(D)  Requirement of a Building or Structure.  The United States Supreme Court has defined “burglary” for this purpose as “the unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.”[339]  A conviction under statutes such as California’s, which includes both structures and non-structures, such as vehicles, in which the record of conviction does not specify whether the defendant entered a structure or a vehicle, is not a burglary offense.

 

            If the record of conviction establishes that the burglary was of a car, the offense is not an aggravated felony as “burglary.”[340]  If the record of conviction does not establish whether the burglary was of a car, a dwelling, or other building, then the offense still has not been established to be an aggravated felony as burglary.[341]  Thus an immigrant who might actually have broken into a dwelling should attempt to keep the record of conviction (charging papers, plea or judgment, sentence) clear of reference to what place was entered, so that the government cannot prove that the burglary offense of which s/he was convicted did not involve a car.[342]

            Board of Immigration Appeals.  The BIA has also held that under controlling Supreme Court authority, auto burglary is not an aggravated felony offense as a “burglary” offense.[5]   

 

Seventh Circuit.  The Seventh Circuit has likewise held that an Illinois conviction for auto burglary does not qualify as a burglary offense for sentencing guidelines purposes because the generic definition requires entry into a dwelling, and entry into a vehicle is not sufficient.[343] 

            Ninth Circuit. The Ninth Circuit held a conviction under a broad Washington statute did not constitute aggravated felony burglary in the federal sentencing context.[344]  This holding may also be persuasive in the immigration context (where “crime of violence” is defined by 18 U.S.C. § 16), because although the sentencing guideline in question has a different definition of crime of violence, the case is more about the federal vs. state definitions of burglary, in light of Taylor.  Since the Washington State residential burglary statute defines dwelling as a “building” and includes fenced areas, cargo containers and railroad cars, which are not included in the Federal definition, the Washington statute should be divisible for aggravated felony purposes as well.

 

            Having established a generic definition of burglary, the court then compared the burglary conviction at issue to the generic definition.  The court found that the offense at issue was broader than and did not match the generic definition of burglary, and therefore could not be used as a prior conviction.  To make this comparison, the court used a categorical analysis, including a review of the record of conviction, rather than examining the defendant’s actual conduct.

 

            A conviction of first-degree burglary under California Penal Code § 460(a) denotes burglary of an inhabited place and so would likely be held to be burglary and a crime of violence.  In contrast, a violation of California Penal Code § 460(b), second-degree burglary, includes burglary of other vehicles and places as well as structures.[8]  That is the safer plea, since it includes burglary of vehicles as well as structures.

            In Ye v. INS, the Ninth Circuit found that burglary of an automobile under Calif. Penal Code § 459 did not constitute “burglary” for purposes of the aggravated felony definition.[345]  The court noted that the Supreme Court had determined that auto burglary does not fit the generic federal definition of burglary, which involves wrongful entry of a structure, not a car.[346] 

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

[348] Ye v. INS, 214 F.3d 1128 (9th Cir. 2000).

[339] See Taylor v. United States, 595 U.S. 575 (1990).

[340] United States v. Velasco-Medina, 305 F.3d 839 (9th Cir. Aug. 12, 2002) (California conviction for second-degree burglary in violation of Penal Code § 459 constituted an aggravated felony under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), for purposes of enhancing the sentence for illegal re-entry under U.S.S.G. § 2L1.2(b)(1)(A), since by pleading guilty to Count One, Velasco-Medina admitted the facts alleged therein).  See United States v. Broce, 488 U.S. 563, 570 (1988) (a plea of guilty is an admission that the defendant “committed the crime charged against him”) (internal quotation omitted); United States v. Harris, 108 F.3d 1107, 1109 (9th Cir. 1997) (“[A] guilty plea conclusively proves the factual allegations contained in the indictment.”)), citing United States v. Mathews, 833 F.2d 161, 164 (9th Cir. 1987).

[341] Matter of Perez, 22 I. & N. Dec. 1325 (BIA 2000) (burglary of a vehicle is not a “burglary offense” under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G)).  The BIA did not consider the issue of whether auto burglary was a crime of violence.

[342] See United States v. Martinez-Garcia, 268 F.3d 460 (7th Cir. 2001); Solorzano-Patlan v. INS, 207 F.3d 869, 872 (7th Cir. 2000).

[343] United States v. Wenner, 351 F.3d 969 (9th Cir. Dec. 12, 2003) (Washington residential burglary, Wash. Rev. Code § 9A.52.025(1), not a “burglary of a dwelling” crime of violence as defined by U.S.S.G. § 4B1.2(a)(2), since state statute classifies railway cars, fenced areas, and cargo containers as dwellings although they are not structures under Taylor v. United States, 495 U.S. 575 (1990); Taylor applies to sentencing as well as immigration context).

