Monday, July 17, 2006

Alien's Prior Arkansas Burglary Conviction Qualifies as "Crime of Violence" Under U.S.S.G. §2L1.2(b)(1)(A)(ii)

United States v. Mendoza-Sanchez, No. 03-40658 (5th Cir. July 14, 2006) (per curiam)

Mendoza pled guilty to illegal reentry, in violation of 8 U.S.C. § 1326. The district court found that his prior Arkansas burglary conviction was for a "crime-of-violence" for purposes of the 16-level enhancement under U.S.S.G. §2L1.2(b)(1)(A)(ii). Mendoza challenged that finding on appeal. Utilizing a "common sense approach," the court of appeals holds that Mendoza admitted sufficient facts at his change-of-plea hearing to support a finding that his prior burglary conviction involved the burglary of a "dwelling," thus subjecting him to the 16-level COV enhancement.

Mendoza argued, and the court agreed, that the Arkansas burglary statute underlying his conviction is broader than "burglary of a dwelling" because it applies to structures other than dwellings. Mendoza further argued that the Government could not establish that the prior conviction involved the burglary of a dwelling, as opposed to, say, a business, because neither the charging document nor the judgment identified the type of structure that he burgled. However, the court of appeals held that Mendoza admitted sufficient facts to establish that he was convicted of burglarzing a dwelling, pointing to the following exchange from his change-of-plea hearing in which the district court asked Mendoza whether he had previously been convicted of an aggravated felony:

MR. ANDY GUARDIOLA: Felony burglary is a five-year sentence, your Honor.

THE COURT: Burglary.

THE INTERPRETER: A house. A home.

THE COURT: You went to the house without permission, right? Do you accept that?


Slip op. at 6-7. According to the court, "In the context of this exchange, it is clear to us that the court's question 'you went into the house without permission ' referred back to the interpreter's use of 'house' and 'home' as synonymous. When Mendoza's admission that he entered the home (or dwelling) without permission is added to the allegations of the information, this adequately establishes his conviction of a crime of violence." Id. at 7.

A couple of points: First, it is not clear from the quoted exchange whether Mendoza was admitting to having burglarized a dwelling (as opposed to some other type of structure), or whether he was simply admitting to the fact that he had been convicted of burglary. This is especially so in light of the fact that the exchange occurred through an interpreter, and legal terms, in particular, can present translation difficulties.

Second, the court used a "common sense approach" to arrive at this holding, rather than the traditional Taylor categorical approach. The court doesn't clearly explain how this common-sense approach differs, if at all, from the Taylor categorical approach, nor does it explain why the enumerated-offense prong of the 16-level COV definition would call for a different analysis than the force-element prong. Instead, the court relied on the Fifth Circuit's earlier panel opinion in United States v. Izaguirre-Flores, 405 F.3d 270 (5th Cir.) (per curiam), cert. denied, 126 S. Ct. 253 (2005), which itself is arguably contrary to an even earlier panel opinion in United States v. Dominguez-Ochoa, 386 F.3d 639 (5th Cir. 2004) (applying Taylor categorical approach to determine whether Texas offense of criminally negligent homicide was equivalent to enumerated offense of manslaughter), cert. denied, 543 U.S. 1131 (2005). Other cases have applied the Taylor categorical approach to the enumerated-offense prong, without suggesting that the Izaguirre-Flores common-sense approach is any different in substance from the categorical approach. See, e.g., United States v. Torres-Diaz, 438 F.3d 529 (5th Cir.), cert. denied, 126 S. Ct. 1487 (2006). It therefore remains unclear what difference, if any, there is between the two approaches. But to the extent that the common-sense approach allows a broader inquiry than the categorical approach, it could very well run afoul of the due process and Sixth Amendment concerns underlying Taylor and Shepard.

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