FILED

United States Court of Appeals

Tenth Circuit

December 29, 2009

PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
__________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

No. 08-2035
RODRIGO RIVERA-OROS,
Defendant-Appellant.

__________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CR-07-00057-JCH)
__________________________________
Scott M. Davidson, Albuquerque, New Mexico, for Defendant-Appellant.
David N. Williams, Assistant United States Attorney (Gregory J. Fouratt, United
States Attorney, with him on the brief), Albuquerque, New Mexico, for PlaintiffAppellee.
__________________________________
Before OBRIEN, TYMKOVICH, and HOLMES, Circuit Judges.
__________________________________
HOLMES, Circuit Judge.
__________________________________
Defendant-Appellant Rodrigo Rivera-Oros pleaded guilty to one count of
reentering the United States after having been previously deported following a

felony conviction, in violation of 8 U.S.C. 1326(a), (b). The district court

calculated a modified advisory Guidelines rangeincluding a criminal history
downward departureyielding a range of forty-six to fifty-seven months
imprisonment. It sentenced Mr. Rivera-Oros to forty-six months imprisonment.
Mr. Rivera-Oros challenges the courts calculation of the Guidelines range,
arguing that the district court incorrectly applied a sixteen-level enhancement to
his offense level for having previously committed a crime of violence. We
exercise jurisdiction pursuant to 28 U.S.C. 1291 and 18 U.S.C. 3742(a).
Finding no error, we affirm.
I. BACKGROUND
Mr. Rivera-Oros is a Mexican citizen who has lived in the United States for
almost his entire life. In 2005, he was arrested and convicted in the Superior
Court of Maricopa County, Arizona, of felony burglary in the second degree,
which carries a maximum term of three and a half years imprisonment. 1 Mr.
Rivera-Oros was sentenced to six months imprisonment, followed by three years
probation. After serving his sentence, Mr. Rivera-Oros was released to federal
immigration officers and was deported.
On October 6, 2006, Mr. Rivera-Oros was arrested by the United States

Mr. Rivera-Oros had unlawfully and without permission entered the

home of his alleged girlfriends mother and was found by the police on the
premises. The mother reported to law enforcement that jewelry was missing from
the home.
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Border Patrol near Hachita, New Mexico, while in the process of crossing the
border into the United States. He admitted that he had entered the country
illegally. Mr. Rivera-Oros was indicted in the District of New Mexico on one
count of illegally reentering the United States after having been previously
deported, in violation of 8 U.S.C. 1326(a), (b). He pleaded guilty without a
plea agreement. According to the presentence investigation report (PSR), Mr.
Rivera-Oross total offense level was 21, which included a sixteen-level
enhancement for having previously committed a crime of violence, namely his
2005 burglary conviction. See United States Sentencing Guidelines Manual
(U.S.S.G.) 2L1.2(b)(1)(A) (2007). Mr. Rivera-Oros had a criminal history
score of 8, which placed him in criminal history category IV. However,
concerned that his criminal history score might over-represent his future
dangerousness and his risk of recidivism, the PSR suggested that Mr. Rivera-Oros
was more similarly situated to defendants with a criminal history category of III.
Mr. Rivera-Oros filed a sentencing memorandum objecting to the PSR. R.,
Vol. I, Doc. 52 (Sentencing Mem., filed Jan. 15, 2008). However, he did not
challenge the calculation of the Guidelines range. Instead, he argued that a
below-Guidelines sentence was sufficient, but not greater than necessary. Id.
at 3-4 (quoting 18 U.S.C. 3553(a)).
The district court agreed that Mr. Rivera-Oross criminal history score
over-represented the seriousness of his criminal history. Therefore, pursuant to
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U.S.S.G. 4A1.3(b)(1), the court departed downward, assigning Mr. Rivera-Oros

to criminal history category III. Based on a criminal history category III and an
offense level of 21, the modified advisory Guidelines range was forty-six to fiftyseven months imprisonment. The court denied Mr. Rivera-Oross requests for a
variance or further departure and sentenced him to forty-six months
imprisonment, the bottom of the modified advisory Guidelines range.
This appeal followed. The only issue is whether Mr. Rivera-Oross prior
burglary conviction is a crime of violence supporting a sixteen-level increase to
his offense level.
II. DISCUSSION
A.

