Thursday, October 28, 2010

GA Residential Burglary Statute Is Within Curtilage of Generic Burglary of a Dwelling

United States v. Garcia, No. 09-20587 (5th Cir. Oct. 27, 2010) (Barksdale, Stewart, Southwick)

Another day, another COV case.  The opinion doesn't contain anything new on the categorical approach or any meta-COV issues; it's just one more to add to your list.

The context: Illegal reentry case, the 16-level COV enhancement under guideline §2L1.2 (which includes burglary of a dwelling as an enumerated COV).

The prior offense at issue: Georgia burglary of a dwelling.

The defense argument: Generic burglary of a dwelling doesn't include entries into structures within a home's curtilage, only entries into the actual dwelling house.  Georgia burglary of a dwelling historically encompassed entries into outbuildings.  Although the current version of the burglary statute no longer explicitly mentions curtilage, a Georgia court of appeals decision post-dating the statutory change cited an older pre-change curtilage case when defining the term "dwelling house" as used in the burglary statute.  Therefore, Q.E.D.

The court's holding: You're right about the exclusion of curtilage from the the generic definition of "burglary of a dwelling."  But you're wrong about the Q.E.D. part.
We conclude that none of the Georgia opinions interpreting the current version of the Georgia burglary statute has held that a “dwelling house” includes structures within the curtilage. The current statute has other provisions that allow for conviction if entry is into certain other buildings, but those structures are not “dwelling houses.” The term “dwelling” within the Georgia burglary statute comports with the ordinary, contemporary definition of that term.

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