(D)  Requirement of a Building or Structure.  The generic burglary definition requires that the burglary be of a “a building or structure.”[362]  Therefore, where the statute of conviction allows conviction for burglary of an automobile, or any other non-structure, the conviction cannot be an aggravated felony burglary offense.[2]

 

For example, California Penal Code § 459 includes burglary of a “tent, vessel, . . . floating home, . . . railroad car, locked or sealed cargo container, . . . vehicle, . . . or mine . . . .”  If the record of conviction establishes that the burglary was of a car, the offense is not aggravated felony “burglary.”[363]  If the record of conviction does not establish whether the burglary was of a car, a dwelling, or other building, then the government cannot establish that the conviction is aggravated felony burglary.  Thus a noncitizen 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.[364]

[365] 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).

[362] United States v. Martinez-Garcia, 268 F.3d 460 (7th Cir. 2001); 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.

[363] See, e.g., United States v. Wenner, 351 F.3d 969 (9th Cir. Dec. 12, 2003) (Washington conviction of 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); United States v. Martinez-Garcia, 268 F.3d 460 (7th Cir. 2001); Solorzano-Patlan v. INS, 207 F.3d 869, 872 (7th Cir. 2000); Ye v. INS, 214 F.3d 1128 (9th Cir. 2000); 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)).

[364] See § § 16.15-16.34, supra.

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.).

BIA

AGGRAVATED FELONY " BURGLARY " HOME INVASION
Matter of Jasso Arangure, 27 I&N Dec. 178 (BIA 2017) (Michigan conviction of home invasion, in violation of M.C.L. 750.110a(2) is a categorical burglary offense for immigration purposes, since the intent to commit the crime need not be at entry, but may also be while remaining or upon exiting, under both the Michigan and generic federal definitions of burglary), following United States v. Quarles, 850 F.3d 836, 840 (6th Cir. 2017).

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).

Fourth Circuit

AGGRAVATED FELONY " BURGLARY
United States v. Bonilla, 687 F.3d 188 (4th Cir. Jul. 17, 2012) (Texas conviction for burglary, in violation of Texas Penal Code 30.02(a)(3), constitutes a crime of violence for illegal reentry sentencing purposes, because it substantially corresponds to the elements of generic burglary as outlined in Taylor v. United States, notwithstanding that defendant may not have formulated his intent prior to the unlawful entry).

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 - CRIME OF VIOLENCE - BURGLARY
United States v. Davis, 487 F.3d 282 (5th Cir. May 17, 2007) (Texas robbery conviction, in violation of Penal Code 29.02(a), is a crime of violence for purposes of the Armed Career Criminal Act).

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 " CRIME OF VIOLENCE " BURGLARY
United States v. Ramos-Medina, 682 F.3d 852, 857 (9th Cir. Jun. 21, 2012) (California conviction of burglary, under Penal Code 459, constituted a crime of violence under immigration laws, based on United States v. Becker, 919 F.2d 568 (9th Cir.1990), finding Penal Code 459 a crime of violence under 18 U.S.C. 16(b), and Lopez"Cardona v. Holder, 662 F.3d 1110 (9th Cir. 2011), which establish that burglary under California Penal Code 459 is categorically a crime of violence and thus an aggravated felony for the purposes of the INA: "[e]very violation of 459 might not present that level of risk: but the proper inquiry for the categorical approach is whether the conduct covered by the crime presents the requisite risk of injury in the ordinary case. ).

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 " BURGLARY
United States v. Snyder, 643 F.3d 694 (9th Cir. Jun. 30, 2011) (Oregon conviction for violation of ORS 164.215, second degree burglary, is a burglary offense for purposes of the Armed Career Criminal Act; although Oregon definition of building may not coincide with the generic definition, the charging document made clear that the defendant entered a generically defined building).

AGGRAVATED FELONY " CRIME OF VIOLENCE " BURGLARY OF A DWELLING
Reina-Rodriguez v. United States, 645 F.3d 1129, 2011 WL 2465462 (9th Cir. Jun. 22, 2011) (Utah conviction of burglary of a dwelling, under UCA 76"6"202(2), did not constitute a crime of violence for illegal re-entry sentencing purposes, because a non-building adapted for accommodation"e.g., a vehicle or boat" does not categorically qualify as a dwelling under the Guidelines); retroactively applying United States v. Grisel, 488 F.3d 844, 851 n.5 (9th Cir.2007) (en banc) (overruling prior decisions to the extent that [they] suggest[ed] that state statutes satisfy [Taylor 's] categorical inquiry when they define burglary to include non-buildings adapted for overnight accommodation ....).

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).

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).

Other

AGGRAVATED FELONY " CRIME OF VIOLENCE " BURGLARY " PRACTICE ADVISORY
The Supreme Court commented, in dictum, that a residential burglary conviction, with a one-year sentence imposed, would qualify as an aggravated felony crime of violence under 18 U.S.C. 16(b). It stated: The classic example is burglary. A burglary would be covered under 16(b) not because the offense can be committed in a generally reckless way or because someone may be injured, but because burglary, by its nature, involves a substantial risk that the burglar will use force against a victim in completing the crime. Leocal v. Ashcroft, 543 U.S. 1, 10 (2004). This statement, however, was not necessary to the decision, and the court offered no evidence or authority in support. The court followed this up with the decision in James v. United States, 550 U.S. 192 (2007), in which it held that attempted burglary constituted a crime of violence for purposes of enhancing a federal sentence based on a violent prior conviction. Examination of the statistical facts, however, contradictions the courts assumption in these cases. A study funded by the National Institute of Justice found that burglary and attempted burglary rarely involve violence. Is Burglary A Crime Of Violence? An Analysis of National Data 1998-2007, see https://www.ncjrs.gov/pdffiles1/nij/grants/248651.pdf. Here is the abstract: Traditionally considered an offense committed against the property of another, burglary is nevertheless often regarded as a violent crime. For purposes of statistical description, both the Uniform Crime Reports (UCR) and the National Crime Victimization Survey (NCVS) list it as a property crime. But burglary is prosecuted as a violent crime under the federal Armed Career Criminal Act, is sentenced in accord with violent crimes under the United States Sentencing Guidelines, and is regarded as violent in state law depending on varied circumstances. The United States Supreme Court has treated burglary as either violent or non-violent in different cases. This study explored the circumstances of crimes of burglary and matched them to state and federal laws. Analyzing UCR, NCVS, and the National Incident Based Reporting System (NIBRS) data collections for the ten year period 1998-2007, it became clear that the majority of burglaries do not involve physical violence and scarcely even present the possibility of physical violence. Overall, the incidence of actual violence or threats of violence during burglary ranged from a low of .9% in rural areas based upon NIBRS data, to a high of 7.6% in highly urban areas based upon NCVS data. At most, 2.7% involved actual acts of violence. A comprehensive content analysis of the provisions of state burglary and habitual offender statutes showed that burglary is often treated as a violent crime instead of prosecuting and punishing it as a property crime while separately charging and punishing for any violent acts that occasionally co-occur with it. Legislative reform of current statutes that do not comport with empirical descriptions of the characteristics of burglaries is contemplated, primarily by requiring at the minimum that the burglary involved an occupied building if it is to be regarded as a serious crime, and preferably requiring that an actual act of violence or threatened violence occurred in order for a burglary to be prosecuted as a violent crime. Thanks to Raymond Bourluchi.