To Be Generic Burglary, the Entry or Remaining-In Must Be Unlawful, and Intent to Commit Other Crime Must Exist at Time of Entry or Remaining-In

United States v. Herrera-Montes, No. 06-41426 (5th Cir. June 25, 2007) (Higginbotham, Davis, Wiener)

United States v. Ortega-Gonzaga, No. 06-40493 (5th Cir. June 25, 2007) (Higginbotham, Davis, Wiener)

You're getting a two-for-one post on these opinions because they cover the same basic ground and cite each other in the process (thereby forming something of a jurisprudential Möbius strip). The issue in both cases was whether a prior state conviction qualified as generic "burglary of a dwelling" for purposes of the 16-level crime of violence enhancement in U.S.S.G. §2L1.2(b)(1)(A)(ii). Because there was no dispute that the prior offenses involved structures that would constitute "dwellings," the focus was on the "burglary" half of "burglary of a dwelling." The court held that definition of generic burglary divined in Taylor v. United States controls that question, and that the statutes at issue in these cases were broader than Taylor burglary.

Let's start with Ortega-Gonzaga. The defendant had a prior conviction for burglary under Cal. Penal Code § 459, which prohibits entering a building with the intent to commit larceny or any other felony. Section 459 does not require that the entry be unlawful or unprivileged. The court held:

Because we see no reason to create a separate, parallel federal common-law definition for “burglary,” Taylor’s definition of “burglary” controls when defining the “burglary” part of “burglary of a dwelling” under the Guidelines.

At that point, the answer to the question was simple. The Taylor burglary definition requires an "unlawful or unprivileged entry into, or remaining in" the structure. Section 459 does not, so it's not generic burglary. The court helpfully provided a couple of examples to illustrate the point:

For example, a cable repairman may enter a house with intent to rape, but because he enters lawfully and with privilege, there is no “burglary.” Likewise, a shoplifter who lawfully enters a store with the intent to steal may later commit theft, but not burglary.

The court also notes that the "result avoids a split with the Ninth Circuit, which has held that Cal. Penal Code § 459 does not proscribe 'burglary of a dwelling' because it does not require proof that the entry be 'unlawful or unprivileged.'"

Moving on to Herrera-Montes . . . Herrera had a prior Tennessee conviction for aggravated battery. Tennessee's burglary definition contains four alternative methods of committing burglary. Herrera's conviction was under Tenn. Code Ann. § 39-14-402(a)(3), which provides that "[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[.]" The plain text of (a)(3), as Tennessee courts have recognized, does not require that the perptrator intend to commit the other offense at the time of the entry. Generic burglary? Nope:

Taylor requires that the defendant intend to commit a crime at the time of unlawful entry or remaining in, as do the Model Penal Code § 221.1 and Blacks' Law Dictionary 197-98 (6th ed. 1990). Consequently, under the categorical approach, Herrera's prior conviction was not “burglary of a dwelling,” thus not a crime of violence, because his statute of conviction did not require such intent. For example, teenagers who unlawfully enter a house only to party, and only later decide to commit a crime, are not common burglars.

As the court notes, this holding isn't limited to the Tennesee statute. Texas has a nearly identical enter-then-commit-crime provision in its burglary definition (Tex. Penal Code § 30.02(a)(3)), so the holding in Herrera-Montez would apply with equal force to anyone convicted under that provision (or in any situation where Taylor-Shepard-sanctioned documents can't eliminate the possbility that the conviction could have rested on § 30.02(a)(3)).

Also note that these cases aren't limited to just the §2L1.2 COV definition. It's clear from the reasoning of Ortega-Gonzaga that the Taylor federal common-law definition of "burglary" applies to other statutes and guidelines that use the term "burglary" or "burglary . . . ." For example, the aggravated felony definition includes "burglary" offenses in § 1101(a)(43)(G). Also, the COV definition in guideline §4B1.2(a) (which applies to career offender and ACCA enhancements, among other guideline provisions) includes "burglary of a dwelling." The Taylor definition should apply to those provisions, as well.

Finally, don't assume that Cal. Penal Code § 459 and the Tennessee and Texas burglary definitions are the only ones that are broader than Taylor burglary. If you've got a client with a prior burglary conviction that might trigger a statutory or guideline enhancement, take a close look at the state statute. For example, some states have "breaking and entering" offenses that may look like burglary at first glace, but may only prohibit unprivileged entries without any intent to commit some other crime.