Panel Holds, Contrary to Prior Panel and Supreme Court Precedent, That TX Burglary of a Habitation Is Still a §2L1.2 16-Level COV

United States v. Cardenas-Cardenas, No. 08-40210 (5th Cir. Sept. 25, 2008) (per curiam) (Jolly, Benavides, Haynes)

The panel really should reconsider this decision, because it conflicts with prior panel precedent, treats binding Supreme Court predecent as dictum, and relies on state case law that is not on point for a critical issue in this case.

First, a little background. Recall that in United States v. Garcia-Mendez, the Fifth Circuit held that burglary of a habitation, in violation of Tex. Penal Code § 30.02(a)(1), is equivalent to "burglary of a dwelling," and thus a 16-level COV for purposes of guideline §2L1.2(b)(1)(A)(ii). Garcia had argued that the Texas offense is broader than the generic offense, because the Texas definition of "habitation" includes not just the habitation itself, but also structures "appurtenant to" the habitation. Without really addressing that argument, the court in Garcia-Mendez simply pointed to its earlier decision in United States v. Hornsby, which declared, without analysis, that "burglary of a habitation is considered a crime of violence" under the COV definition found in guideline §4B1.2.

Fast-forward to the Supreme Court's decision in James v. United States, which held that an offense under Florida's burglary statute constitutes a "violent felony" under the ACCA. Specifically, the Court held that the Florida offense qualifies under "residual clause" portion of the "violent felony" definition found in 18 U.S.C. § 924(e)(2)(B)(ii), which includes a crime that "is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]" (emphasis added). But on the way there, the Court also held that the offense is not equivalent to generic "burglary," because the Flordia statute reaches entries into a home's curtilage:

We agree that the inclusion of curtilage takes Florida’s underlying offense of burglary outside the definition of "generic burglary" set forth in Taylor, which requires an unlawful entry into, or remaining in, "a building or other structure." 495 U. S., at 598 (emphasis added). But that conclusion is not dispositive, because the Government does not argue that James’ conviction for attempted burglary constitutes "burglary" under § 924(e)(2)(B)(ii). Rather, it relies on the residual provision of that clause, which—as the Court has recognized—can cover conduct that is outside the strict definition of, but nevertheless similar to, generic burglary. Id., at 600, n. 9.

Which brings us to Cardenas-Cardenas, in which Mr. Cardenas argued that James effectively overruled Garcia-Mendez (which would mean the district court erred in assigning a 16-level COV enhancement on the basis of his prior Texas conviction for burglary of a habitation when calculating his Guidelines range). The court disagreed.

As for the curtilage question, the court said that,

In James, the Supreme Court noted in dicta that because the Florida burglary statute at issue in that case criminalized the mere unlawful entry onto the curtilage of a structure, rather than entry into the structure itself, the statute contemplates conduct beyond generic burglary. Id. at 1599. This, however, was not the holding of James, which did not present the issue whether burglary in Florida constitutes an enumerated offense that could be used to impose a guidelines sentencing adjustment under 2L1.2. Rather, James raised the question whether a Florida burglary conviction was a violent felony for purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e). Id. at 1590; see also United States v. Gomez-Guerra, 485 F.3d 301, 303 (5th Cir.), cert. denied, 128 S. Ct. 156 (2007).

This is contrary to prior panel precedent, which has treated James's discussion of curtilage and burglary as a holding, not dictum, and as binding on the interpretation of "burglary of a dwelling" under guideline §2L1.2(b)(1)(A)(ii).

In United States v. Gomez-Guerra, a Fifth Circuit panel held that Florida's burglary statute is broader than generic burglary of a dwelling, and therefore not categorically a 16-level COV under §2L1.2, because it encompasses unauthorized entry into the curtilage around a dwelling, not just entry into the dwelling itself. Gomez-Guerra cited James as authority for that holding, quoting James's statement "that the inclusion of curtilage takes Florida’s underlying offense of burglary outside the definition of ‘generic burglary’ set forth in Taylor, which requires an unlawful entry into, or remaining in, ‘a building or other structure.’” By refusing to follow Gomez-Guerra's lead on that point, Cardenas-Cardenas violates the prior-panel-precedent rule. (It is also curious that Cardenas-Cardenas would reject this portion of James as dictum, when the Fifth Circuit has previously treated a James footnote as a reaffirmance of Almendarez-Torres, even though Almendarez-Torres's ongoing vitality was not at issue in James.)