[344] Calif. Penal Code § 460 provides: “(a) Every burglary of an inhabited dwelling house, vessel, as defined in the Harbors and Navigation Code, which is inhabited and designed for habitation, floating home, as defined in subdivision (d) of § 18075.55 of the Health and Safety Code, or trailer coach, as defined by the Vehicle Code, or the inhabited portion of any other building, is burglary of the first degree.  (b) All other kinds of burglary are of the second degree. c) This section shall not be construed to supersede or affect § 464 of the Penal Code.”

[345] Ye v. INS, 214 F.3d 1128 (9th Cir. 2000).

[346] Taylor, supra, at 2154. 

AGGRAVATED FELONY " BURGLARY
Descamps v. United States, ___ U.S. ___, ___ (Jun. 20, 2013) (California conviction of burglary, in violation of Penal Code 459 (entry without requiring unlawful entry with intent to commit theft or any felony), is overbroad with respect to the generic federal definition of burglary, for purposes of federal sentence enhancement under the ACCA for a prior burglary conviction, because generic unlawful entry is never an element of 459, a conviction under that statute is never for generic burglary.).

AGGRAVATED FELONY - BURGLARY - DISTINCTION BETWEEN ARMED CAREER CRIMINAL ACT AND ILLEGAL REENTRY SENTENCE ENHANCEMENT
James v. United States, 550 U.S. ___, 127 S.Ct. 1586 (April 18, 2007) (Florida conviction for attempted burglary of a dwelling qualifies as a violent felony for the purposes of the Armed Career Criminal Act, 18 U.S.C 924(2)(B)(ii), under the residual provision in 18 U.S.C. 924(2)(B)(ii), as an offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another.")

Note: James v. United States does not apply to the question whether the statute triggers a 16-level sentence enhancement for illegal reentry after deportation, as a "burglary of a structure" enumerated offense, since USSG 2L1.2 cmt. n.1(B)(iii) does not contain a similar residual provision). United States v. Gomez-Guerra, ___ F.3d ___ (5th Cir. April 23, 2007) (United States Sentencing Guidelines Manual 2L1.2(b)(1)(A)(ii) (2005), as an enumerated offense ("burglary of a dwelling" under USSG 2L1.2 cmt. n.1(B)(iii)), does not include residual clause similar to that construed in James).

AGGRAVATED FELONY - BURGLARY - BURGLARY
United States v. Aguila-Montes, 553 F.3d 1229 (9th Cir. Jan. 20, 2009), on rehearing withdrawing and superseding previous opinion, 523 F.3d 1071 (California conviction for first-degree residential burglary, in violation of Penal Code 459, could not categorically constitute a crime of violence (burglary of a dwelling) under USSG 2L1.2(b)(1)(A), cmt. n. 1(B)(iii), so as to warrant 16-level enhancement of sentence for illegal reentry, because the California offense encompasses a broader range of proscribed conduct than does the generic offense of the Guidelines since it does not require that the entry be "unlawful or unprivileged" as the federal definition does), following United States v. Rodriguez-Rodriguez, 393 F.3d 849, 857 (9th Cir. 2005).

Fifth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " BURGLARY
United States v. Martinez-Garcia, 625 F.3d 196 (5th Cir. Oct. 27, 2010) (Georgia conviction of burglary, in violation of Ga.Code Ann. 16-7-1(a), constituted the Guidelines' enumerated crime of violence of burglary of a dwelling, for purposes of illegal reentry sentencing, because the term dwelling within the Georgia burglary statute comports with the ordinary, common meaning of that term, and does not now -- though it once did -- include structures within the cartilage); distinguishing United States v. Gomez-Guerra, 485 F.3d 301, 303-304 (5th Cir. 2007) (The ordinary, contemporary, common meaning of burglary of a dwelling does not extend to the grounds around the dwelling, and demands an entry into or remaining in the dwelling. . . . If a state burglary statute may be violated by entry only into the curtilage, a conviction under that statute is not a crime of violence. [internal quotes omitted]).

AGGRAVATED FELONY - BURGLARY
United States v. Gonzalez-Terrazas, 529 F.3d 293 (5th Cir. May 22, 2008) (California conviction for burglary, in violation of Penal Code 459, was not a "burglary of a dwelling" for illegal re-entry sentencing purposes because the California statute may be committed without an "unlawful or unprivileged" entry), following United States v. Ortega-Gonzaga, 490 F.3d 393 (5th Cir.2007).

