” it would “encompass[] mere shoplifting.”29 *224Accordingly, though intent to commit a crime is a necessary element of generic burglary, there must be an element of unlawfulness about the presence of the defendant in the building, or in our case, in the dwelling.
It is clear from Taylor and its progeny that if a statute criminalized only unlawful or unprivileged entry into a building with intent to commit another crime, then such an offense would be “generic burglary” under Taylor’s definition of “burglary.” However, neither Taylor nor subsequent Supreme Court decisions have had occasion to decide definitively when, for purposes of generic burglary, intent must be formed if the offense was “unlawful or unprivileged ... remaining in ... a building or other structure, with intent to commit a crime.”30
Bernel-Aveja’s conviction under Ohio law included the elements of “without privilege to do so ... knowingly entering] or remaining]” in a “habitation ... with purpose to commit in the habitation any misdemeanor that is not a theft offense.”31 The Government does not contend that the Ohio statute of conviction sets forth two separate crimes, one having as an element “enter[ingj” the habitation without privilege to do so, and the other having as an element “remaining in]” the habitation without privilege to do so. The Ohio conviction accordingly implicates the “remaining in” aspect of the Supreme Court’s formulation of generic burglary because a jury could apparently convict under the Ohio statute if some jurors found that the entry was not privileged while others found that the remaining in was not privileged.
Neither the Supreme Court nor this court has been called upon to examine when the requisite intent to commit a crime must be formed if a statute criminalizes “entry into, or remaining in, a building or other structure, with intent to commit a crime.”32 If only the words of the generic definition of burglary in Taylor are consulted (“an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime”33), there are several possibilities as to when intent might be formed. A defendant might form the intent to commit a crime on the premises: (1) before lawfully entering, (2) after lawfully entering, (3) before unlawfully entering, (4) after unlawfully entering, (5) before unlawfully “remaining in,” or (6) while unlawfully “remaining in.”
The Supreme Court of Ohio has construed one of Ohio’s burglary statutes34 to mean that “a defendant may form the purpose to commit a criminal offense at any point during the course of a trespass.”35 The parties in this case agree that this construction of when the intent to commit a crime may be formed applies equally to the requisite intent in another Ohio burglary statute, under which Bernel-Aveja was convicted.36 It would therefore appear *225that the Ohio statute at issue would encompass fact patterns, among others, in which the defendant unlawfully entered a dwelling but did not form the intent to commit a crime on the premises until after that unlawful entry, or formed the intent after lawfully entering but while unlawfully “remaining'in.”
Though the Supreme Court’s decision in Taylor' does not answer the question of when intent to commit a crime must be formed when a “remaining in” statute was the basis of a prior conviction, the Court’s analysis of how and why it arrived upon its generic definition of burglary provides some guidance. The Court began its interpretive process by considering the language of § 924(e), as originally enacted in 1984, and two years later, when it was amended in 1986.37 In its original iteration, the statute defined “burglary” as “any felony consisting of entering or remaining surreptitiously within a building that is property of another with intent to engage in conduct constituting a Federal or State offense.”38 The 1986 amendment replaced “any felony” in that definition with “any crime punishable by á term of imprisonment exceeding one year.”39 Five months later, the statute was again amended, and though “burglary” was retained as a predicate offense for enhancing the sentence of an armed career criminal, the express definition of burglary was deleted or omitted from the statute.40 The Supreme Court drew three “observations”41 from its analysis of this history.
First, the Supreme. Court concluded from the 1984 and 1986 statutory definitions and the legislative history of the subsequent 1986 amendment effectuated by the Career Criminals Act of 1986 that “Congress singled out burglary (as opposed to other frequently committed property crimes such as larceny and auto theft) for inclusion ... because of its inherent potential for harm to persons.”42 The Court reasoned, “[t]he 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.”43 The Court also concluded that “Congress apparently thought that all burglaries serious enough to be punishable by imprisonment for more than a year constituted a category of crimes that shared this potential for violence and that were likely to be committed by career criminals.”44 The Court reasoned, “[t]here never was any proposal to limit the predicate offense to some special subclass of burglaries that might be espe-*226dally dangerous, such as those where the offender is armed, or the building is occupied, or the crime occurs at night.”45
Second, the Court concluded that “the enhancement provision always has embodied a categorical approach to the designation. of predicate offenses.”46 The Court reasoned that “Congress intended that the enhancement provision be triggered by crimes having certain specified elements, not by crimes that happened to be labeled ‘robbery’ or ‘burglary.’ ” 47
“Third,” the Supreme Court said, “the 1984 definition of burglary shows that Congress, at least at that time, had in mind a modern ‘generic’ view of burglary, roughly corresponding to the definitions of burglary in a majority of the States’ criminal codes.”48 The Court deduced that “[i]n adopting this definition, Congress both prevented offenders from invoking the arcane technicalities of the common-law definition of burglary to evade the sentence-enhancement provision, and protected offenders from the unfairness of having enhancement depend upon the label employed by the State of conviction.”49
The Supreme Court then concluded that “there is nothing in the history to show that Congress intended in 1986 to replace the 1984 ‘generic’ definition of burglary with something entirely different. Although the omission of a preexisting definition of a term often indicates Congress’ intent to reject that definition ... we draw no such inference here.”50
The Supreme Court rejected use of the common-law definition of burglary as the definition of that term in § 924(e) for several reasons. , “Most <.. States have expanded this [common-law] definition to include entry without a ‘breaking,’ structures other than dwellings, offenses committed in the daytime, entry with intent to commit a crime other than a felony, etc.”51 The Court observed that these “statutory development[s] ... [have] resulted in a modern crime which has little in common with its common-law ancestor except for the title of burglary,” and that “[t]he arcane. distinctions embedded in the common-law definitions have little relevance to modern law enforcement concerns.” 52
After considering the history of § 924(e), and rejecting the adoption of the common-law definition of burglary, the Court concluded that “Congress meant by ‘burglary’ the generic sense in which the term is now used in the criminal codes of most States.” 53 It then articulated the generic definition, quoting W. LaFave & A. Scott’s Substantive .Criminal Law for the propositions that-modern, statutes “generally require that the entry be unprivileged” and “typically describe the place as a ‘building’ or ‘structure,’ ” and that “[t]he prevailing view in'the modern codes is that
*227an intent to commit any offense will do.”54 The Court also stated that its generic definition “approximates that adopted by the drafters of the Model Penal Code,”55 which provided: “A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, 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.” 56 The Court additionally stated that its generic meaning of burglary “is practically identical to the 1984 definition that, in 1986, was omitted from the enhancement provision.”57 The Court reiterated that though that definition was omitted in the 1986 amendments, “there is simply no plausible alternative that Congress could have had in mind.”58 The Court also reiterated that Congress “did not wish to specify an exact formulation that an offense must meet,” and concluded that “a person has been convicted of burglary .., if he is convicted of any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.”59
If we were writing on a clean slate, we would consider the Ohio burglary statute at issue in light of these teachings of the Supreme Court when presented with a “remaining in” statute.
III
If the generic definition of burglary in Taylor does not require that the intent to commit a crime be formulated before or at the time of initially remaining in a building unlawfully, then the 1996 Ohio statute has each of the elements of generic burglary formulated in Taylor, as modified by the Guideline’s inclusion of the offense of “burglary of a dwelling.”.Those elements are “an unlawful or unprivileged entry into, or remaining in, a [dwelling60], with intent to commit a crime.”61 The question raised by this appeal is what the generic offense requires regarding the timing, of the intent to commit a crime.
Because the Supreme Court concluded in Taylor that there was no indication “that Congress intended ... to replace” the ACCA’s 1984 statutory definition of “generic” burglary,62 and because the Supreme Court observed that its generic definition of burglary “is practically identical to the [ACCA’s] 1984 definition,”63 it is instructive to compare the offense defined in the Ohio statute, section 2911.12, with the ACCA’s 1984 definition.
The ACCA defined burglary as “any felony consisting of entering or remaining shrreptitiously within a building that is property of another with intent to engage in conduct constituting a Federal or State offense.”64 Bernal-Aveja’s Ohio offense *228was a felony. The Ohio offense was committed when a defendant “by force, stealth, or deception” and without privilege knowingly entered or remained in a habitation of any person “with purpose to commit in the habitation any misdemeanor.”65 It would seem that use of force to accomplish the crime of burglary would be at least as culpable as, if not more culpable than, surreptitiously entering into or remaining on property. The Ohio offense is substantially the same as the ACCA’s 1984 definition. With regard to when intent was formed, as a grammatical matter, it would appear that the 1984 ACCA’s phrase “with intent to engage” would modify “remaining surreptitiously within” such that intent could be formed after entry while remaining in.
