Monday, April 23, 2007

Generic "Burglary of a Dwelling" Does Not Include Entries Into Curtilage; Requires Entry Into Dwelling Itself

United States v. Gomez-Guerra, No. 05-41789 (5th Cir. Apr. 23, 2007) (per curiam) (Jones, Garwood, Garza)

Yet another COV opinion, again involving the COV definition applicable to the 16-level enhancement under U.S.S.G. ยง2L1.2(b)(1)(A)(ii). This time the question is whether the defendant's Florida burglary conviction constitutes generic "burglary of a dwelling," an enumerated COV.

The answer: no.

Why? Florida's burglary statute prohibits entries into a dwelling's curtilage. The court concludes "that the 'ordinary, contemporary, common meaning' of 'burglary of a dwelling' does not extend to the grounds around the dwelling, but actually requires unlawful or unprivileged entry into, or remaining in, the dwelling itself. Because the curtilage is the grounds around the dwelling and not the dwelling itself, we cannot hold that Gomez was convicted of the enumerated offense of 'burglary of a dwelling.'" (citations omitted).

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