Texas Burglary of a Habitation with Intent to Commit Theft is COV (plain error)

US v. Morales-Mota, No. 12-40491, (5th Cir. 2013) (Smith, Prado, Higginson) (per curiam)

The Fifth Circuit really means it this time. Seven years ago, the Fifth Circuit held that burglary of a habitation under Texas Penal Code § 30.02(a)(1) constitutes burglary of a dwelling and supports an enhancement under U.S.S.G. § 2L1.2, United States v. Garcia-Mendez, 420 F.3d 454 (5th Cir. 2005), and it did so again last week.

Defense argued that the definition of "owner"—a person who has "a greater right to possession of the property than the actor"—that is part of the Texas burglary definition made the statute broader than the generic definition of burglary. In an unpublished decision, the Fifth Circuit rejected a similar argument in an ACCA case. United States v. Joslin, No. 11-40863, 2012 WL 3488717 (5th Cir. Aug. 14, 2012) (unpublished). In Morales-Mota, the Fifth Circuit found the reasoning in Joslin persuasive and held that the COV enhancement was proper. According to the Joslin panel:

Joslin has failed to provide on appeal any evidence that Congress intended to exclude Texas’ unique definition of ownership when applying the ACCA. In Taylor v. United States, the Supreme Court found that Congress listed burglary, along with arson, in its enumerated offenses because of the crime’s "inherent potential for harm to persons." 495 U.S. at 588, 110 S.Ct. 2143. The Court found that Congress intended to prohibit crimes that often result in the possibility of violence between the offender and an occupant. Id. Merely maintaining an inferior possessory interest in a habitation does not extinguish the potential violence that may result when a person enters a habitation with intent to commit theft.

So, Texas burglary of a habitation with intent to commit theft remains a § 2L1.2 crime of violence... at least on plain error review.