The Supreme Court concluded in Taylor that in the present version of the ACCA, “Congress meant by ‘burglary’ the generic sense in which the term is now used in the criminal codes of most States,”66 and therefore it is also instructive to consider how “most states” defined burglary. The Taylor decision cited the 1986 edition of Professor LaFave’s treatise on substantive criminal law as authoritative,67 and that treatise concluded not only that “remaining in” statutes had been adopted by many states but that “[t]his means, of course, that the requisite intent to commit a crime within need only exist at the time the defendant unlawfully remained within.”68 The 1986 version of LaFave’s treatise listed twenty-four states that had adopted “remaining in” burglary statutes.69 Ohio was not among them, but it is clear that the Ohio burglary statute at issue in the present case has a “remaining in” alternative means of committing burglary.70 The most recent edition of LaFave’s treatise lists twenty-nine states that have adopted “remaining in” statutes,71 though it likewise failed to list the Ohio burglary statute. Professor LaFave explained, with regard to the adoption of “remaining in” statutes by so many states, that
[t]his common statutory expansion in the definition of burglary makes great sense. A lawful entry does not foreclose the, kind of intrusion burglary is designed to reach, as is illustrated by the case of a bank customer who hides in the bank until it closes and then takes the bank’s money. Moreover, this expan*229sion forecloses any argument by a defendant found in premises then closed that he had entered -earlier when they were open.72
At least one other academic has concluded that since the time the Model Penal Code was promulgated, “the requirement of entry has become the minority approach. At least twenty-nine jurisdictions have modified the statutory entry requirement to include ‘remaining unlawfully’ or ‘remaining.’ ”73 This commentator, Professor Helen Anderson, concluded that “where the statute includes ‘remaining’ as an alternative to entry, the criminal intent may be formed at any time while the defendant remains oh the premises and need not have been formed at the time of entry.” 74
Professor LaFave’s 1986 treatise expressed the view that “remaining in” statutes should not “cover certain other situations in which the unlawful remaining ought not be treated as burglary,” and therefore “it is best to limit the remaining-within alternative to where that conduct is done surreptitiously.”75 An example offered of conduct that “ought not be treated as burglary” was “where a visitor in one’s home becomes involved in an argument with his host, threatens to punch him in the nose and is asked to leave, and then after he does not leave continues his threats.”76 The treatise listed Model Penal Code § 221.1 and Florida and New Jersey statutes as examples with such a, limitation.77 Model Penal Code § 221.1 did not include “remaining in,”78 so it differs from the twenty-four states that, according to LaFave’s treatise, have adopted “remaining in” burglary statutes. The New Jersey statute cited by Professor LaFave does not appear, necessarily, to provide that the defendant must form the intent to commit a crime when he initially remains surreptitiously in a structure.79
Similarly, Professor Anderson observed more recently that “a consensual visit that turns ugly might be prosecuted as a burglary” under a statute that includes “remaining in” as an alternative to entry because “the criminal intent may be formed at any time while the defendant remains on the premises and need not have been formed at the time of entry.”80 This out*230come would apparently be permissible under statutes in twenty-two of the twenty-nine jurisdictions listed by Professor Anderson, since, according to Professor Anderson’s analysis, only seven states having “remaining in” statutes have required that the remaining be “surreptitious” Or “concealed,”81 But in any event, the seven state statutes including the “surreptitious” or “concealed” exceptions do not necessarily require the defendant to form the intent to commit a crime prior to entry.
A conclusion that the generic offense of burglary requires that intent to commit a crime exist at the time of entry appears to be out of step with the twenty-nine “remaining in” statutes listed by Professor Anderson, and the twenty-four “remaining in” statutes listed by Professor LaFave at the time of the decision in Taylor, as well as the five other statutes more recently identified in LaFave’s treatise. If, as the Supreme Court concluded in Taylor, “burglary” is “the generic sense in which the term is now [in 1990] used in the criminal codes of most States,”82 then generic burglary does not require intent to commit a crime at the time of entry if the statute of conviction is a “remaining in” statute. Intent to commit a crime formed while “remaining in” suffices.
Judge Higginbotham’s concurring opinion asserts that “the act of ‘remaining in’ occurs at a discrete point in time, and to constitute burglary, the perpetrator must have intended to commit a further crime at that discrete point.”83 To hold otherwise, that opinion posits, “strains common sense,”84 would “confound[] the purpose of evenhanded sentencing sought after by the Sentencing Guidelines and related statutes,” and “fouls the mandate of Taylor itself.”85 As to the mandate of Taylor, the concurring opinion’s elements of “remaining in” burglary are not elements that were found “in the criminal codes of most States”86 in 1990, and therefore, those elements are not the elements of generic burglary. With regard to evenhanded sentencing and common sense, under the concurring opinion’s rationale, a person who enters lawfully, but secrets himself with the intent of committing theft during the night would receive a sentencing enhancement,, but such an enhancement would not apply to a person who unlawfully breaks into and enters a dwelling he thinks is unoccupied to “party,” sees that an occupant is asleep in her bedroom, and sexually assaults her.
It is not the prerogative of federal courts to make value judgments as to what *231elements a generic offense should have. It is the obligation of federal courts to ascertain from all of the States’ statutes the elements that are expressed in most of those States’ statutes as part of the process of distilling the elements of a generic offense.87 The Supreme Court stated in Taylor that it had undertaken such an analysis, with respect to burglary, concluding that it defined that offense in “the generic sense in which the term is now used in the criminal codes of most States.”88 It cannot be said that most of the States’ criminal codes defined “remaining in” burglary as Judge Higginbotham’s concurring opinion insists it must be defined. Accordingly, that opinion’s formulation is not generic “remaining in” burglary.
IV
The commentators’ conclusions that a majority of the States had adopted unlawful' “remaining in” statutes and that States having only unlawful entry offenses were in the minority remain accurate with respect to current-day burglary offenses. An analysis of the States’ current statutes, and state court decisions construing them, reflects that the number of States that have, offenses generally falling within a broad (though not necessarily generic) category of “burglary” and that define such an offense only with reference to “entry” onto a premises is slightly in the minority. Other States’ criminal statutes have both unlawful entry and unlawful “remaining in” in the definition of burglary, and some States consider “remaining in” to be a separate offense.
An examination of the Statés’ burglary offenses that define that crime solely with reference to unlawful “entry” reflects that a majority of these statutes require intent to commit a crime other than trespass on the premises at the time of unlawful entry. These statutes include:
Ind. Code Ann. § 35-43-2-1 (West 2012 & Supp. 2016)89
La. Stat. Ann. § 14:62 (2016)90
Md. Code Ann., CRiM. Law § 6-202 (Lex-isNexis 2012 & Supp. 2016)91
Mass. Gen. Laws ch. 266, § 14 (2008)92
MiCH. Comp. Laws § 750.110; § 750.110a (2004 & Supp. 2016)93
*232Minn. Stat. Ann. § 609.582 (West 2009)94
Miss. Code. Ann. § 97-17-28 (2014)95
Neb. Rev. St. § 28-507 (2008)96
Nev. Rev. Stat. § 205.060; § 205.065 (2015)97
N.J. Stat. Ann. § 20:18-2(1) (West 2015)98
N.M. Stat. Ann. § 30-16-3 (2004)99
N.C. Gen. Stat. § 14-51 (2015)100
Okla. Stat. tit. 21, § 1431 (2015)101
18 Pa. Stat. and Cons. Stat. Ann. § 3502 (West 2015)102
*23311 R.I. Gen. Laws § 11-8-1 (2002)103
S.C. Code Ann. § 16-11-812 (2015)104
Tenn. Code Ann. § 39-14-402(a)(i) (2014)
Tex. Penal Code Ann. § 30.02(a)(1) (West 2011)105
Wis. Stat. Ann. § 943.10 (West 2005)106
Some of the foregoing offenses may not constitute “generic” burglary because they are overly inclusive as to the type of premises on which a generic burglary may occur. For example, the Louisiana offense cited above includes theft from a vehicle,107 and the Nebraska offense includes “any real estate or any improvements erected thereon.”108 But ascertaining what generic burglary requires regarding intent to commit a crime on the premises would entail an examination of all state statutes, even those that might be over-inclusive in the final analysis, to arrive upon the “generic” definition of an offense.
A few state statutes define a burglary offense as involving only “entry” with intent to commit a crime at the time of entry or the commission of a crime after entry, but they do not require unlawful or unprivileged, entry. They therefore do not appear to include generic burglary. Such statutes include:
Cal. Penal Code § 459 (West 2010)109
Idaho Code § 18-1401 (2016)110
Nev. Rev. Stat. § 205.060 (2015)111
11 R.I. Gen. Laws § 11-8-3 (2002)112
*234W. Va. Code ANN. § 61-3-11 (LexisNexis 2014)113
A few other state burglary offenses are defined as involving “entry” without consent, but they do not require intent to commit another crime at the time of entry. Intent to commit a crime may be formed after unlawful entry, and therefore they do not-constitute generic burglary. These statutes appear to include:
Minn. Stat. Ann. § 609.582 (West 2009)114
Tenn. Code Ann, § 39-14-402(a)(3) (2014)115
Tex. Penal Code Ann. § 30.02(a)(3) (West 2011)116
Some state “unlawful entry or ‘remaining in’ ” statutes appear to have been construed to set forth two divisible offenses and, when only unlawful entry is charged, to require intent at the time of unlawful entry. If we treat these statutes as setting forth separate offenses, then they should logically be included in the analysis of “entry” offenses. These' statutes appear to include:
Conn. Gen. Stat. Ann. § 53a-101 (West 2012)117
720 Ill. Comp. Stat. 5/19-1 (West 2003)118
N.Y. Penal Law § 140.20 (McKinney 2010)119
*235But the focus of the present case is what “generic” burglary requires regarding intent when the statute of conviction was an unlawful entry or remaining in statute. An examination of the State offenses, at least in their current iterations, reflects that many of them do not appear to set forth two divisible offenses,120 i.e. unlawful entry and unlawful remaining in, and there is no “majority” view as to timing of.intent, though a majority of “remaining in” offenses do not appear to require the intent to commit a crime on the premises to have been formed at or before the time the unlawful remaining in occurs. .State “unlawful entry or remaining in”, statutes that have either been construed to permit intent to be formed during the trespass (including after deciding to remain in unlawfully) or are not considered divisible statutes, such that the jury does not have to be unanimous as to when intent was formed include:
Ala. Code § 13A-7-5 (2008 & Supp. 2012)121
Colo. Rev. Stat. Ann. § 18-4-202 (West 2013)122
Fla. Stat. Ann. § 810.02(l)(b)(2) (West 2007 & Supp. 2016)123
*236Ga. Code Ann. § 16-7-1 (2011 & Supp. 2016)124
720 III. Comp. Stat. 5/19-1 (West 2003)125
Iowa Code Ann. § 713.1 (West 2016)126
Kan. Stat. Ann. § 21-5807 (2007 & Supp. 2015)127
Ky. Rev. Stat. Ann. § 511.020 (LexisNexis 2014)128
Me. Rev. Stat. Ann. tit. 17-A, § 401 (2006 *237& Supp. 2015)129
Mo. Rev. Stat. § 569.160 (2016)130
Ohio Rev. Code Ann. §§ 2911.12, 2911.21(A)(1) (West 2006 & Supp. 2016)131
Utah Code Ann. § 76-6-202 (LexisNexis 2012)132
Wash. Rev. Code § 9A.52.020 (2015)133
Another unlawful entry or remaining in statute permits a conviction for burglary when the entry was unlawful but intent to commit a crime on the premises was formed after the unlawful entry: S.D. Codified Laws § 22-32-1 (2006).134
Accordingly, at least fourteen States currently have “remaining in” offenses that do not have as an element the timing requirement advocated by Judge Higginbotham’s concurring opinion. The state offenses that do have such an element aré few in number.
