Thursday, December 26, 2013

Washington Residential Burglary Is § 2L1.2 Crime of Violence

Guerrero pled guilty to illegal reentry in violation of 8 U.S.C. § 1326 and possessing a firearm as a prohibited person in violation of 18 U.S.C. §§ 922(g)(5)(A).  Over Guerrero’s objection, the district court determined that his prior conviction for residential burglary in Washington, Wash. Rev. Code § 9A.52.025, is a “crime of violence” both under § 2L1.2 and § 4B1.2(a).  The court applied the enhancements and sentenced Guerrero accordingly.

Guerrero argues that the Washington statute was broader than the generic definition of burglary because it includes fenced areas.  Washington defines a dwelling as “any building or structure . . . which is used or ordinarily used by a person for lodging” and “building” as “any dwelling, fenced area, vehicle, railway car, cargo container, or any other structure used for lodging of persons or for carrying on business therein . . . .”  The panel rejects this argument, finding “there is little or no ‘realistic probability’ that a Washington court would apply the statute to anything other than the structures permitted by” Supreme Court and Fifth Circuit precedent.  See, e.g., United States v. Castillo-Morales, 507 F.3d 873, 875 (5th Cir. 2007) (defining burglary of a dwelling as the unlawful entry into or remaining within, with the intent to commit a crime, a “structure, tent, or vessel where someone lives”).  The panel recognizes that the Ninth Circuit reached the opposite conclusion in United States v. Wenner, 351 F.3d 969 (9th Cir. 2003), finding that Washington has a broader definition of dwelling.  The panel, however, justified its different conclusion because of “the benefit of an additional decade of jurisprudence in which Washington’s courts have consistently interpreted the term such that it denotes and connotes traditional structures, and only those used for human habitation.”  Thus, Washington residential burglary is a crime of violence for purposes of § 2L1.2(b)(1)(A).

Note: The opinion makes a few confusing misstatements that do not affect the ultimate analysis.  Don’t let those confuse you.  For instance, it applies the U.S.S.G. § 4B1.2 definition of a “crime of violence” instead of the definition in § 2L1.2.  Both § 4B1.2 and § 2L1.2 state that “burglary of a dwelling” is a crime of violence, and the § 4B1.2 definition also applies to this case because the guideline for his firearm conviction, U.S.S.G. § 2K2.1, refers to the crime of violence definition at § 4B1.2.  Also, the opinion states that Guerrero pled guilty to “knowing unlawful presence in the United States, in violation of 6 U.S.C. §§ 202(3) & 202(4).”  He really pled guilty to illegal reentry in violation of 8 U.S.C. § 1326.  Being present in the United States is not a crime unless it satisfies the criteria of “found in” described in 8 U.S.C. §1326.  Section 202 of Title 6 of the U.S.C. merely enunciates the responsibilities of the Under Secretary for Border and Transportation Security.

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