AGGRAVATED FELONY - BURGLARY - UNLAWFUL ENTRY REQUIREMENT
United States v. Gonzales-Terrazas, 516 F.3d 357 (5th Cir. Feb. 1, 2008) (California conviction for violation of Penal Code 459 is not categorically a crime of violence for illegal-reentry sentencing purposes, because the state statute does not require as an element that the entry be unlawful [i.e. without consent]), following United States v. Ortega-Gonzaga, 490 F.3d 393 (5th Cir. 2007) (California conviction under Penal Code 459 for residential burglary does not constitute a crime of violence for purposes of U.S.S.G. 2L1.2(b)(1)(A)).

AGGRAVATED FELONY - BURGLARY
United States v. Herrera-Montes, 490 F.3d 390 (5th Cir. Jun. 25, 2007) (Tennessee conviction of burglary of a dwelling, in violation of Tenn. Code Ann. 39-14-403, is not categorically a "crime of violence" for illegal re-entry sentencing purposes, since the statute of conviction punishes burglary where the intent to commit the crime was not formed until after the actor unlawfully enters or remains in a dwelling).

AGGRAVATED FELONY - BURGLARY - FLORIDA BURGLARY NOT AN AGGRAVATED FELONY
United States v. Gomez-Guerra, 485 F.3d 301 (5th Cir. April 23, 2007) (Florida conviction for burglary, in violation of Florida Statute 810.02(3) (1995), which forbids not only entry into a structure but also entry into its curtilage, where the charge was in accord, including the words "or the curtilage," did not constitute a crime of violence, pursuant to United States Sentencing Guidelines Manual 2L1.2(b)(1)(A)(ii) (2005), as an enumerated offense ( "burglary of a dwelling" under USSG 2L1.2 cmt. n.1(B)(iii)), for purposes of imposing a 16-level enhancement to a sentence for illegal reentry after deportation, since 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), citing United States v. Garcia-Mendez, 420 F.3d 454, 457 (5th Cir.2005) (Texas conviction of burglary of a habitation, in violation of Texas Penal Code 30.02, "is equivalent to the enumerated [crime of violence] offense of burglary of a dwelling"); cf. James v. United States, 550 U.S. ___, 127 S.Ct. 1586, ___ (2007), slip op. at 18 ("We agree that the inclusion of curtilage takes Florida's underlying offense of burglary outside the definition of generic burglary set forth in Taylor, which requires an unlawful entry into, or remaining in, a building or other structure. ") (emphasis in original), citing Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).

BURGLARY - ELEMENTS -- INTENT TO STEAL - TIMING OF
United States v. Jones, 993 F.2d 58, 61-62 (5th Cir.1993) (distinguishing between 18 U.S.C. 2113(a) and (b), where the former requires that an intent to steal exists prior to entry of the bank, while the intent required for (b) may be formed after entry into the bank).

Ninth Circuit

CRIMES OF MORAL TURPITUDE " BURGLARY
Rendon v. Holder, ___ F.3d ___, ___, 2014 WL 4115930 (9th Cir. Aug. 22, 2014) (California conviction of burglary, in violation of Penal Code 459 [entry with intent to commit larceny or any felony], did not constitute a divisible statute, under Descamps; the presence of an or between grand or petit larceny and any felony does not render the statute divisible, because the intended offense, under this statute, is not an element of the offense, but a means of commission, since California law does not require jury unanimity on this point; BIA's use of the modified categorical approach was impermissible); citing People v. Failla, 414 P.2d 39, 44-45 (1966); distinguishing Ngaeth v. Mukasey, 545 F.3d 796, 802 (9th Cir. 2008) (per curiam) (decided prior to Descamps); Hernandez"Cruz v. Holder, 651 F.3d 1094, 1104"05 (9th Cir. 2011) (same). NOTE: The court states: To be clear, it is black-letter law that a statute is divisible only if it contains multiple alternative elements, as opposed to multiple alternative means. Id. at 2285. Thus, when a court encounters a statute that is written in the disjunctive (that is, with an or), that fact alone cannot end the divisibility inquiry. Only when state law requires that in order to convict the defendant the jury must unanimously agree that he committed a particular substantive offense contained within the disjunctively worded statute are we able to conclude that the statute contains alternative elements and not alternative means.

AGGRAVATED FELONY " BURGLARY " BURGLARY
United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. Aug. 11, 2011) (en banc) (California conviction of burglary, under Penal Code 459, does not qualify as a generic burglary conviction for illegal re-entry sentencing purposes, even if the defendant pleaded guilty to entering a building unlawfully or a jury found the defendant guilty as charged in an indictment reciting that allegation, since the California definition of unlawful entry includes a licensed or privileged entry into a building with intent to commit a crime, where the generic definition of burglary requires that the entry itself be unlicensed or unprivileged).