At least one state statute provides that intent to commit a crime on the premises *238must be present at the time of unlawful entry or at the time of lawful entry if the person, with intent to commit a crime, remains on the premises after the privilege to enter expires or the premises are no longer open to the public: Vt, Stat, Ann, tit. 13, § 1201 (2009 & Supp. 2016). State “remaining in” statutes that appear to require intent to commit a crime at the time that the defendant’s presence on the property first becomes unlawful include:
Alaska Stat. § 11.46.310 (2014)135
Ask. Code Ann. § 5-39-201 (2013)136
Conn. Gen. Stat. Ann, § 53a-101 (West 2012)137
Haw, Rev. Stat. Ann. § 708-810 (Lexis-Nexis 2016)138
N.Y. Penal Law § 140.20 (McKinney 2010)139 ...
OR. Rev. Stat. § 164.215 (2015)140
*239Of these seven state offenses, only five come within the- parameters advocated by Judge Higginbotham’s concurring opinion as “generic” “remaining in” burglary. That is because the Arkansas and Connecticut offenses have been construed to encompass those who lawfully enter and whose presence becomes unlawful only because, of the commission of a crime on the premises.141 The commission of the crime is considered to have implicitly revoked, or exceeded the limits of, the permission to enter.142 Such an offense is no different from an analytical perspective than the example .in Judge Higginbotham’s concurring opinion of “teenagers who remain in a house beyond their invitation intending only to party, then later decide to steal.”143 The Arkansas and Connecticut offenses also do not fit within the requirement espoused by Judge Higginbotham’s concurring opinion that “the perpetrator trespass while already harboring intent to commit a further crime.”144 Similarly, though the violent crimes considered to have revoked permission to be on the premises in the Arkansas and Connecticut decisions construing. “remaining in” are different in degree from shoplifting, the legal principles are the same; commission of a crime after lawful entry. It appears that only five state statutes actually embody what Judge Higginbotham’s concurring opinion describes as the “narrower approach to generic burglary’s ‘remaining in’ language”145 with respect to the timing of intent to commit a crime on the premises. There is no indication that the number of states that had adopted statutes embodying the “narrower approach” was any greater when Taylor was decided.
“Remaining in” statutes that appear to be broader than generic burglary because a shoplifter can be convicted include:
Ariz. Rev. Stat, Ann. § 13-1507 (2010)146
Va. Code Ann. § 18.2-90 (2014)147
*240It is unclear what certain other “remaining in” statutes require regarding the timing of intent because the state courts have not yet addressed the question:
Del. Code Ann. tit. 11, § 824 (2015)
Mont. Code Ann. § 45-6-204 (2014)148
N.H. Rev. Stat. Ann. § 635:1 (2016)
N.D. Cent. Code § 12.1-22-02 (2012)
Tenn. Code Ann. § 39-14^402(a)(2) (2014)
Tex. Penal Code Ann. § 30.02(a)(2) (West 2011)
Wyo. Stat. Ann. § 6-3-301 (2015)
Analysis of the current state “remaining in” burglary statutes reflects that very few of them require that intent to commit a crime on the premises be formed prior to or at the time of the unlawful remaining in the premises. It also cannot be said that a majority of the States have adopted “remaining in” statutes that require a jury to decide unanimously whether the defendant entered unlawfully or remained unlawfully.
V
The Sixth and Eighth Circuits have held, without discussing the timing of intent, that violations of the same Tennessee statute at issue in Herrera-Montes149 constitute generic burglary.150 Our decision in Herrera-Montes is therefore in direct conflict with other Circuit Court decisions. More broadly, the Circuit Courts are in conflict as to when generic burglary requires intent to commit a crime to be formed.
In United States v. Bonilla, the Fourth Circuit held that a conviction under Texas Penal Code section 30.02(a)(3) qualified as “burglary of a dwelling” under § 2L1.2 of the Guidelines.151 The Texas statute provided that “[a] person commits an offense if, without the effective consent of the owner, the person ... enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.”152 The Fourth Circuit agreed with the defendant that this offense “does not require that the intent exist at entry.”153 But the court did not agree that “this quirk as to the timing element is fatal under Taylor," 154 concluding that intent at entry is not an element of generic burglary, even if the statute of conviction is an unlawful “entry” statute and does not include “remaining in.”155
In Bonilla, The Fourth Circuit also considered the defendant’s argument that “a homeless person who unlawfully enters a home only to seek warmth, but while inside, forms an intent to steal” would pres*241ent less of a risk than a person who enters after plotting to commit a crime.156 That argument is similar to the trespassing-teenagers hypothetical discussed in Herrero-Montes.157 But the Fourth Circuit concluded such arguments are “flawed” and convictions for such offenses qualify as generic burglary because “Taylor does not distinguish between burglaries based on their comparative level of risk, but rather is concerned with a defendant’s (1) unlawful presence, (2) in a building or structure, (3) with the intent to commit a crime.”158 The Fourth Circuit recognized that its holding conflicted with our court’s decision in United States v. Constante,159 but concluded that the Fifth Circuit’s “reading of Taylor [is] too rigid.”160 The Texas statute at issue in Bonilla was virtually identical to the Tennessee statute at issue in Herrera-Montes, and accordingly, our decision in the latter case also conflicts with a Fourth Circuit decision.
The Sixth Circuit has held that a conviction under the Tennessee statute161 at issue in Herrera-Montes qualifies as generic burglary, contrary to our holding.162 The Tennessee statute at issue in Priddy defined four different burglary offenses, including the offense that occurs when, “without[] the effective consent of the property owner,” a defendant “[e]nters a building and commits or attempts to commit a felony or theft,”163 the offense at issue in Herrera-Montes.164 The Sixth Circuit did not expressly discuss the timing of when the intent to commit a crime must be formed, but it did not identify timing as an element in concluding that the Tennessee statute was congruent with Taylor.165 It is notable that Tennessee is' within the Sixth Circuit’s jurisdiction, and as this court observed in HerreroMontes, at least one Tennessee state court has held that the offense at issue in both Herrero-Montes, and the Sixth Circuit’s decision in Priddy, Tennessee Code section 39-14-402(a)(3), does not require intent to commit a crime on the premises to have been formed at the time of entry.166
*242Decisions from the Eighth Circuit appear to conflict with one another,167 though only, one discusses when a defendant charged with burglary must have formed the intent to commit a crime on the premises.168 In United States v. McArthur, a case arising under the ACCA, the Eighth Circuit held that a Minnesota burglary conviction was not for generic burglary because the offense did “not require that the defendant have formed the ‘intent to commit a crime’ at the time of the noncon-sensual entry or remaining in.”169 The Minnesota statute at issue provided that “[w]hoever ... enters a building without consent and steals or commits a felony or gross misdemeanor while in the building” commits burglary,170 and another Minnesota statute defined “enters a building without consent” to include either entering or remaining in a building without the owner’s consent.171 The Government argued that a person convicted under this statute for entering a building without consent and then committing one of the listed offenses “meets the ‘remaining in’ aspect of Taylor ’s definition” of burglary “because he must have developed the requisite intent at some point while ‘remaining in’ the building.”172 The Eighth Circuit rejected this argument. It concluded that “ ‘remaining in’ ...' is a discrete event that occurs at the moment when a perpetrator, who at one point was lawfully present, exceeds his license and overstays his welcome.”173 The court held that “[i]f the defendant does not have the requisite intent.at the moment he ‘remains,’ then he has not committed the crime of generic burglary.”174 Accordingly, the Eighth Circuit concluded that a conviction under the Minnesota statute “does not require that the defendant have formed the ‘intent to commit a crime’ at the time of the nonconsensual entry or remaining in” and therefore that “it does not qualify as a violent felony” under the ACCA.175
The Eighth Circuit’s decision in McAr-thur seems to conflict with a decision from that Circuit four months earlier in United States v. Pledge, which also involved the ACCA,176 and with United States v. Eason, which involved Sentencing Guideline § 4Bl.l(b).177 Neither Pledge nor Eason discussed when intent to commit a crime on the premises must be formed. But the court held in Pledge that “[a] burglary under Tenn. Code Ann. § 39-14-403 qualifies as a generic burglary offense and is categorically a violent felony.”178 Aggravated burglary under section 39-14-403 is “burglary of a habitation as defined in §§ 39-14-401 and 39-14-402.”179 Section 39-14-402 includes the following offense: “A person commits burglary who, without the effective consent of the property owner ... [e]nters a building and commits or *243attempts to commit a felony, theft or assault.”180 In Eason, the Eighth Circuit held that this same Tennessee offense “plainly” contained “the elements of generic burglary as defined by the Supreme Court in Taylor.”181 This Tennessee offense is very similar to the entry aspect of the Minnesota offense that the Eighth Circuit held in McArthur was not generic burglary.