Standard of Review
Whether a prior offense is a crime of violence under U.S.S.G. 2L1.2(b)

is a question of law that we generally review de novo. United States v.

Maldonado-Lopez, 517 F.3d 1207, 1208 (10th Cir. 2008); see also United States
v. Juarez-Galvan, 572 F.3d 1156, 1158 (10th Cir.), cert. denied __ S. Ct. __, 2009
WL 3415133 (2009). But when a defendant fails to object to the district courts
application of a Guidelines enhancement, we review only for plain error. United
States v. Romero, 491 F.3d 1173, 1176-77 (10th Cir. 2007); see also United States
v. Garcia-Caraveo, 586 F.3d 1230, 1232 (10th Cir. 2009); Juarez-Galvan, 572
F.3d at 1158. Mr. Rivera-Oros concedes that he did not object to the district
courts application of the sixteen-level enhancement for having committed a
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crime of violence. Therefore, plain error review applies. To prevail under the
plain error standard, the appellant must prove that the district court (1) committed
an error, (2) that was clear or obvious under current law, and which (3) affects
the appellants substantial rights. United States v. Goode, 483 F.3d 676, 681
(10th Cir. 2007) (internal quotation marks omitted); see United States v. Olano,
507 U.S. 725, 733-37 (1993). If these requirements are met, this Court may
exercise discretion to correct the error if it seriously affects the fairness, integrity,
or public reputation of judicial proceedings. Goode, 483 F.3d at 681 (internal
quotation marks omitted); see Juarez-Galvan, 572 F.3d at 1158-59. However, we
conclude that the district court did not commit any error, plain or otherwise, and
consequently, we affirm.
B.

Crime of Violence Framework

The Guidelines impose a sixteen-level enhancement if an alien was

deported, or unlawfully remained in the United States, after . . . a conviction for a

felony that is . . . a crime of violence. U.S.S.G. 2L1.2(b)(1). A crime of
violence is defined as:
murder, manslaughter, kidnapping, aggravated assault, forcible
sex offenses, statutory rape, sexual abuse of a minor, robbery,
arson, extortion, extortionate extension of credit, burglary of a
dwelling, or any offense under federal, state, or local law that
has as an element the use, attempted use, or threatened use of
physical force against the person of another.

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U.S.S.G. 2L1.2, cmt. n.1(B)(iii) (2007) (emphasis added). 2 This definition is

disjunctive. A felony conviction qualifies as a crime of violence if either (1) the
defendant was convicted of one of the twelve enumerated offenses; or (2) the use,
attempted use, or threatened use of physical force was an element of the offense.
United States v. Zuniga-Soto, 527 F.3d 1110, 1115 (10th Cir. 2008); see JuarezGalvan, 572 F.3d at 1159 ([W]e have explained that there are two ways that a
felony conviction could constitute a crime of violence. (footnote omitted)). The
only issue before us is whether Mr. Rivera-Oros was convicted of the enumerated
offense of burglary of a dwelling. The government does not claim, nor is there
any reason to believe, that the use of force was an element of his 2005 burglary
conviction.
The definition and scope of the enumerated offenses are questions of
federal law. The label that a state attaches to a crime under its laws does not
determine whether it is a Guidelines enumerated offense. United States v. ServinAcosta, 534 F.3d 1362, 1366 (10th Cir. 2008) ([W]e have rejected the notion that
whether a state conviction was for an enumerated but undefined crime depends
upon how the crime is characterized under state law. (quoting United States v.
Vasquez-Flores, 265 F.3d 1122, 1124 (10th Cir. 2001)); see Juarez-Galvan, 572

The Probation Office used the 2007 edition of the U.S.S.G. in

preparing the PSR. The parties have not contested the applicability of that edition
on appeal. Accordingly, in conducting our analysis, we also use the 2007 edition.
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F.3d at 1159 (noting that Californias designation of the offenses at issue is