AGGRAVATED FELONY - BURGLARY OF A DWELLING - GUIDELINES DEFINITION
United States v. Aguila-Montes, 553 F.3d 1229 (9th Cir. Jan. 20, 2009), on rehearing withdrawing and superseding previous opinion, 523 F.3d 1071 ("burglary of a dwelling under the Guidelines takes on its generic, contemporary meaning, and includes the following elements: the " unlawful or unprivileged entry into, or remaining in, a building or other structure [that is a dwelling], with intent to commit a crime."), quoting United States v. Rodriguez-Rodriguez, 393 F.3d 849, 852 (9th Cir. 2005).

AGGRAVATED FELONY - BURGLARY
United States v. Grisel, 488 F.3d 844 (9th Cir. Jun. 5, 2007) (en banc) (Oregon conviction of second-degree burglary, in violation of Or.Rev.Stat. 164.215(1), is not a categorical burglary for purposes of the Armed Career Criminal Act, 18 U.S.C. 924(e)(1), to apply a sentence enhancement requiring a minimum of 180 months in prison, because it encompasses burglary of non-buildings, and therefore falls outside the federal definition of generic burglary), overruling United States v. Cunningham, 911 F.2d 361 (9th Cir. 1990) (Oregon conviction of second-degree burglary is a categorical burglary under Taylor v. United States, 495 U.S. 575 (1990), for purposes of applying the Armed Career Criminal Act).

AGGRAVATED FELONY - BURGLARY - CRIME OF VIOLENCE
United States v. Guerrero-Velasquez, ___ F.3d ___ (9th Cir. Jan. 19, 2006) (Washington conviction of second-degree burglary, under Wash. Rev. Code 9A.52.030(1) ["A person is guilty of burglary in the second degree if, with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a building other than a vehicle or a dwelling."], held to constitute crime of violence for purposes of imposing a 16-level increase in base offense level under U.S.S.G. 2L1.2(b)(1)(A)(ii) (2003) for illegal reentry sentence, where signed plea agreement admitted fact charged in information that defendant illegally entered a residence).
http://caselaw.lp.findlaw.com/data2/circs/9th/0530066p.pdf

AGGRAVATED FELONY - BURGLARY - BURGLARY
United States v. Bonat, 106 F.3d 1472, 1475 (9th Cir. 1997) (although language of Arizona burglary statute met generic definition of burglary for federal career criminal act sentence enhancement purposes, Arizona judicial decisions had expanded the definition to include a conviction in which the intent to commit the crime had been formed after entry of the structure, so the Arizona offense could be committed by shoplifting in a building, which does not satisfy the Taylor generic definition of burglary offense).

Tenth Circuit

AGGRAVATED FELONY - BURGLARY - INCLUDES BUILDINGS AND OTHER STRUCTURES
United States v. Rivera-Oros, 590 F.3d 1123 (10th Cir. Dec. 29, 2009) (federal generic definition of burglary includes structures other than buildings, such as boats and tents); citing Taylor v. United States, 495 U.S. 575, 598 (May 29, 1990) (burglary includes "building or other structure"); United States v. Cummings, 531 F.3d 1232, 1235 (10th Cir.2008) (generic burglary can include structures other than buildings; court declined the invitation to find the phrase or other structure superfluous); United States v. Grisel, 488 F.3d 844, 848 (9th Cir. June 5, 2007) ("the substitution of the term building or structure for the term building .... was one of form, not substance.").

AGGRAVATED FELONY - CRIME OF VIOLENCE - BURGLARY - "DWELLING"
United States v. Rivera-Oros, 590 F.3d 1123 (10th Cir. Dec. 29, 2009) (burglary of a "dwelling" includes any "enclosed space that is used or intended for use as a human habitation," including mobile homes, house boats, camp structures, and hotel rooms).

AGGRAVATED FELONY - CRIME OF VIOLENCE - BURGLARY - TAYLOR DOES NOT CONTROL SENTENCING CASES USING PHRASE "BURGLARY OF A DWELLING"
United States v. Rivera-Oros, 590 F.3d 1123 (10th Cir. Dec. 29, 2009) (Taylor definition of "burglary" does not control decision of meaning of "burglary of a dwelling," which is enumerated in the list of crimes considered to be crimes of violence for illegal re-entry sentencing purposes), following United States v. Murillo-Lopez, 444 F.3d 337 (5th Cir. 2006), disagreeing with United States v. Wenner, 351 F.3d 969 (9th Cir. 2003) (applying Taylor definition of burglary to illegal re-entry sentencing case).