In Pledge and Eason, the Eighth Circuit considered the same Tennessee statutes that were at issue in our court’s decision in Herrera-Montes.182 The Eighth Circuit’s conclusion that the Tennessee aggravated burglary offense was generic burglary is contrary to the conclusion in Herrera-Montes that it is not.
The Ninth Circuit has held that “Taylor allows for burglary convictions so long as the defendant formed the intent to commit a crime while unlawfully remaining on the premises, regardless of the legality of the entry.”183 That court reasoned that “[t]o hold otherwise would render Taylor’s ‘remaining in’ language surplusage.”184 The elements of the Utah offense under consideration were that an actor “‘enters or remains unlawfully in a building’ that constitutes a ‘dwelling’ with intent to commit a crime.”185 The Ninth Circuit observed that “the Utah Supreme Court held that to be convicted of-burglary ‘the actor must commit or form the intent to commit another crime at the time he enters or while he remains unlawfully in the building.’”186 The Ninth Circuit held that' the Utah offense constituted “burglary of a dwelling” under § 2L1.2 of the Guidelines.187
As can be seen, there is a division among the Circuit Courts as to the elements of generic burglary. There is no unanimity as to when the intent to commit a crime on the premises must be formed.
VI
Bernel-Aveja contends that this court’s decision in Herrera-Montes188 governs this case, and in our decision today, we have concluded that it does. We said in Herrera-Montes that Taylor's generic burglary definition 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 Dictionaey 197-98 (6th ed. 1990).”189 We stated that, “[f]or example, teenagers who unlawfully enter a house only to party, and only later decide to commit a crime, are not common burglars.” 190 However, the Model Penal Code is not a “remaining in” provision, it has not *244been widely adopted, and as discussed above, many states had adopted “remaining in” statutes when Taylor was decided. It also appears, as discussed above, that such statutes do not require the intent to commit another crime to have been formed at the time of entry.
Another decision of our court, though unpublished, observed that when a “remaining in” statute is at issue, requiring intent to commit a crime at the time of entry would be inconsistent with Taylor ⅛ formulation of generic burglary.191 That opinion said specifically: the “conclu[sion] that the definition of generic burglary requires that a defendant form the intent to commit a crime before entering a structure ... would be inconsistent with the ‘remaining in’ aspect of Taylor’s definition.”192 The panel in that case did not have to resolve the issue, however, since the standard of review was plain error, and the law was unclear in our circuit.193 That unpublished opinion concluded that the Herrera-Montes panel was not called upon “to reconcile the ‘remaining in’ aspect of Taylor with a requirement for intent at the time of entry.”194 Today, our panel has to confront that question, and we have concluded that because Herrera-Montes held broadly that intent at the time of entry is an element of generic burglary, we must follow Herrera-Montes.
However, to be clear, we did not have a “remaining in” statute before us in Herr-eras-Montes. The statute criminalized only unlawful entry, providing: “A person commits burglary who, without the effective consent of the property owner ... [e]nters a building and commits or attempts to commit a felony, theft, or assault.”195 Nor did the Herrera-Montes opinion characterize this Tennessee statute as a “remaining in” statute. To have done so would have been incorrect. The opinion did, however, offhandedly and entirely gratuitously address burglary by “remaining in” in dicta in one footnote.196 That discussion was entirely unnecessary to the holding in the case. It should also be noted that part of that footnote discussed remaining in after lawful entry.197 The Tennessee statute actually at issue criminalized only unlawful entry and as already discussed, had no “remaining in” component.
Today, Judge Higginbotham’s concurring opinion implies, if not states, that the statute before us in Herrera-Montes was a “remaining in” statute.198 That is demonstrably incorrect. Judge Higginbotham’s concurring opinion also states that the statute at issue in Herrera-Montes “could have come within generic burglary only under a broad reading of ‘remaining in’ in the generic definition.”199 But we did not, and were not required to, opine as to the *245meaning of “remaining in” to resolve the case. The fact that a single opinion from the Sixth Circuit, which refused to follow Herrera-Montes, observed that the Tennessee statute at issue was “also a ‘remaining-in’ variant of generic burglary,” 200 is not dispositive as to whether that statute actually sets forth a “remaining in” offense, as Judge Higginbotham’s concurring opinion suggests.201 The Tennessee statute did not contain the words “remaining-in” or their equivalent. It defined the offense only with reference to entry. The Herrera-Montes opinion’s errant discussion of “remaining in” burglary was nothing more than an unnecessary and erroneous declaration.
* * *
Only the Supreme Court can resolve the split among the Circuit Courts as to when formation of intent for purposes of generic burglary must occur. But until the Supreme Court speaks, whether a conviction under Ohio’s unlawful entry or remaining in statute is a generic burglary offense, and relatedly, what the generic offense of burglary by unlawfully remaining in requires with regard to when intent must be formed, are important questions that our court should decide en banc.
. See U.S. Sentencing Guidelines Manual app. C, amend. 802, at 149-50 (U.S. Sentencing Comm’n 2016).
. 18 U.S.C. § 924(e).
. See 8 U.S.C. § 1101(a)(43)(G).
. 490 F.3d 390 (5th Cir. 2007).
. 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (“We conclude that a person has been convicted of burglary for purposes of a § 924(e) enhancement if he is convicted of any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.”).
. See infra Part III.
. See Herrera-Montes, 490 F.3d at 391-92.
. See infra Parts III and IV.
. See, e.g., Taylor v. United States, 495 U.S. 575, 592, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ("We think that 'burglary' in § 924(e) must have some uniform definition independent of the labels employed by the various States’ criminal codes.”).
. See id. at 598, 110 S.Ct. 2143 ("Congress meant by ‘burglary’ the generic sense in which the term is now used in the criminal codes of most States.”); see also id. at 589, 110 S.Ct. 2143 (“[T]he 1984 definition of burglary shows that Congress, at least at that time, had in mind a modern 'generic' view of burglary, roughly corresponding to the definitions of burglary in a majority of the States' criminal codes.”).
. See, e.g., Gonzales v. Duenas-Alvarez, 549 U.S. 183, 190, 195-96, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) (listing States’ statutes to confirm the generic meaning of theft); Scheidler v. National Organization for Women, Inc., 537 U.S. 393, 410, 123 S.Ct. 1057, 154 L.Ed.2d 991 (2003) ("In Taylor, ... we concluded that in including ‘burglary’ as a violent crime in 18 U.S.C. § 924(e)’s sentencing enhancement provision for felons' possessin*221g firearms, Congress meant ‘burglary’ in 'the generic sense in which the term is now used in the criminal codes of most States.' ” (quoting Taylor, 495 U.S. at 598, 110 S.Ct. 2143)).
. See Infra Part IV.
. See ante at p. 217.
. See infra Part V.
. See United States v. Bonilla, 687 F.3d 188, 192-93 (4th Cir. 2012).
. See United States v. Reina-Rodriguez, 468 F.3d 1147, 1155-56 (9th Cir. 2006), overruled on other grounds by United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (citing Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)).
. See U.S. Sentencing Guidelines- Manual app. C, amend. 802, at 155 (U.S. Sentencing Comm’n 2016)
First, the Commission has received significant comment over several years from courts and stakeholders that the ‘categorical approach’ used to determine the particular level of enhancement under the existing guideline is overly complex and resource-intensive and often leads to litigation and uncertainty. The existing guideline’s single specific offense characteristic provides for enhancements of between 4 levels and 16 levels, based on the nature of a defendant’s most serious conviction that occurred before the defendant was ‘deported’ or 'unlawfully remained in the United States,’ Determining whether a predicate conviction qualifies for a particular level of enhancement requires application of the categorical approach to the *222penal statute underlying the prior conviction. See generally Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (establishing the categorical approach). Instead of the categorical approach, the amendment adopts a much simpler sentence-imposed model for determining the applicability of predicate convictions. The level of the sentencing enhancement for a prior conviction generally will be determined by the length of the sentence -imposed for the prior offense, not by the type of offense for which the defendant had been convicted.
. U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A) cmt. n.l(B)(iii) (U.S, Sentencing Comm'n 2014)
'Crime of violence’ means any of the following offenses under federal, state, or local law: murder, manslaughter, kidnapping, aggravated assault, -forcible, sex offenses (including where consent, to the conduct is not given , or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced), statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.
. Ohio Rev. Code Ann. § 2911.12 (West 1990) (amended July 1, 1996).
. Id.
. Id. § 2911.21(A)(1).
. U.S, Sentencing Guidelines Manual § 2L1.2 cmt. n.l(l)(B)(iii) (U.S, Sentencing Comm’n 2014).
. United States v. Ortega-Gonzaga, 490 F.3d 393, 395 (5th Cir. 2007) (referring to Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), but recognizing that in United States v. Murillo-Lopez, 444 F.3d 337, 344 (5th Cir. 2006), it "ma[de] sense” to “extend[] 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’ ... given that the court in Murillo-Lopez was called to define the ‘of a dwelling' part of 'burglary of a dwelling' ”).