not dispositive).
Instead, the enumerated offenses of 2L1.2 are defined by their generic,
contemporary meaning. Taylor v. United States, 495 U.S. 575, 598 (1990); see
also Juarez-Galvan, 572 F.3d at 1159 ([W]e must consider the uniform generic
definition of the enumerated offense, and then determine whether the state
statute corresponds to that generic definition.). We look to a wide range of
sources to determine the generic meaning of an enumerated offense, including
federal and state statutes, the Model Penal Code, dictionaries, and treatises.
Taylor, 495 U.S. at 598; see Garcia-Caraveo, 586 F.3d at 1233 (noting that we
employ the analytical framework set out in Taylor, looking to state statutes as
well as prominent secondary sources, such as criminal law treatises and the Model
Penal Code); accord United States v. Torres-Diaz, 438 F.3d 529, 536 (5th Cir.
2006) (noting that as a source of generic contemporary meaning, we turn to the
Model Penal Code and to Professors LaFave and Scotts treatise, Substantive
Criminal Law). To determine whether a previous conviction satisfies the generic
meaning of the offense, ordinarily we apply a formal categorical approach,
looking only to the statutory definitions of the prior offenses, and not to the
particular facts underlying those convictions. Taylor, 495 U.S. at 600.
The government argues that the district court correctly applied the sixteenlevel enhancement. It notes that, in Taylor, the Supreme Court defined generic
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burglary as any crime, regardless of its exact definition or label, having the basic
elements of unlawful or unprivileged entry into, or remaining in, a building or
structure, with intent to commit a crime. Id. at 599. Mr. Rivera-Oros was
convicted of second-degree burglary, which, under Arizona law, is defined as
entering or remaining unlawfully in or on a residential structure with the intent
to commit any theft or any felony therein. Ariz. Rev. Stat. Ann. 13-1507(A).
The government argues that the Arizona statute is essentially a linguistic
duplicate of the Taylor language. Aplee. Br. at 9. 3

In the alternative, the government suggests that we have previously

held that Arizonas second-degree burglary statute is a crime of violence. Aplee.
Br. at 7-8 (citing United States v. Cornelio-Pena, 435 F.3d 1279 (10th Cir.
2006)). However, the governments reliance on Cornelio-Pena is misplaced. Mr.
Cornelia-Pena had been deported after being convicted in Arizona of solicitation
to commit burglary in the second degree. Cornelio-Pena, 435 F.3d at 1281-82.
When he was later found in the United States, Mr. Cornelia-Pena pleaded guilty
to illegal reentry, but he challenged the application of the sixteen-level crime of
violence enhancement. Id. He argued that even if burglary of a dwelling is a
crime of violence, solicitation to commit burglary of a dwelling is not. Id. at
1282-83.
According to the Guidelines, a crime of violence include[s] the offenses of
aiding and abetting, conspiring, and attempting, to commit such offenses.
U.S.S.G. 2L1.2 cmt. n.5. We concluded, based on the Guidelines use of the
word include, that offenses similar to aiding and abetting, conspiring, and
attempting to commit offenses that otherwise meet the definition of crime of
violence are included in 2L1.2(b)(1)(A)(ii). Cornelio-Pena, 435 F.3d at 1284.
We found that solicitation is sufficiently similar to aiding and abetting. Id. at
1288. Therefore, solicitation to commit a crime of violence is also a crime of
violence. Because the parties in that case did not dispute whether the substantive
offense of Arizonas statute fell within the generic definition of the 2L1.2
enumerated offense (i.e., burglary of a dwelling), we simply assumed, but did not
(continued...)
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Mr. Rivera-Oros claims that the Arizona statute is significantly broader

than generic burglary. Both Taylor and the Arizona statute define burglary to
require breaking and entering a structure. However, Mr. Rivera-Oros claims
that Arizona defines structure in a way that is incompatible with Taylor. In
Taylor, the Supreme Court explained that several states had adopted burglary
statutes that were broader than the generic definition because they includ[e]
places, such as automobiles and vending machines, other than buildings. Taylor,
495 U.S. at 599 (citing, as an example, a Missouri statute that included breaking
and entering any booth or tent, or any boat or vessel, or railroad car (internal
quotation marks omitted)). Mr. Rivera-Oros suggests that, under Taylor, a
building or structure must be both permanent and immovable. Aplt. Br. at 1012; see also United States v. Grisel, 488 F.3d 844, 848 & n.2 (9th Cir. 2007) (In
using the term building or structure, the Court encapsulated the common
understanding of the word buildinga structure designed for occupancy that is
intended for use in one place.). 4 By contrast, Arizona defines a residential
3

(...continued)
decide, that issue. Id. at 1282 (It is uncontested that burglary of a dwelling is a
crime of violence under U.S.S.G. 2L1.2(b)(1)(A)(ii). (emphasis added)).
Therefore, nothing in Cornelio-Pena dictates the outcome in this case.
4

