Safe Havens

 

(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.