. See United States v. Hernandez-Hernandez, 817 F.3d 207, 212 (5th Cir. 2016) (citing Taylor, 495 U.S. at 602, 110 S.Ct. 2143).
. 18 U.S.C. § 924(e).
. Taylor, 495 U.S, at 598, 110 S.Ct. 2143 ("We believe that Congress meant by ‘burglary’ the generic sense in which the term is now used in the criminal codes of most States,’’).
. Id.; see also id, at 599, 110 S.Ct. 2143 (“We conclude that a- person has been convicted of burglary ,if he is convicted of any crime, regardless of its exact definitions or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.”),
. Id. at 591, 110 S.Ct. 2143.
. Mathis v. United States, — U.S. —, 136 S.Ct. 2243, 2248-49, 195 L.Ed.2d 604 (2016) (citing Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2283-84, 186 L.Ed.2d 438 (2013)).
. Taylor, 495 U.S. at 598, 110 S.Ct. 2143.
. Ohio Rev. Code Ann. § 2911.12 (West 1990) (amended July 1, 1996), and id. § 2911.21(A)(1).
. Taylor, 495 U.S. at 598, 110 S.Ct. 2143.
. Id.
. Ohio Rev. Code Ann. § 2911.11(A) (West 2006 & Supp. 2016).
. State v. Fontes, 87 Ohio St.3d 527, 721 N.E.2d 1037, 1040 (2000).
. Compare Ohio Rev. Code Ann. § 2911.11(A)(1) (West 2006 & Supp. 2016) ("No person, by force, stealth, or deception, shall trespass in an occupied structure ... when another person other than an accomplice of the offender is present, with purpose to commit in the structure ... any criminal offense....”) with Ohio Rev. Code Ann. § 2911.12(A)(2) (West 1990) ("No person, by *225force, stealth, or deception, shall ... (2) Trespass in a permanent or temporary habitation of any person when any person is present or likely to be present, with pmpose to commit in the habitation any misdemeanor that is not a theft offense."); see also State v. Evett, No. 14CA0008-M, 2015 WL 4069588, at *3 (Ohio Ct. App. 2015) (applying Fontes to a conviction under § 2911.12(A)(1)).
. Taylor v. United States, 495 U.S. 575, 581— 82, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (citing Armed Career Criminal Act of 1984, Pub. L. 98-473, § 180, 398 Stat. 2185 (repealed 1986) and Firearms Owners’ Protection Act, Pub. L. 99-308, § 104, 100 Stat. 458 (1986)).
. Id. at 581, 110 S.Ct. 2143 (quoting § 1803, 98 Stat. at 2185 (repealed 1986)).
. See id. at 582, 110 S.Ct. 2143 (quoting § 104, 100 Stat. at 458).
. See id. (citing Career Criminals Amendment Act of 1986, Pub. L. 99-570, § 1402, 100 Stat. 3207-39).
. Id. at 588, 110 S.Ct. 2143.
. Id.
. Id.
. Id.
. Id.
. ' Id.
. Id.; cf. Descamps v. United States, — U.S. —, 133 S.Ct 2276, 2287, 186 L.Ed.2d 438 (2013) ("Congress ... meant [the ACCA] to function as an on-off switch, directing that a prior crime would qualify as a predicate offense in all cases or in none.”).
. Taylor, 495 U.S. at 589, 110 S.Ct. 2143 (1990).
. Id.
. Id. at 590, 110 S.Ct. 2143.
. Id. at 593, 110 S.Ct. 2143.
. Id.
. Id. at 598, 110 S.Ct. 2143.
. Id. (quoting W. LaFave & A. Scorr, Substantive Criminal Law § 8.13(a), (c), (e) (1986)).
. Id. at n.8.
. Model Penal Code § 221.1 (Am. Law. Inst. 1980).
. Taylor, 495 U.S. at 598, 110 S.Ct. 2143..
. Id.
. Id. at 599, 110 S.Ct. 2143.
. U.S. Sentencing Guidelines Manual § 2L1.2 cmt. n.1(B)(iii) (U.S. Sentencing Comm'n 2014).
. Taylor, 495 U.S. at 598, 110 S.Ct. 2143.
. Id. at 590, 110 S.Ct. 2143.
. Id. at 598, 110 S.Ct. 2143.
. Armed Career Criminal Act of 1984, Pub. L. No. 98-473, § 1803, 98 Stat. -2185 (repealed 1986).
. Ohio Rev. Code Ann. § 2911.12 (West 1990) (amended July 1, 1996).
. Taylor, 495 U.S. at 598, 110 S.Ct. 2143.
. Id. at 598 & n.8, 110 S.Ct. 2143.
. W. Lafave & A, Scott, Substantive Criminal Law § 8.13(b) (1986).
. Id. n.44.
. See Ohio Rev. Code Ann. § 2911.21(A)(1) (West 1990) (amended July 1, 1996) (providing that a person commits "criminal trespass” under Ohio law when she, "without privilege to do so, ... [kjnowingly enterfs] or remain[s] on the land or premises of another”).
. 3 W. LaFave, Substantive Criminal Law § 21.1(b) n.47 (2d ed.) (2016) (citing Ala. Code § 13a-7-5; Alaska Stat. § 11.46.300; Ariz. Rev. Stat. Ann. § 13-1506; Ark. Code Ann. § 5-39-201; Colo. Rev. Stat. Ann. § 18-4-202; Conn. Gen. Stat. Ann. § 53a-101; Del. Code Ann. Tit. II, § 824; Fla. Stat. Ann. § 810.02; Ga. Code Ann. § 16-7-1; Haw. Rev. Stat, § 708-810; 720 III. Comp. Stat. Ann. 5/19-1; Iowa Code Ann, § 713.1; ICan. Stat. Ann. § 21-5807; Ky. Rev. Stat. Ann. § 511.020; Me. Rev. Stat. Ann. tit. 17-A, § 401; Mo. Ann, Stat. § 569.160; Mont. Code Ann. § 45-6-204; N.H. Rev. Stat. Ann. § 635.1; N.J. Stat. Ann. § 2c:18-2; N.D. Cent. Code § 12.1-22-02; Or. Rev. Stat. § 164.215; S.D. Codified Laws § 22-32-1; Tenn. Code Ann. § 39-14-402;- Tex. Penal Code Ann. § 30.02; Utah Code Ann. § 76-6-202; Vt. Stat. Ann. Tit. 13, § 1201; Va. Code Ann. § 18.2-89; Wash. Rev. Code § 9a.52.020; Wyo. Stat. Ann. § 6-3-301).
. W. LaFave & A. Scott, Substantive Criminal Law § 8.13(b) (1986).
. Helen A. Anderson, From the Thief in the Night to the Guest Who Stayed Too Long: The Evolution of Burglary in the Shadow of the Common Law, 45 Ind. L. Rev. 629, 645 & n.113 (2012).
. Id. at 646.
. W. LaFave & A. Scott, Substantive Criminal Law § 8.13(b) (1986).
. Id. n.47.
. Id. n.48 (citing Model Penal Code § 221.1 (Am. Law Inst. 1980); Fla. Stat. Ann. § 810.02; N.J. Stat. Ann. 2C:18-2).
. See Model Penal Code § 221.1 (Am. Law Inst. 1980) ("A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, 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.”).
. N.J, Stat. Ann. § 2C:18-2 (West 1981), which provided;
A person is guilty of burglary if, with purpose to commit an offense therein he:
(1) Enters a structure, or a separately secured or occupied portion thereof, unless the structure was at the time open to the public or the actor is licensed or privileged to enter; or
(2) Surreptitiously remains in a structure or a separately secured or occupied portion thereof knowing that he is not licensed or privileged to do so.
. Helen A. Anderson, From the Thief in the Night to the Guest Who Stayed Too Long: The Evolution of Burglary in the Shadow of the *230Common Law, 45 Ind. L. Rev, 629, 646 & n.122 (2012) (citing People v. Leonard, 83 A.D.3d 1113, 921 N.Y.S.2d 337, 340 (2011) (holding, in a case in which the father of a child was admitted by the mother of the child for a visit, that” [a]s for defendant's conviction for burglary in the second degree, the People were required to present evidence establishing that, after defendant was admitted into the mother’s home, he remained there unlawfully with the intent to commit a crime and used or threatened to use a dangerous instrument (see Penal Law § 140.25[1][c])”) and State v. Morton, 147 Ohio App.3d 43, 768 N.E.2d 730, 734, 737-38 (2002) (affirming conviction of defendant who was admitted to apartment by occupant but when asked to leave, engaged in a physical altercation and a struggle over a firearm during which the apartment owner’s eyes were gouged out of their sockets and his ear was bitten off by the defendant)).
. Id. 645-46, 645 n.113, 646 nn.114 & 116.
. Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).
. See ante at p. 215.
. See ante at p. 218.
. See ante at p. 217.
. See Taylor, 495 U.S. at 598, 110 S.Ct. 2143.
. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 190, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007).
. Taylor, 495 U.S. at 598, 110 S.Ct. 2143.
. See Richards v. State, 681 N.E.2d 208, 212 (Ind. 1997) (explaining that “the State had to prove that when [the defendant] entered the building he had the intent to commit rape”).
. See State v. Jones, 426 So.2d 1323, 1325 (La, 1983) (“The defendant must have had the specific intent to commit either a felony or a theft at the time of his unauthorized entry, both for the crimes of simple burglary and attempted simple burglary.”).
