Aggravated Felonies

(E)  Requirement of Intent to Commit a Crime.  The generic burglary definition requires that the burglary be committed “with intent to commit a crime.”[68]  This is a very broad intent requirement, and it is difficult to imagine a state conviction that does not contain this element.  Where possible, however, the noncitizen should attempt to plead to an entry with intent to commit “any felony” or “grand or petit larceny or any felony,” so that the burglary offense cannot be found to be an aggravated felony attempted theft offense (or CMT).[69]

Even if the charge is phrased in the conjunctive (“theft and any felony”), counsel can argue that a plea to that language should be read disjunctively for purposes of divisible statute analysis, since only one intent or the other is required as an essential element of the offense.[70]

[68] Ye v. INS, 214 F.3d 1128, 1132 (9th Cir. 2000) (emphasis supplied) (adopting definition of burglary from Taylor v. United States, 495 U.S. 575, 598-99, 110 S.Ct. 2143 (1990)); United States v. Velasco-Medina, 305 F.3d 839, 850 (9th Cir. Aug. 12, 2001).

[69] United States v. Velasco-Medina, 305 F.3d 839 (9th Cir. Aug. 12, 2001) (conviction for second-degree burglary constituted an aggravated felony for purposes of enhancing the sentence for illegal re-entry, since by pleading guilty to Count One of the Information, Velasco-Medina admitted the facts alleged therein, which were sufficient to establish the unlawful entry into a structure with intent to commit larceny and any felony necessary to establish aggravated felony burglary); United States v. Williams, 47 F.3d 993, 995 (9th Cir. 1995); United States v. Dunn, 946 F.2d 615, 620 (9th Cir. 1991); United States v. O’Neal, 937 F.2d 1369, 1373-74 (9th Cir. 1991), overruled on other grounds by United States v. Sahakian, 965 F.2d 740 (9th Cir. 1992).  See also United States v. Franklin, 235 F.3d 1165, 1170 (9th Cir. 2000) (noting that document charging that Franklin “did willfully and unlawfully enter . . . with the intent to commit larceny” satisfied Taylor).

[70] See § 4.11, supra.