While Taylor clearly limits the places that can be burglarized, we

have not gone as far as the Ninth Circuit. Generic burglary can include structures
other than buildings. United States v. Cummings, 531 F.3d 1232, 1235 (10th Cir.
2008). In Taylor, the Supreme Court used the phrase building or other
structure. 495 U.S. at 598. In Cummings, we decline[d the] invitation to find
(continued...)
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structure as any structure, movable or immovable, permanent or temporary, that

is adapted for both human residence and lodging whether occupied or not. Ariz.
Rev. Stat. Ann. 13-1501(11) (emphasis added). Mr. Rivera-Oros claims that
this definition includes boats and tents, both of which Taylor expressly excludes.
C.

Generic Burglary of a Dwelling

Both the government and Mr. Rivera-Oros uncritically assume that Taylors

definition of generic burglary applies to this case. We conclude that this

particular definition (as opposed to Taylors general analytic approach) is not
controlling here. In Taylor, the Supreme Court was interpreting the threestrikes provision of the Armed Career Criminal Act (ACCA), 18 U.S.C.
924(e), which includes burglary in its enumerated list of violent felonies. 18
U.S.C. 924(e)(2)(B)(ii). Here, we must interpret the Sentencing Guidelines,
where the enumerated felony is the more specific burglary of a dwelling, not
burglary. 5 Although we have consistently applied Taylors methodology to the
4

(...continued)
the phrase or other structure superfluous. 531 F.3d at 1235. Therefore, we
disagree with the Ninth Circuits suggestion that the substitution of the term
building or structure for the term building . . . . was one of form, not
substance. Grisel, 488 F.3d at 848.
5

There are numerous other differences between the two provisions.

Although both 18 U.S.C. 924(e) and U.S.S.G. 2L1.2(b) involve sentencing
enhancements for defendants who have previously been convicted of a crime of
violence, they define a crime of violence quite differently. First,
924(e)(2)(B)(ii) lists only four enumerated offensesburglary, arson, extortion,
and crimes involving the use of explosivescompared to the twelve enumerated
(continued...)
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Sentencing Guidelines, see, e.g., United States v. Perez-Vargas, 414 F.3d 1282,
1284 (10th Cir. 2005), Taylor does not claim to provide a generic definition of
burglary of a dwelling. Our analysis must be attuned to the particular statute or
guideline in question. Cf. Nijhawan v. Holder, 129 S. Ct. 2294, 2300 (2009)
(holding that Taylors categorical approach does not apply to an immigration
statutes provision establishing that an alien may be deported if convicted of an
aggravated felony, including an offense defined as one involving fraud or
deceit, despite the similarities to 18 U.S.C. 924(e)).

(...continued)
offenses in 2L1.2(b). Second, while 924(e) has fewer enumerated offenses,
when one includes the non-enumerated offenses conceivably covered by the
statute, 924(e)s definition is much broader. Specifically, both provisions
include felonies that have the use of force as an element of the offense. See
U.S.S.G. 2L1.2 cmt. n.1(B)(iii); 18 U.S.C. 924(e)(2)(B)(i). However, 924(e)
also includes crimes that otherwise involve[] conduct that presents a serious
potential risk of physical injury to another. 18 U.S.C. 924(e)(2)(B)(ii). By
contrast, such a crime is only an aggravated felony under the Guidelines,
subject to an eight-level, not a sixteen-level, enhancement. See U.S.S.G.
2L1.2(b)(1)(C); id. cmt. n.3(A).
The provisions also differ in their application and effect. The Guidelines
enhancement applies to any alien who has been convicted of even a single crime
of violence. Section 924(e) requires three prior convictions. And while the
sixteen-level crime-of-violence enhancement is one of the largest in the
Guidelines, its expected effect in increasing the length of a sentence is hardly
comparable to the fifteen-year mandatory minimum sentence specified in
924(e). (For example, regarding an alien with a criminal history category III,
the base offense level of eight would result in a Guidelines range of six to twelve
months. With the sixteen-level crime-of-violence enhancement, the recommended
Guidelines range becomes sixty-three to seventy-eight months, assuming that no
other adjustments apply.)
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Our case law does not establish the meaning of burglary of a dwelling as
used in 2L1.2. Nevertheless, several of our cases have dealt with the career
offender guideline, U.S.S.G. 4B1.2(a), which also defines crime of violence
to include burglary of a dwelling. In United States v. Smith, 10 F.3d 724 (10th
Cir. 1993), we found that the Sentencing Commissions decision to include
burglary of a dwelling, but to exclude other forms of burglary from 4B1.2
represented an explicit policy choiceone that was diametrically opposed to the
position taken by Congress in enacting the ACCA. Id. at 732. Congress
thought ordinary burglaries, as well as burglaries involving some element making
them especially dangerous, presented a sufficiently serious potential risk to
count toward enhancement [under the ACCA]. Taylor, 495 U.S. at 597
(emphasis added). However, [t]he Sentencing Commission has obviously
declined to adopt that view, Smith, 10 F.3d at 733, opting for a more narrowly
focused approach centered on the severity of the burglary. Id. at 732 ([T]he
Commission has made it clear that it does not view second-degree or
unaggravated burglaries of structures other than dwellings as crimes of
violence.). We also noted that the definition of crime of violence in 4B1.2 is
patterned after 924(e)(2)(B) with one significant difference. The
Commissions definition conspicuously omitted burglary, with the single
exception of burglary of a dwelling. Id. at 733 (citation omitted).
Ultimately, our task in interpreting the Guidelines is to determine the intent
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of the Sentencing Commission. United States v. OFlanagan, 339 F.3d 1229,