. See Walls v. State, 228 Md.App. 646, 142 A.3d 631, 652 (Md. Ct. Spec. App. 2016) ("Maryland’s statutory' offense of burglary in the first degree is 'akin to common law burglary, without the element of in the night-tíme.’ It requires proof that a defendant (1) broke into the dwelling of another; and (2) did so with the intent to commit theft or a crime of violence.”) (citations omitted).
. See Commonwealth v. Negron, 462 Mass. 102, 967 N.E.2d 99, 105 (2012) (“The elements of aggravated burglary are: (1) the defendant broke into and entered the dwelling of. another; (2) the breaking ’and entering occurred at night; (3) at the time of the breaking and entering the defendant intended to commit a felony....”).
. See People v. Cornell, 466 Mich. 335, 646 N.W.2d 127, 141 (2002) ("The elements of breaking and entering with intent to commit larceny are: (1) the defendant broke into a building, (2) the defendant entered the building, and (3) at the time of the breaking and entering, the defendant intended to commit a larceny therein,”).
. The statute provides; “Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice, commits burglary in the first degree.” (emphasis added). See also State v. Davis, 864 N.W.2d 171, 177 (Minn. 2015) (agreeing that when the defendant did not commit the underlying crime, a jury instruction was erroneous when it “permitted the jury to find him guilty of felony murder if the jury determined that he formed an intent to commit the theft after entering the building, even if he did not actually commit a theft”),
. See Cortez v. State, 876 So.2d 1026, 1030 (Miss. Ct. App. 2003) (“The State seldom has direct and positive testimony expressly showing the specific intent of an intruder at the time he unlawfully breaks into a dwelling house; however, such testimony is not essential to establish the intent to commit a crime.”).
. The statute provides: “A person commits burglary if such person willfully, maliciously, and forcibly breaks and enters any real estate or any improvements erected thereon with intent to commit any felony or with intent to steal property of any value.” See also State v. Carter, 205 Neb. 407, 288 N.W.2d 35, 36 (1980) ("The crime of burglary is complete when there is a breaking and entering with a requisite intent, in this instance, to steal.”).
. Though section 205.060 does not require an unlawful entry, section 205.065 provides for an inference of felonious intent at the time of entry if the entry is unlawful. See Sheriff, Clark Cty. v. Stevens, 97 Nev. 316, 630 P.2d 256, 257 (1981) ("The offense of burglary is complete when the house or other building is entered with the specific intent to commit larceny or any felony therein.”).
. See N.J. Stat. Ann. § 2C:18-2 (West 2015):
A person is guilty of burglary if, with purpose to commit an offense therein or thereon he:
(1) Enters a research facility, structure, or a separately secured or occupied portion thereof unless the structure was at the time open to the public or the actor is licensed or privileged to enter; ....
See also State v. Jijon, 264 N.J.Super. 405, 624 A.2d 1029, 1030 (1993) (“It is now well established that burglary is complete upon entry with purpose of committing an offense.”), aff'd, 135 N.J. 471, 640 A.2d 1152 (1994).
. See State v. Jennings, 102 N.M. 89, 691 P.2d 882, 885 (N.M. Ct. App. 1984) ("Burglary is a specific intent crime. It requires an unauthorized entry with the intent to commit any felony or theft therein.... An unauthorized presence in a structure is evidence from which a jury could reasonably infer the necessary intent to commit a felony or theft therein.”) (citations omitted).
. See State v. Montgomery, 341 N.C. 553, 461 S.E.2d 732, 739 (1995) ("If at the time of a breaking and entering a person does not possess the intent to commit a felony therein, he may only properly be convicted of misdemeanor breaking or entering, a lesser included offense of first-degree burglary.”).
. See Rowland v. State, 817 P.2d 263, 265-66 (Okla. Crim. App. 1991) ("To warrant conviction for Burglary in the First Degree ... it is necessary for the [defendant] to have the intent to commit a crime at the time of his unlawful entry of the dwelling.”).
. See Commonwealth v. Russell, 313 Pa.Super. 534, 460 A.2d 316, 321 (1983) (“In order to be convicted of burglary, the defendant must have formed the intent to commit a crime when he entered the victim's residence, not after he entered.... The entry must be contemporaneous with the intent to commit a crime therein.”) (citation omitted). A recently enacted revision of the statute does not alter the intent requirement. See 2016 Pa. Legis. Serv. Act 2016-158 (S.B. 1062).
. See State v. Contreras-Cruz, 765 A.2d 849, 852 (R.I. 2001) (holding that this provision "incorporates the common law definition of the crime,” which "is the breaking and entering the dwelling-house of another in the nighttime with the intent to commit a felony therein,' whether the felony be actually committed or not.”) (quoting State v. Hudson, 53 R.I. 229, 165 A. 649, 650 (1933)).
. See Pinckney v. State, 368 S.C. 502, 629 S.E.2d 367, 369 (2006) ("Further, there is no requirement that the intent element is satisfied only by proving an intent to commit .the specific crime that is charged in the indictment as an aggravating circumstance. The only requirement is that there be intent to commit any crime at the time of . entry.”).
. See Devaughn v. State, 749 S.W.2d 62, 65 (Tex. Crim. App. 1988) (en banc) ("It is well settled that the intent to commit a felony or theft must exist at the moment of the entry or there is no offense under § 30.02(a)(1).”).
. See Levesque v. State, 63 Wis.2d 412, 217 N.W.2d 317, 319 (1974) ("To constitute the crime of burglary under sec. 943.10(l)(a), one must enter the building without the consent of the person in possession. Concurrently with the entry he must have the intention to steal or commit a felony.”).
. See La. Stat. Ann. § 14:62 (2016).
. See Neb. Rev. St. § 28-507 (2008).
. See Taylor v. United States, 495 U.S. 575, 591, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (noting that “California defines ‘burglary’ so broadly as to include shoplifting and theft of goods from a ‘locked’ but unoccupied automobile”).
. The statute provides: "Every person who enters any [enumerated structure] with intent to commit any theft or any felony, is guilty of burglary.” See also State v. Rawlings, 159 Idaho 498, 363 P.3d 339, 342 (2015) (burglary requires only "entry with the intent to steal anything he finds that he might desire to appropriate”).
. See Sheriff, Clark Cty. v. Stevens, 97 Nev. 316, 630 P.2d 256, 257 (1981) ("The offense of burglary is complete when the house or other building is entered with the specific intent to commit larceny or any felony therein.”).
. The statute provides: “Every person who, with intent to commit [an enumerated felony], shall enter any dwelling house or apartment at any time of the day or night, or who with such intent shall, during the daytime, enter any other building, or ship or vessel, shall be [punished by fine and/or imprisonment].”
. The statute provides: "If any person shall, in the nighttime, break and enter, or enter without breaking, or shall, in the daytime, break and enter, the dwelling house, or an outhouse adjoining thereto or occupied therewith, of another, with intent to commit a crime therein, he shall be deemed guilty of burglary.” (emphasis added).
. The statute provides: "Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice, commits burglary in the first degree.” (emphasis added).
. The statute provides: “A person commits burglary who, without tire effective consent of the properly owner: ... Enters a building and commits or attempts to commit a felony, theft or assault.”
. The statute provides; "A person commits an offense if, without the effective consent of the owner, the person: ... enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.” See also Rivera v. State, 808 S.W,2d 80, 92 (Tex. Crim. App. 1991) (en banc) ("The State need neither plead nor prove a burglar’s intent to commit a felony or theft upon entry under (a)(3)....”).
. See State v. Edwards, 10 Conn.App. 503, 524 A.2d 648, 652-53 (1987) (holding that failure to instruct the jury that it needed to agree on whether defendant entered unlawfully or unlawfully remained would have been error if the state had presented evidence of unlawful remaining and unlawful entry (i.e. that entry had been lawful) because the two , types of burglary recognized are conceptually different actions); State v. Belton, 190 Conn. 496, 461 A.2d 973, 976 (1983) (explaining that "to remain unlawfully contemplates an initial legal entry which becomes unlawful at the time that the actor’s right, privilege or license to remain is extinguished”).
.See People v. Boose, 139 Ill.App.3d 471, 94 Ill.Dec. 211, 487 N.E.2d 1088, 1090 (1985) (overturning a conviction when the defendant, who entered a store during business hours,' fell asleep, awoke after hours, and was in possession of store merchandise,' was charged only with illegal entry, explaining that "the statute states the offense in the alternative: a defendant commits burglary of a building either by illegal entry or by illegally .remaining” and when the state charges only burglary by illegal entry, “the State has the burden of showing that Boose entered [the building] both without authority and with the intent to steal”); People v. Boone, 217 Ill. App.3d 532, 160 Ill.Dec. 463, 577 N.E.2d 788, 789 (1991) ("To sustain a conviction for burglary, the State is required to prove either (1) the defendant entered the building without authority and with the intent to commit a felony or theft, or (2) he remained within the building without authority and with the intent to commit a felony or theft.”).
. See People v. Gaines, 74 N.Y.2d 358, 547 N.Y.S.2d 620, 546 N.E.2d 913, 914 (1989) (addressing whether, in a case of unlawful entry, "the jury should have been instructed that they must find defendant’s intent to commit a crime in the building existed at the time of the entry,” or whether such an instruction was unnecessary "because the 'remains unlawfully' element of the statute means that such an intent may be formed after defendant’s unlawful entry” and concluding that the New York statute “requires that intent to commit a crime in the building exist at the time of the unlawful entry”),
; See Mathis v. United States, — U.S. —, 136 S.Ct. 2243, 2249-2250, 195 L.Ed.2d 604 (2016) (explaining the difference between "divisible” statutes and "alternative means” statutes).
