U.S. v. Murillo-Lopez, 04-41397. Summary Calendar.

• Decision Date: 22 March 2006
• Docket Number: No. 04-41397. Summary Calendar.,04-41397. Summary Calendar.
• Citation: 444 F.3d 337
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gustavo MURILLO-LOPEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

444 F.3d 337

UNITED STATES of America, Plaintiff-Appellee, v. Gustavo MURILLO-LOPEZ, Defendant-Appellant.

No. 04-41397. Summary Calendar.

United States Court of Appeals, Fifth Circuit.

March 22, 2006.

Michelle Palacios, McAllen, TX, James Lee Turner, Asst. U.S. Atty., Houston, TX, for U.S.

Marjorie A. Meyers, Fed. Pub. Def., Brent Evan Newton, Asst. Fed. Pub. Def., Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before JOLLY, DAVIS and OWEN, Circuit Judges.

OWEN, Circuit Judge:

Gustavo Murillo-Lopez pleaded guilty to illegally reentering the United States after having been deported, in violation of 8 U.S.C. § 1326. Murillo-Lopez appeals his sentence, including a sixteen-level "crime of violence" enhancement, on the following grounds: (1) the sentence-enhancement provisions in 8 U.S.C. § 1326(b) are unconstitutional, (2) the district court erroneously sentenced him under the mandatory sentencing guidelines regime found unconstitutional in United States v. Booker,¹ and (3) the district court erroneously concluded that Murillo-Lopez's 2003 burglary conviction under CALIF. PENAL CODE § 459 constitutes "burglary of a dwelling," a specifically enumerated "crime of violence" under section 2L1.2 of the United States Sentencing Guidelines. For the reasons that follow, we vacate Murillo-Lopez's sentence and remand for resentencing in light of Booker.

Murillo-Lopez concedes that his constitutional challenge to 8 U.S.C. § 1326(b) is foreclosed by Almendarez-Torres v. United States² and raises the issue here solely to preserve it for Supreme Court review. But Murillo-Lopez correctly asserts that the district court erred in sentencing him under the then-mandatory sentencing guidelines regime.³ Murillo-Lopez preserved this error in the district court, and the Government has not met its arduous burden of establishing that the error was harmless beyond a reasonable doubt.⁴ Therefore, we vacate Murillo-Lopez's sentence and remand to the district court for resentencing.

In the interest of judicial efficiency and to provide guidance on remand,⁵ we now consider whether Murillo-Lopez's prior burglary conviction is a "crime of violence" under section 2L1.2 of the Guidelines.⁶ The application notes to section 2L1.2 state that an offense is a "crime of violence" if (1) it has the use, attempted use, or threatened use of physical force against the person of another as an element of the offense, or (2) it qualifies as one of several specifically enumerated offenses.⁷ The Government contends only that Murillo-Lopez's burglary conviction constitutes a specifically enumerated offense, namely "burglary of a dwelling"; therefore, we do not consider whether physical force is an element of the offense.

We review the district court's interpretation and application of the Sentencing Guidelines de novo.⁸ In determining whether a prior offense is equivalent to an enumerated offense that is not defined in the Guidelines, like "burglary of a dwelling," we have said that "we must define [the enumerated offense] according to its `generic, contemporary meaning' and should rely on a uniform definition, regardless of the `labels employed by the various States' criminal codes.'"⁹ We have also said that we must apply a "common sense approach" in determining whether a prior conviction constitutes an enumerated offense as that offense "is understood in its `ordinary, contemporary, [and] common' meaning."<sup>10</sup> If the statute of conviction is overly broad, we may also examine certain adjudicative records to determine whether the prior conviction qualifies as an enumerated offense.<sup>11</sup> "These records are generally limited to the `charging document, written plea agreement, transcript of the plea colloquy, and any explicit factual findings by the trial judge to which the defendant assented.'"¹²

The Government concedes that the California burglary statute under which Murillo-Lopez was convicted includes offenses other than those that categorically qualify as "burglary of a dwelling" because the statute encompasses both dwellings and non-dwellings. But the Government contends that the criminal complaint to which Murillo-Lopez pleaded guilty establishes that he was in fact convicted of "burglary of a dwelling." Although neither the judgment of conviction nor the charging document is part of the record, Murillo-Lopez concedes that he pleaded guilty to a criminal complaint charging him with "a violation of [California] Penal Code section 459, a felony, in that on or about June 1, 2003, in the County of Riverside, State of California, he did wilfully and unlawfully enter a certain building, to wit, an inhabited dwelling house, ... with intent to commit theft and a felony."¹³

Section 459 of the California Penal Code provides:

Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this chapter, "inhabited" means currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises.¹⁴

Section 460 of the California Penal Code further provides that:

(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 Section 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.¹⁵

Murillo-Lopez does not dispute that he pleaded guilty to burglary of a "building to wit, an inhabited dwelling house," and he does not argue that the district court improperly considered the criminal complaint in determining whether his burglary conviction constituted a "crime of violence." But he argues that even the crime charged in the criminal complaint is too broad to qualify as "burglary of a dwelling" because California courts construe the terms "building" and "inhabited dwelling house" to include structures such as tents¹⁶ and vessels used for human habitation¹⁷ and such structures do not fall within the scope of "generic burglary" as defined by the Supreme Court in Taylor v. United States.¹⁸

In Taylor,¹⁹ the Supreme Court construed the term "burglary" as used in 18 U.S.C. § 924(e), which is a sentencing enhancement enacted as part of the Career Criminals Amendment Act of 1986. The Supreme Court concluded that the definition of "burglary" should not be derived from the common-law, which limited the offense to "`breaking and entering the dwelling house of another in the nighttime with the intent to commit a felony,'"<sup>20</sup> because "the contemporary understanding of `burglary' has diverged a long way from its common-law roots."²¹ Instead, Congress intended a broader definition of the term. The Court also concluded that application of the enhancement should not depend on whether a crime is specifically denominated "burglary" under state law because of the variations, and overbreadth, in the scope of many state burglary statutes.²² Instead, the Court said, "Congress meant by `burglary' the generic sense in which the term is now used in the criminal codes of most States,"²³ but it "must have some uniform definition independent of the labels employed by the various States' criminal codes."²⁴ The Court thus determined that "the generic, contemporary meaning of burglary contains at least the following elements: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime."²⁵

As examples of state statutes that are overly broad, and thus not categorically subject to a section 924(e) enhancement, the Supreme Court mentioned statutes that include places "other than buildings," such as automobiles, vending machines, booths, tents, boats, vessels, and railroad cars.²⁶ The Court also noted the overbreadth of California's burglary statute, which includes such acts as "shoplifting and theft of goods from a `locked' but unoccupied automobile."²⁷ But the Court said that a conviction under an overly broad statute could nonetheless result in an enhancement if the charging documents and certain other conclusive adjudicative records establish that the defendant was convicted of generic burglary.²⁸

It is from the Supreme Court's discussion of overly broad burglary statutes that Murillo-Lopez derives his argument that "burglary of a dwelling" is but a narrow subset of "burglary" that cannot extend to places or structures excluded from the definition of generic burglary, like the tents and vessels included in the California definition of "inhabited dwelling house." The Government counters that we must give effect to the ordinary meaning of "dwelling" as a place of habitation without limiting the types of structures that can constitute dwellings. Alternatively, the Government contends that use of any structure as a habitation makes it...