Aggravated Felonies

(A)  Definition of the Generic Offense. [53]  In United States v. Taylor, [54] the Supreme Court noted that the states have widely different definitions of burglary.[55]  As an example, it pointed to California’s definition of burglary as being defined so “broadly as to include shoplifting and theft of goods from a ‘locked’ but unoccupied automobile,” whereas burglary traditionally referred only to buildings.[56]   The court did not want federal defendants receiving different sentences based on the vagaries of such disparate state laws, and so created a generic definition applicable nation-wide.  For the same reason, this definition has been adopted for immigration and illegal re-entry purposes.[57]

“[T]he term ‘burglary,’ as used in [8 U.S.C.] section 1101(a)(43)(G), has a uniform definition independent of the labels used by state codes . . . -- the unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.”[58]

            The elements of aggravated felony burglary are therefore:

            (1)  a conviction of

            (2)  unlawful or unprivileged

            (3)  entry into, or remaining in,

            (4)  a building or structure

            (5)  with intent to commit a crime

            (6)  with a sentence imposed of one year or more.

If any of these elements is missing from the statute of conviction, or if the record of conviction is unclear whether the defendant was actually convicted of that element, the conviction cannot trigger deportation under this ground.[59]

[53] See § 4.36, supra.

[54] Taylor v. United States, 495 U.S. 575, 598-99, 110 S.Ct. 2143 (1990) (defining “burglary” for purposes of the Armed Career Criminal Act).

[55] The court stated: “Thus, a person imprudent enough to shoplift or steal from an automobile in California would be found . . . to have committed a burglary constituting a ‘violent felony’ for enhancement purposes — yet a person who did so in Michigan might not.  Without a clear indication that . . . Congress intended to abandon its general approach of using uniform categorical definitions to identify predicate offenses, we do not interpret Congress’ omission of a definition of “burglary” in a way that leads to odd results of this kind.”  See Dickerson v. New Banner Institute, Inc. 460 U.S. 103, 119-120, 103 S.Ct. 986 (1983) (absent plain indication to the contrary, federal laws are not to be construed so that their application is dependent on state law, “Because the application of federal legislation is nationwide and at times the federal program would be impaired if state law were to control”); United States v. Turley, 352 U.S. 407, 411, 77 S.Ct. 397 (1957) (“In the absence of plain indication of an intent to incorporate diverse state laws into a federal criminal statute, the meaning of the federal statute should not be dependent on state law”).

[56] Taylor, supra, 495 U.S. at 591, 110 S.Ct. at 2154 (1990).

[57] See, e.g., United States v. Wenner, 351 F.3d 969 (9th Cir. Dec. 12, 2003) (Taylor applies to sentencing as well as immigration context).

[58] Ye v. INS, 214 F.3d 1128, 1132 (9th Cir. 2000) (adopting definition of burglary from Taylor) (emphasis supplied); United States v. Velasco-Medina, 305 F.3d 839, 850 (9th Cir. Aug. 12, 2001).

[59] See § § 4.2-4.7, supra.