, See Gratton v. State, 456 So.2d 865, 872 (Ala. Crim. App. 1984) (observing that a jury instruction that intent must be formed at the time of entry was properly refused as an incomplete statement of current Alabama law, explaining that while "[p]rior to the adoption of Alabama’s new Criminal Code, the statutory crime of burglary in the first degree (§ 13-2-40) required that the intent to steal or to commit á felony be concurrent with the brealdng and entering,” under the current code, "the intent to commit a crime may be concurrent with the unlawful entry or it may be formed after the entry and while the accused remains unlawfully”).
. The statute provides; "A person commits first degree burglary if the person knowingly enters unlawfully, or remains unlawfully after a lawful or unlawful entry, in a building or occupied structure with intent to commit therein a crime....” See also People v. Bondurant, 296 P.3d 200, 214 (Colo. App. 2012) (holding that, under current law "to commit .first degree burglary a person had to “knowingly enter[] unlawfully, or remain[] unlawfully after a lawful or unlawful entry, in a building or occupied structure with intent to commit therein a crime” and overruling a prior case that had "require[d] proof that the defendant intended to commit a crime inside at thé moment he first became a trespasser”) (citing Cooper v. People, 973 P.2d 1234, 1241 (Colo. 1999)); id. (“We agree with other divisions of this court that the 1999 amendments legislatively overruled Cooper with respect to the intent element of burglary.”) (citing People v. Oram, 217 P.3d 883, 892 (Colo. App. 2009) ("Intent to commit a crime against another person or property while in the dwelling can be formed either before or after the unlawful entry”), aff’d on other grounds, 255 P.3d 1032 (Colo. 2011); People v. Larkins, 109 P.3d 1003, 1004 (Colo. App. 2004); People v. Wartena, 296 P.3d 136, 140 (Colo. App. 2012)).
.State v. Herron, 70 So.3d 705, 707 (Fla. Dist. Ct. App. 2011) (affirming burglary conviction even though defendant had not entered unlawfully but was, asked to leave and refused, and only subsequently formed intent to commit assault, reasoning that "[a]lthough at first [the defendant] only remained in the : apartment with a mere suspicion that [the occupant]’s boyfriend was in the apartment, *236once [the defendant] opened tine closet door his suspicion was met and he remained in the apartment and fought”).
. See Williams v. State, 268 Ga.App. 384, 601 S.E.2d 833, 836 (2004) (upholding a conviction in a case in which the defendant both entered and remained in without consent, reasoning that "[b]ecause the evidence supported the jury’s conclusion that [the defendant] assaulted Markell with a knife in Allen’s house, it was authorized to determine that at some point before he entered the house or while he remained in it, he intended to commit the aggravated assault”) (internal quotation omitted) (footnote omitted); see also id. at 836 ("The intent necessary for commission of burglary ... need not be formed at the precise moment of entry, but can be formed thereafter while the perpetrator is remaining on the premises.”) (internal quotation omitted) (footnote omitted).
. See People v. Boose, 139 Ill.App.3d 471, 94 Ill.Dec. 211, 487 N.E.2d 1088, 1090 (1985) (suggesting in a case in which the defendant was charged only with illegal entry, that conviction could have been upheld had he been charged under the "remaining in” prong of the statute, even if there was no evidence that his intent to steal merchandise from a store was formed before he awoke in a closet after the store had closed, observing that while “[a] criminal intent formulated after a lawful entry will satisfy the offenses of larceny (retail theft) or burglary by illegally remaining, [it] will not ... satisfy the offense of burglary by illegal entry”).
. See State v. Dible, 538 N.W.2d 267, 270-71 (Iowa 1995) (rejecting the defendant’s argument that the decision to remain over and the formation of an intent to assault had to occur contemporaneously, explaining that that the defendant’s "decision to remain may have begun when he refused to comply with [the occupants’] request that he leave, but it remained intact from the time he returned to the kitchen up until the time he left [the occupants’] home” and that "[b]ecause he also formed an intent to assault when he returned to the kitchen, [he] satisfied the statute’s contemporaneous intent requirement; he was remaining over and doing so with the intent to commit an assault” and citing with approval John L. Yeager & Ronald L. Carlson, 4 Iowa Practice, Criminal Law & Procedure § 294 (1979) ("[W]ill the [S]tate have to prove that [the defendant] formed the necessary intent at the time his presence in the place became unlawful, or will it be sufficient to prove that at some time while he was unlawfully present he formed the intent ... to commit an assault? The [statutory] language suggests the latter.”)).
. See State v. Gutierrez, 285 Kan. 332, 172 P.3d 18, 22 (2007) ("Remaining within refers to a defendant’s presence in the building’s interior after any entering into, authorized or unauthorized, has been accomplished.”); id. at 23 ("[T]he intent to commit a felony and the unauthorized entering into or remaining within must at some point in time coexist") (emphasis added); State v. Frierson, 298 Kan. 1005, 319 P.3d 515, 522 (2014) (holding that unanimity of the jury as to the means, entering or remaining within, by which the crime is committed is not required, but the state must present sufficient evidence to permit a jury to find each means beyond a reasonable doubt).
. See McCarthy v. Commonwealth, 867 S.W.2d 469, 471 (Ky. 1993) (holding, in a case in which the defendant unlawfully entered by kicking down the door after being denied entry but argued he entered the house only to "confer with his wife,” and did not intend an assault upon entry, that the defendant "may be convicted of the crime of burglary providing the jury finds that he knowingly entered the building with intent to commit a crime or that he remained unlawfully in the building with intent to commit a crime” and that "even if one believes that appellant did not have the requisite intent as he entered the house, one could surely believe he subsequently formed the intent necessary to be guilty of the crime of burglary”).
. See State v. Harding, 392 A,2d 538, 541 n.2 (Me. 1978) (concluding, in a case involving only unlawful entry, that there- was no obvious error in an instruction to the jury that "[i]f a person surreptitiously remains, once having gained entrance, ... knowing he is not licensed to be there, and formulates the intent after surreptitiously remaining in there, .'.. he can have the intent at that time”).
. See State v. Rollins, 882 S.W.2d 314, 317-18 (Mo. Ct. App. 1994) (upholding conviction of defendant charged only with unlawfully remaining in, despite concluding that he also entered unlawfully by obtaining entrance through artifice, reasoning that "[sjince defendant was not licensed to enter the apartment [because he gained admission by artifice], he was likewise not licensed to remain there”). Missouri has redrafted the statute effective January 2017, but the changes are primarily cosmetic (changing "crime” to “offense” and "he” to "he or she.” The substance of the statute remains the same. Mo. Rev. Stat. § 569.160 (2016 & Supp. 2016).
. See State v. Fontes, 87 Ohio St.3d 527, 721 N.E.2d 1037, 1040 (2000) (holding that "a defendant may form the purpose to commit a criminal offense at any point during the course of a trespass”).
. See State v. Rudolph, .970 P.2d 1221, 1228-29 (Utah 1998). The court rejected the argument that the "remaining unlawfully” provision was only intended to reach "those cases where the actor initially enters a building lawfully but then remains there after his or her right to do so has expired for purposes of committing a crime,” stating that
While this may be true, it does not necessarily follow that the "remaining unlawfully" provision is confined to those situations where the initial entry was lawful. We believe that such an interpretation would create an anomalous result. For instance, under Rudolph’s interpretation of the statute, one who enters lawfully but then remains unlawfully and forms the intent to commit another felony, theft, or assault is guilty of burglary while one who enters unlawfully and thereafter forms that same intent is guilty only of trespass. We are unable to see the distinction between the two scenarios. In our view, the actor in the second scenario is at least as dangerous and culpable as the actor in the first. Therefore, we are not satisfied that our legislature intended such a result when it enacted our current burglary statute.... [W]e hold that a person is guilty of burglary ... if he forms the intent to commit a felony, theft, or assault at the time he unlawfully enters a building or at any time thereafter while he continues to remain there unlawfully.
. See State v. Allen, 127 Wash.App. 125, 110 P.3d 849, 854 (2005) (expressing agreement with the Supreme Court of Utah’s analysis in Rudolph, 970 P.2d at 1229).
, See State v. DeNoyer, 541 N.W.2d 725, 732 (S.D. 1995) (holding, where evidence indicated that defendant entered without permission and raped an occupant and where there was no evidence of permission to enter, defendant was not entitled to an instruction "that in order to be found guilty of burglary, he must have had the intent to .rape the victim when he entered her home" because “the current burglary statute simply requires that the person remain in the structure after forming the intent to commit a crime”).
. See Pushruk v. State, 780 P.2d 1044, 1048 (Alaska Ct. App. 1989) (staling in dicta when only unlawful entry was at issue that "to find a defendant guilty of burglary, the state must show the defendant had the intent to commit an additional crime at the time his presence on the premises first became unlawful, i.e., at the time that he first trespassed, entered or remained unlawfully on the premises”).
. See Holt v. State, 2011 Ark. 391, 384 S.W.3d 498, 505 (2011) (observing that even if the defendant had been invited into the dwelling, “he certainly was not privileged to remain there once he began telling [the, victim] ‘I told you I could get in anytime I wanted to and ‘if I can’t have you, no one can’ and stabbing her”).
. See State v. Edwards, 10 Conn.App. 503, 524 A,2d 648, 652-53 (1987) (holding that failure to instruct the jury that it needed to agree on whether defendant entered unlawfully or unlawfully remained would have been error if the state had presented evidence of unlawful remaining and unlawful entry because the two types of burglary recognized are conceptually different actions); State v. Belton, 190 Conn. 496, 461 A.2d 973, 976 (1983) (explaining that "to remain unlawfully contemplates an initial legal entry which becomes unlawful at the time that the actor's right, privilege or license to remain is extinguished”); see also State v. Brooks, 88 Conn. App. 204, 868 A.2d 778, 782 n.2 (2005) (reasoning that even if entry had been "with implicit consent, ... ‘vicious assault’ ... was clearly not within the scope of that consent,” and therefore the defendant had remained unlawfully).