1235 (10th Cir. 2003) (We must interpret and apply the sentencing guidelines in
a manner consistent with the Sentencing Commissions intent.). At least with
respect to burglary, the Commission has reached a different conclusion than
Congress did in enacting the ACCA. Therefore, since the Supreme Courts
decision in Taylor was based on the ACCAs language and purpose, we conclude
that Taylors definition of generic burglary does not dictate the result in this case.
We agree with the Fifth Circuit that Taylors definition of generic burglary,
although instructive, does not strictly apply to the specific offense burglary of a
dwelling as used in the Guidelines. United States v. Murillo-Lopez, 444 F.3d
337, 344-45 (5th Cir. 2006).
Even looking to our cases interpreting 4B1.2, our precedents do not
answer the specific question before uswhether a dwelling must be a
permanent, immovable structure. In United States v. Bennett, 108 F.3d 1315
(10th Cir. 1997), we found that Oklahomas first-degree burglary statute, which
requires break[ing] into and enter[ing] the dwelling house of another, in which
there is at the time some human being was burglary of a dwelling and,
therefore, a crime of violence. Id. at 1317 (quoting Okla. Stat. tit. 21, 1431).
At the same time, we found that the States second-degree burglary statute, which
applies to any structure or erection, in which any property is kept, was
obviously overbroad because it is not limited to dwellings. Id. (quoting Okla.
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Stat. tit. 21, 1435). Similarly, in United States v. Forsythe, 437 F.3d 960 (10th
Cir. 2005), we held that a New Jersey burglary statute that applies to any place
adapted for overnight accommodation of persons, or for carrying on business
therein is not burglary of a dwelling under 4B1.2. Id. at 963 (emphasis
added) (quoting N.J. Stat. Ann. 2C:18-2).
In determining the generic, contemporary meaning of burglary of a
dwelling, and how it differs from generic burglary, it is important for us to reflect
upon why the Sentencing Commission considers burglary of a dwelling, in
particular, to be a crime of violence. The invasion of ones home causes
psychological harm that cannot be measured solely in terms of the value of lost
property. Blackstone described burglary, which at common law was limited to
residences, as a very heinous offence, because it is not simply a property crime,
but is, instead, a forcible invasion and disturbance of that right of habitation,
which every individual might acquire even in a state of nature. 6 4 William
Blackstone, Commentaries *223. Moreover, the unique wounds caused by
residential burglary are independent of the size or construction of the dwelling.