Also, Gomez-Guerra is not the first opinion from the Fifth Circuit to treat the Supreme Court's interpretation of "burglary" in the ACCA's "violent felony" definition as binding for purposes of §2L1.2. Remember that the "generic burglary" definition James considered comes from the Supreme Court's decision in Taylor v. United States. In United States v. Murillo-Lopez, a §2L1.2 case, the Fifth Circuit held that "'burglary of a dwelling' includes the elements of generic burglary as stated in Taylor but it also includes, at a minimum, tents or vessels used for human habitation." Later, in United States v. Ortega-Gonzaga, also a §2L1.2 case, the Fifth Circuit reiterated that "[b]ecause 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.'" Thus, if Taylor's definition of generic burglary is binding on §2L1.2, then so is James's. (Not to mention the fact that it's strange for Cardenas-Cardenas to reject James on the ground that it involved the ACCA's "violent felony" definition rather than §2L1.2's COV definition, when the case that Cardenas-Cardenas treats as binding relied on a case interpreting §4B1.2's COV definition, which is nearly identical to the ACCA's "violent felony" definition.)

But these aren't the only flaws in Cardenas-Cardenas. The panel goes on to say that

Cardenas-Cardenas’s argument is unavailing even under the James dicta. In contrast to Florida’s burglary statute, “habitation” under § 30.02(a)(1) does not include the curtilage surrounding the habitable structure. See § 30.01(1); St. Julian v. State, 874 S.W.2d 669, 671 (Tex. Crim. App. 1994). Consequently, James does not undermine our conclusions in Garcia-Mendez that a violation of § 30.02(a)(1) constitutes “burglary of a dwelling” as that phrase is generically used and, concomitantly, that a conviction under that statute will support a sentencing adjustment under § 2L1.2(b)(1)(A)(ii).

This, too, is wrong, because St. Julian involved the definition of a "building" for purpose of the Texas burglary statute, not the term "habitation." The two are distinct, as footnote 3 of St. Julian explains (with emphasis added):

Appellant also urges us to follow Swain v. State, 583 S.W.2d 775 (Tex. Crim. App. 1979). However, Swain dealt with burglary of a habitation and for that reason is not applicable to the instant case. Brief analysis demonstrates why. The definitions provided in the Penal Code indicate that the “portion of a building” language at issue in the instant case is only meant to apply in the context of burglary of a building as opposed to burglary of a habitation. The Penal Code defines “habitation” to include “structure[s] appurtenant to or connected with,” but does not require the structure to be “enclosed.” Tex.Penal Code Ann. § 30.01(1)(B) (Vernon 1989). By contrast, the definition of “building” includes the requirement of enclosure without making reference to any structures “appurtenant to or connected with.” Id. at § 30.01(2). Therefore, Swain, a burglary of a habitation case which held that the burglary statute was not intended to encompass “an entry upon an unenclosed and unsecured stairway attached to a residence”, does not help us resolve the issue in the instant case.

(Cardenas-Cardenas's reliance on St. Julian can perhaps be blamed on Gomez-Guerra, which cited it as well (albeit for a background point that wasn't essential to the holding). But it's hard to ignore that foonote.)

So we know St. Julian isn't on point, but what about Swain? Well, it doesn't mean that the Cardenas-Cardenas panel is right about curtilage under the Texas statute. After all, the statutory definition of "habitation" includes structures "appurtenant to" a dwelling. And there are cases holding that outlying structures, such as an unattached garage, are appurtenant to a dwelling and therefore covered by the "habitation" definition. See, e.g., Jones v. State, 690 S.W.2d 318, 319-20 (Tex. App.–Dallas 1985, pet. ref’d). Reading the statute and the case law together, it appears that "open" curtilage is beyond the definition of a "habitation," but structures within the curtilage are considered a "habitation." And it's even possible that a structure outside the curtilage could be considered "appurtenant to" a dwelling. In any event, the court is wrong to say that the Texas burglary statute's "habitation" excludes all curtilage.

For these reasons, the panel really should reconsider this case. At a minimum, it should more clearly explain why its view is consistent with prior panel precedent, and why its understanding of the scope of the Texas burglary statute is correct.