. State v. Mahoe, 972 P.2d 287, 293 (Haw. 1998) ("A perpetrator ‘remains unlawfully’ for the purposes of a burglary prosecution only in situations in which the individual makes an initial lawful entry, that subsequently becomes unlawful.”); id. at 291 ("It would be an , unwarranted extension of Hawaii’s modern burglary statute to expand the offense of burglary to include situations in which the criminal intent develops after an unlawful entry or remaining has occurred.”); id. at 289-90 (appearing to require jury unanimity as to the conduct (entering or remaining), that underlies the burglary conviction).
. See People v. Gaines, 74 N.Y.2d 358, 547 N.Y.S.2d 620, 546 N.E.2d 913, 915-16 (1989) (concluding that” in order to be guilty of burglary for unlawful remaining, a defendant must have entered legally, but remain for the purpose of committing a crime after authorization to be on the premises terminates, explaining; “[b]y the words 'remains unlawfully’ the Legislature sought to broaden the definition of criminal trespass, not to eliminate the requirement that the act constituting criminal trespass be accompanied by contemporaneous intent to commit a crime.... In either [unlawful entry or unlawful remaining], 'contemporaneous intent is required.”).
. See State v. White, 341 Or. 624, 147 P.3d 313, 321 (2006) (“[T]he legislature included the ‘remains unlawfully’ wording in the burglary statute solely to clarify that burglary could occur by remaining unlawfully after an initial lawful entry. It did not intend to provide that a defendant who commits burglary by entering a building unlawfully commits an additional, separate violation of the burglary statute by remaining in the dwelling thereafter.”); In re J.N.S., 258 Or.App. 310, 308 P.3d 1112, 1117 (2013) ("[W]e hold that second-degree burglary may be committed in two alternative ways: (1) entering a building unlawfully with the intent to commit a crime therein; or (2) entering a building lawfully, *239but then remaining unlawfully—viz., failing to leave after authorization to be present expires or is revoked—with the intent to commit a crime therein,”); id, at 1118 (“If the trespass begins when a defendant remains in a building after authorization has expired or has been revoked, then we ask whether the defendant possessed the requisite criminal intent at the time of the unlawful remaining.”).
. See Holt v. State, 2011 Ark. 391, 384 S.W.3d 498, 505 (2011) (observing that even if the defendant had been invited into the dwelling, "he certainly was not privileged to remain there once he began telling [the victim] 'I told you I could get in anytime I 1 wanted to’ and 'if I can't have you, no one can’ and stabbing her”); State v. Brooks, 88 Conn.App. 204, 868 A.2d 778, 782 n.2 (2005) (reasoning that even if entry had been with implicit consent, "vicious assault ... was clearly not within the scope of that consent" and “[t]hus, the defendant unlawfully remained within the meaning of the statute”).
. See id.
. See ante atp, 217.
. See ante atp. 218.
, See ante at p. 216.
, See State v. Belcher, 161 Ariz. 133, 776 P,2d 811, 812 (Ariz. Ct. App. 1989) (upholding a- burglary conviction when jeans were stolen from a store'during business hours,' reasoning “[t]he requisite' intent to commit burglary may be formed after a person enters a store in all innocence”).
. See Clark v. Commonwealth, 22 Va.App. 673, 472 S.E.2d 663, 663 (Va. 1996), on reh’g, 24 Va.App, 253, 481 S.E.2d 495 (Va. 1997) (affirming burglary conviction when defendant entered store at night while it was open for business and committed theft while what appeared to be the butt of a gun was showing from his pocket; the court reasoned “[w]e hold that under Code § 18,2-90, a person who enters a store intending to commit robbery therein, enters the store unlawfully,”); id. at 677 ("We reiterate our holding in Johns that ‘[i]t would be an impeachment of the common sense of mankind to say that ... a thief who enters the store with intent to steal does so with the owner’s consent and upon *240his invitation.’ ”) (quoting Johns v. Commonwealth, 10 Va.App. 283, 392 S.E.2d 487, 489 (1990)).
. See State v. Manthie, 197 Mont. 56, 641 P.2d 454, 456 (1982) (holding that evidénce was sufficient to support a finding of either unlawful entry or unlawful remaining in, but it is not clear what jury was instructed regarding timing of intent to commit another crime on the premises).
. United States v. Herrera-Montes, 490 F.3d 390 (5th Cir. 2007).
. See United States v. Pledge, 821 F.3d 1035, 1037 (8th Cir. 2016): United States v. Priddy, 808 F.3d 676, 684 (6th Cir. 2015); United States v. Eason, 643 F.3d 622, 624 (8th Cir. 2011); United States v. Nance, 481 F.3d 882, 887-88 (6th Cir. 2007); United States v. Anderson, 923 F.2d 450, 454 (6th Cir. 1991).
. United States v. Bonilla, 687 F.3d 188, 190, 193 (4th Cir. 2012).
. Id. at 192 (internal quotation marks omitted) (quoting Tex. Penal Code Ann. § 30.02 (West 2011)).
. Id. at 192-93.
. Id. at 193.
. Id.
. Id.
. United States v. Herrera-Montes, 490 F.3d 390, 392 (5th Cir. 2007).
. Bonilla, 687 F.3d at 193.
. 544 F.3d 584 (5th Cir. 2008) (per curiam).
. Bonilla, 687 F.3d at 194.
. Tenn. Code Ann. § 39-14~402(a)(3).
. See United States v. Priddy, 808 F.3d 676, 684 (6th Cir. 2015); see also United States v. Nance, 481 F.3d 882, 887-88 (6th Cir. 2007) (observing in a case under the ACCA that “the weight of authority indicates that Tennessee’s aggravated burglary statute is generic” and holding that because an aggravated burglary under Tennessee law occurs when an individual enters a habitation without effective, consent of the property owner and intends to commit a felony, it is generic burglary); United States v. Anderson, 923 F.2d 450, 454 (6th Cir. 1991) (holding in a case under the ACCA that an enhanced sentence was proper because "Anderson was convicted of violating Tennessee’s burglary statute,” which, as the court noted, "contains all of the[ ] elements” outlined in Taylor).
. Priddy, 808 F.3d at. 684 (quoting Tenn. Code Ann. § 3.9-14-402(a)(3) (1990)).
. See United States v. Herrera-Montes, 490 F.3d 390, 391 (5th Cir. 2007)1
. See Priddy, 808 F.3d at 684.
. See United States v. Herrera-Montes, 490 F.3d 390, 392 n.2 (5th Cir. 2007) (observing that "[t]he 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) (hplding that § 39-14-402(a)(3) "requires only that a felony be committed or attempted once the perpetrator enters the building. Criminal intent does not have to occur either prior to or simultaneous with the entry.”) (citations omitted).
. Compare United States v. McArthur, 836 F.3d 931, 943-44 (8th Cir. 2016), with United States v. Pledge, 821 F.3d 1035, 1037 (8th Cir. 2016), and United States v. Bason, 643 F.3d 622, 624 (8th Cir. 2011).
. See McArthur, 836 F.3d at 931, 943-44.
. Id. at 944 (citing Minn. Stat. § 609.582, subdiv. 3).
. Id. at 942 (quoting § 609.582, subdiv. 3).
. Id. (citing § 609.581, subdiv. 4).
. Id. at 943.
. Id. at 944.
. Id.
. Id.
. 821 F.3d 1035, 1037 (8th Cir. 2016).
. 643 F.3d 622, 623 (8th Cir. 2011).
. Pledge, 821 F.3d at 1037 (citing United States v. Priddy, 808 F.3d 676, 684 (6th Cir. 2015)).
. Tenn. Code Ann. § 39-14-403 (2014).
. Id. § 39—14—402(a)(3).
. Eason, 643 F.3d at 624.
. Pledge, 821 F.3d at 1037 (examining Tenn. Code Ann. § 39-14-403, which refers to § 39-14-402 for elements); Eason, 643 F.3d at 624 (examining Tenn. Code Ann. § 39-14-402); United States v. Herrera-Montes, 490 F.3d 390, 391 (5th Cir. 2007) (examining Tenn. Code Ann. § 39-14-403, which refers to § 39-14-402 for elements).
. United States v. Reina-Rodriguez, 468 F.3d 1147, 1155 (9th Cir. 2006), overruled on other grounds by United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc) (citing Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct 2143, 109 L.Ed.2d 607 (1990)).
. Id.
. Id. (citing Utah Code Ann. § 76-6-202(1)-(2)).
. Id. at 1156 (quoting State v:Rudolph, 970 P.2d 1221, 1229 (Utah 1998)).
. Id. at 1157.
. 490 F.3d 390 (5th Cir. 2007).
. Herrera-Montes, 490 F.3d at 392.
. Id.
. United States v. Davis, 339 Fed.Appx. 359, 360 (5th Cir. 2009) (per curiam).
. Id.
. Id. at 361.
. Id.
. United States v. Herrera-Montes, 490 F.3d 390, 391 (5th Cir. 2007) (quoting Tenn. Code Ann. § 39-14-402(a)(3)).
. See id. at 392 n.l ("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.”).
. See id.
. See ante at 217.
. See ante at 216.
. See United States v. Priddy, 808 F.3d 676, 684 (6th Cir. 2015).
. See ante at 216.