California First-Degree Burglary is COV Under 18 U.S.C. § 16(b), and Therefore Aggravated Felony

United States v. Echeverria-Gomez, No. 09-50261 (5th Cir. Dec. 8, 2010) (per curiam) (Jolly, Higginbotham, Smith)

We know that burglary under Cal. Penal  Code § 459 is not generic "burglary" because it does not require that the entry be unlawful or unprivileged.  And for that reason, it does not trigger a 16-level COV enhancement under the illegal reentry guideline, §2L1.2.  But we also know that there's more than one way to skin a cat COV definition applicable to illegal reentry cases: 18 U.S.C. § 16, which is incorporated in the definition of "aggravated felony."  Does California burglary fit that one?

Yes and no.  It's not a COV under § 16(a) because it lacks a force element.  But it does qualify under § 16(b), which includes felony offenses "that, by [their] nature, involve[ ] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense[?]"  First-degree burglary does:

Under California law, a person commits second-degree burglary if he enters any structure with the intent to commit larceny or a felony. A person commits first-degree burglary only if he commits “burglary of an inhabited dwelling house.” A dwelling house is “a structure where people ordinarily live.” A dwelling house is inhabited if it is “currently being used for dwelling purposes, whether occupied or not.” A conviction for first-degree burglary under California Penal Code §§ 459 & 460(a) thus requires proof of a total of three elements: (1) entry into a dwelling house; (2) that was inhabited at the time of the entry; (3) with the intent to commit larceny or a felony.

We hold that first-degree burglary under California Penal Code §§ 459 & 460(a) is a “crime of violence” within the meaning of 18 U.S.C. § 16(b). California law founds its distinction between first- and second-degree burglary “upon the risk of personal injury involved,” and “the higher degree of the burglary law is intended to prevent those situations which are most dangerous, most likely to cause personal injury.” As the Supreme Court of California has explained:

Burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation—the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence. The laws are primarily designed, then, . . . to forestall the germination of a situation dangerous to personal safety. . . . [E]ntry into an inhabited structure is recognized as most dangerous and most likely to create personal injury, justifying assignment of the greater degree [under] § 460 . . . .

Because entry into an inhabited dwelling house is a statutory element of the offense of first-degree burglary in California, the offense is by its nature one that involves a substantial risk that physical force against the person or property of another will be used in the course of committing the offense.

The court also relied on a Ninth Circuit decision so holding, as well as the Supreme Court's decision in James v. United States, which observed that "'[t]he main risk of burglary arises not from the simple physical act of wrongfully entering onto another’s property, but rather from the possibility of a face-to-face confrontation between the burglar and a third party,' such as 'an occupant.'"

But hang on . . . doesn't the fact that California burglary can be committed without an unlawful or unprivileged entry suggest that it doesn't necessarily present the same risk of confrontation that a generically-defined burglary presents?  Citing James yet again, the court says:

That a first-degree burglary in California could, in theory, involve a privileged or lawful entry does not change the fact that, “in the ordinary case,” there is a substantial risk that a burglar will use physical force against the occupant of a residence to aid in the commission of a residential burglary.