In Taylor, the Supreme Court rejected the argument that enumerated

offenses should be presumed to have their common law meaning. 495 U.S. at
592-94. But nothing in Taylor requires us to ignore the societal interests reflected
in the common law, especially when those same concerns are equally applicable
today. See, e.g., Calhoun v. State, 820 P.2d 819, 821-22 (Okla. Crim. App. 1991)
(citing cases from several other states and concluding that burglary is a crime
against habitation).
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They are the same for the mansion house and the boarding house, the tract home
and the mobile home. See Wayne R. LaFave, Substantive Criminal Law 21.1(c)
(2008).
This distinction between burglary and burglary of a dwelling is reflected in
other sections of the Guidelines. The burglary Guideline, U.S.S.G. 2B2.1,
recognizes two different offensesburglary of a residence and burglary of a
structure other than a residence. Burglary of a residence has a base offense level
of 17, while burglary of a structure other than a residence has a base offense level
of 12. U.S.S.G. 2B2.1(a). The Guidelines justify this higher offense level by
the fact that residential burglaries pose an increased risk of physical and
psychological injury. Id. cmt. background; see also United States v. McClenton,
53 F.3d 584, 588 (3d Cir. 1995) ([T]here is a much greater possibility of
confronting the resident and a substantial risk that force will be used and that
someone will be injured, than if one burglarized a building that was not intended
for use as habitation . . . . We find that it is this elementthe potential for
confrontation and the substantial risk of harmthat the Guidelines intended for
enhanced punishment under Section 4B1.2.). Had the Sentencing Commission
intended residential burglary to be a subset of generic burglary, there would be no
reason to have two separate and distinct base offense levels. 7 Instead, the

This section also bolsters our conclusion that the Sentencing

(continued...)
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Commission could have, consistent with its common practice, created a specific
offense characteristic for the unified offense conduct of burglary of a structure
that would provide for a five-level enhancement when the burglary was of a
structure constituting a residence. Cf. U.S.S.G. 2B2.3(b)(1) (providing as a
specific offense characteristic for a two-level enhancement to the base offense
level for trespass when the trespass occurred at certain secure government
facilities and other locations including at a residence).
The special importance of ones home also is reflected in state laws.
Although nearly all states have expanded burglary beyond its common law roots,

(...continued)
Commission did not intend residential burglaries to be limited to structures.
One might argue that 2B2.1, titled Burglary of a Residence or a Structure
Other than a Residence, is ambiguous as to whether or not a residence must be
a structure. We do not believe that the language is ambiguous: although a
residence frequently will be a structure, it need not be. Moreover, any
conceivable ambiguity could be resolved by considering previous versions of the
Guidelines. Prior to 1993, 2B2.1 only applied to burglary of a residence and
made no mention of structures. See U.S.S.G. 2B2.1 (1992). Notably,
burglary of a structure was covered by a different guideline. See U.S.S.G.
2B2.2 (1992). The two sections were merged in 1993. U.S.S.G. app C, amend.
481 (1993). Amendment 481 eliminated twenty-five offense guidelines by
merging similar sections. It was motivated by the practical advantages of such
consolidations: it shortens and simplifies the Guidelines Manual and reduces the
likelihood of inconsistency in phraseology and definitions from section to section;
it will reduce possible confusion and litigation as to which guideline applies to
particular conduct; it will reduce the number of conforming amendments required
whenever similar sections are amended; and it will aid the development of case
law because cases involving similar or identical concepts and definitions can be
referenced under one guideline rather than different guidelines. Id. Nothing in
the amendment, however, suggests that it was intended to change the meaning of
burglary of a residence.
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at least twenty-two states make burglary of a dwelling a more serious offense than
other forms of burglary. LaFave, supra 21.1(c) & n.87. A similar number
permit the use of force, even deadly force, to defend ones home against burglary
or other felonies. Id. 10.6 nn.28-31.
In Taylor, the Supreme Court also looked to the Model Penal Code
(MPC) in trying to discern the generic, contemporary meaning of burglary.
495 U.S. at 598 & n.8. In this case, however, the MPC is not particularly helpful
in deciding whether burglary of a dwelling is limited to permanent structures.
On the one hand, the MPC defines burglary to require entering a building or
occupied structure. MPC 221.1(1). It then increases the grading of the offense
from a felony in the third degree to a felony in the second degree if it is
perpetrated in the dwelling of another at night. Id. 221.1(2). This grading
scheme suggests that burglary of a dwelling is a species of burglary and that any
limitations on generic burglary should also apply to generic burglary of a
dwelling.
On the other hand, the MPC defines structure more broadly than Taylor
does. According to the MPC, occupied structure means any structure, vehicle
or place adapted for overnight accommodation of persons, or for carrying on
business therein, whether or not a person is actually present. Id. 221.0(1).
Therefore, under the MPC, burglary of a vehicle could be a felony in the second
degree if the vehicle, such as a house boat or a mobile home, was adapted for
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overnight accommodations. See, e.g., Commonwealth v. Nixon, 801 A.2d 1241,

