Safe Havens

(C)  The Requirement of Unlawful or Unprivileged Entry.  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.”[337]  There is a powerful argument, however, that a conviction of violating California Penal Code § 459 generally cannot constitute the aggravated felony “burglary” for either deportation or illegal re-entry sentence enhancement purposes.  The California statute penalizes simple “entry,” rather than requiring the entry to be unprivileged or unlawful.  Therefore, a conviction of violating this statute does not in and of itself establish a conviction of generic “burglary” for aggravated felony purposes, since it does not establish that the entry was illegal or unprivileged.[338]  If the charging paper, however, charges “unlawful entry,” and the defendant pleads guilty as charged, then the INS can take the position the defendant admitted an unlawful entry, which is sufficient to constitute “burglary” under Taylor.  It is possible to object to this analysis, saying there is no element in California of unlawful or unprivileged entry, so it would have to be a “fact,” and one ignores the facts in doing a categorical analysis.  Moreover, in many cases, there was no “fact” of unlawful entry, as when someone lawfully enters a store as an invitee member of the public.

[337] 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).

[338] United States v. Parker, 5 F.3d 1322, 1325 (9th Cir. 1993) (holding that Information charging burglary did not satisfy Taylor because of failure to allege “unlawful or unprivileged” entry); cf. United States v. Velasco-Medina, 305 F.3d 839, 851 (9th Cir. Aug. 12, 2001); United States v. Franklin, 235 F.3d 1165, 1169 (9th Cir. 2000); United States v. Rodriguez-Rodriguez, 393 F.3d 849 (9th Cir Jan. 5, 2005) (because defendant’s guilty plea to California residential burglary included the word “unlawfully” it satisfied the unlawful entry requirement absent in California’s statutory definition of burglary under Penal Code § 459 and constituted aggravated felony for purposes of triggering upward enhancement for “crime of violence” under Sentencing Guidelines).