1244-46 (Pa. Super. Ct. 2002) (recognizing that under Pennsylvanias burglary
statute, which is nearly identical to the MPC, camp structures and house
trailers may be considered adapted for overnight accommodation).
Furthermore, the MPC recognizes that burglary of a dwelling is a substantially
more serious offense than other forms of burglary, concluding that especially
severe sanctions are appropriate for criminal invasion of premises under
circumstances likely to terrorize occupants. MPC 221.1, explanatory note.
Blacks Law Dictionary provides a similarly expansive definition of a
dwelling-house as including [a] building, a part of a building, a tent, a mobile
home, or another enclosed space that is used or intended for use as a human
habitation. Blacks Law Dictionary 582 (9th ed. 2009). At least two other
circuits have adopted an essentially identical definition of dwelling set out in an
earlier edition of Blacks Law Dictionary for purposes of interpreting 4B1.2.
See McClenton, 53 F.3d at 587; United States v. Graham, 982 F.2d 315, 316 (8th
Cir. 1992) (per curiam). In Graham, the Eighth Circuit relied on this definition to
conclude that burglaries of structures used as shelters for weekend fishing
retreats are crimes of violence. 982 F.2d at 316. In McClenton, the Third
Circuit cited both the dictionary definition and Graham to support its conclusion
that an unoccupied hotel room is a dwelling. 53 F.3d at 587.
We similarly conclude, based on the Sentencing Commissions heightened
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concern for the harms associated with residential burglaries, the unbroken
historical recognition of those harms, and the common understanding of the word
dwelling, that for purposes of the crime of violence enhancement in U.S.S.G.
2L1.2, a burglary of a dwelling is not limited to permanent and immovable
structures or buildings. Rather, a dwelling includes any enclosed space that is
used or intended for use as a human habitation. Blacks Law Dictionary 582.
Our conclusion aligns with that of the Fifth Circuit. In Murillo-Lopez, the
defendant challenged the application of 2L1.2s crime-of-violence enhancement.
444 F.3d at 339, 341. Mr. Murillo-Lopez had pleaded guilty to burglary of an
inhabited dwelling house, in violation of Cal. Penal Code 459. 8 Id. at 339-40.
The district court concluded that his prior conviction was burglary of a dwelling
and that the enhancement, therefore, applied. Id. at 339. Although the Fifth
Circuit vacated his sentence on other grounds, it rejected Mr. Murillo-Lopezs
argument that the California statute was overbroad. It concluded that Taylors
definition of generic burglary was not controllingviz., it did not provide the
dispositive answer concerning the generic meaning of the Guidelines enumerated

The Fifth Circuit has recognized that a conviction under 459 is not,
categorically, a burglary of a dwelling. First, the statute includes burglary of
non-dwellings. Murillo-Lopez, 444 F.3d at 340. Second, one can be convicted
under 459 even if the entry was not unlawful or unprivileged. United States
v. Ortega-Gonzaga, 490 F.3d 393, 395 (5th Cir. 2007). However, neither of these
concerns was at issue in Murillo-Lopez because the court applied the modified
categorical approach, looking not only to the fact of conviction, but also to the
facts alleged in the complaint. 444 F.3d at 339-40.
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offense of burglary of a dwelling. 9 Id. at 342-45. It found that Mr. MurilloLopez had pleaded guilty to burglary of a dwelling, even though California
courts construe the terms building and inhabited dwelling house to include
structures such as tents and vessels used for human habitation [that] do not fall
within the scope of generic burglary as defined by the Supreme Court. Id. at
341, 345 (footnotes omitted); see also United States v. Castillo-Morales, 507 F.3d
873, 875 (5th Cir. 2007) (Under the common-sense approach, a dwelling is any
structure, including a tent or vessel, that is used for human habitation.).
We note that the Ninth Circuit has taken a different approach. In United
States v. Wenner, 351 F.3d 969 (9th Cir. 2003), the defendant was sentenced
under the career offender guideline, U.S.S.G. 4B1.2. The Ninth Circuit
concluded that Washingtons burglary statute, Wash. Rev. Code. 9A.52.025(1),
was overbroad, because it included burglarizing a fenced area that doubles as a
dwelling. Wenner, 351 F.3d at 972-73. It reasoned that the most logical and
sensible reading of the Guidelines and the reading that is consistent with our
cases is to construe burglary of a dwelling as the Taylor definition of burglary,
with the narrowing qualification that the burglary occur in a dwelling. Id. at

In Ortega-Gonzaga, the Fifth Circuit held that Taylors definition of

burglary, aside from the structures in which a burglary can occur, controls the
definition of burglary of a dwelling under the Guidelines. 490 F.3d at 395
(emphasis added). However, the outcome in this case turns solely on the question
of what constitutes a dwelling. We express no opinion as to whether there may
be other differences between generic burglary and generic burglary of a dwelling.
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973. However, in light of the differences in both language and purpose between
the Guidelines and the ACCA, we do not find the Ninth Circuits opinion to be
persuasive. Therefore, we respectfully decline to follow it.
D.

Arizonas Burglary Statute

Having concluded that generic burglary of a dwelling is not limited to

permanent, immovable structures, we must now consider whether the particular

statute at issue, Ariz. Rev. Stat. Ann. 13-1507, at least roughly corresponds to
the generic definition of burglary of a dwelling. See Garcia-Caraveo, 586 F.3d at
1235-37. A state statute does not need to match the generic definition verbatim.
The Guideline enhancement applies so long as the statute corresponds in
substance to the generic meaning. Taylor, 495 U.S. at 599; see also Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 193 (2007) ([T]o find that a state statute creates a
crime outside the generic definition of a listed crime in a federal statute requires
more than the application of legal imagination to a state statutes language. It
requires a realistic probability, not a theoretical possibility, that the State would
apply its statute to conduct that falls outside the generic definition of a crime.
(emphasis added)).
As already mentioned, Arizona defines burglary in the second degree as
entering or remaining unlawfully in or on a residential structure with the intent
to commit any theft or any felony therein. Ariz. Rev. Stat. Ann. 13-1507(A).
A residential structure is any structure, movable or immovable, permanent or
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temporary, that is adapted for both human residence and lodging whether
occupied or not. Id. 13-1501(11). The signature case applying the definition
of residential structure is State v. Gardella, 751 P.2d 1000 (Ariz. Ct. App.
1988), in which the state court of appeals concluded that breaking into the
laundry room of a hotel was not burglary of a residential structure. Id. at 1002.
The court distinguished between buildings that are used exclusively as residences
and those that also have commercial purposes. Id. If the location is a residence,
then the statute applies so long as the particular area entered is one that makes
the building more suitable, comfortable or enjoyable for human occupancy. Id.
If, however, . . . the character of the building is commercial, then further inquiry
must be made to determine the character of the use of the structure actually
entered. Id. Under this analysis, a guest room in a hotel is a residential
structure, but the gift shop in that same hotel is not. Id.; see also State v.
Hussain, 942 P.2d 1168, 1170 (Ariz. Ct. App. 1997) (holding that a motel room
qualifies as a residential structure); State v. Bass, 911 P.2d 549, 550-52 (Ariz. Ct.
App. 1995) (noting that trial court properly instructed jury concerning only
burglary of a non-residential structure, where structure at issue was an almostcompleted log cabin home that lacked a certificate of occupancy, water,
electricity, and doors, and prosecution failed to introduce substantial contrary
evidence that the structure was adapted for both human residence and lodging);
State v. Ekmanis, 901 P.2d 1210, 1211-13 (Ariz. Ct. App. 1995) (holding that a
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storage area under the same roof as the main house, but separated by a walkway,
is a residential structure).
Therefore, as interpreted by the Arizona courts, the term residential
structure in Ariz. Rev. Stat. Ann. 13-1507(A) corresponds in substance to the
generic definition of dwelling reflected in the enumerated offense of 2L1.2
(i.e., burglary of a dwelling). Nor is there a realistic probability that the Arizona
courts would interpret the term residential structure in a manner that would
sever this correspondence in the future. Accordingly, under the parties
arguments and our analysis in this case, we conclude that the district court did not
err in determining that Mr. Rivera-Oross second degree felony burglary
conviction pursuant to the Arizona statute constituted a crime of violence under
2L1.2, warranting a sixteen-level enhancement.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district courts sentencing
order.

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