United States v. Bonilla

• Citation: 687 F.3d 188
• Decision Date: 17 July 2012
• Docket Number: No. 11–4765.,11–4765.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Francisco BONILLA, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

687 F.3d 188

UNITED STATES of America, Plaintiff–Appellee,

v.Francisco BONILLA, Defendant–Appellant.

No. 11–4765.

United States Court of Appeals,Fourth Circuit.

Argued: May 18, 2012.

Decided: July 17, 2012.

ARGUED:Paresh S. Patel, Office of the Federal Public Defender, Greenbelt, Maryland, for Appellant. Benjamin M. Block, Office of the United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF:James Wyda, Federal Public Defender, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee.

Before TRAXLER, Chief Judge, and GREGORY and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge DIAZ wrote the majority opinion, in which Judge GREGORY joined. Chief Judge TRAXLER wrote a dissenting opinion.

OPINION

DIAZ, Circuit Judge:

After he pleaded guilty to illegal reentry, Francisco Bonilla received an enhanced sentence based on his prior Texas conviction for burglary of a habitation. Bonilla argues that the district court erred in applying the enhancement because his state conviction under Texas Penal Code section 30.02(a)(3)—which provides that “[a] person commits [burglary] if, without the effective consent of the owner, the person ... enters a building or habitation and commits or attempts to commit a felony, theft, or an assault”—does not satisfy the definition of generic burglary under Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). We disagree and affirm the judgment of the district court.

I.

Bonilla pleaded guilty to a one-count indictment charging him with knowingly entering the United States without the consent of the Attorney General of the United States after having been previously excluded, deported, or removed, in violation of 8 U.S.C. § 1326. The presentence report (“PSR”) noted that Bonilla's base offense level of eight should be increased by sixteen levels, “[s]ince [Bonilla] ha[d] previously been convicted of a crime of violence,” pursuant to U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A). J.A. 120. The offense triggering the enhancement was Bonilla's May 8, 1992 conviction in Texas state court for burglary of a habitation.¹

Bonilla objected to the sentencing enhancement, contending that his Texas conviction did not qualify as a crime of violencebecause it did not satisfy the elements of generic burglary required by Taylor. Specifically, Bonilla argued that because he did not have “the requisite intent to commit a crime” “at the time” that he illegally entered the dwelling, he did not commit generic burglary. Id. 65.

The district court rejected Bonilla's argument. Bonilla, the court found, was convicted under section 30.02(a)(3) of the Texas Penal Code, which provides that “[a] person commits [burglary] if, without the effective consent of the owner, the person ... enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.” Looking to the charging document—which specified that Bonilla “knowingly and intentionally enter[ed] a habitation without the effective consent of ... the owner, and therein attempted to commit and committed theft,” J.A. 36—the court noted that “theft or attempted theft would require intent,” id. 77, and that the intent “has to be formed at some point before leaving the habitation, because the charge is within the habitation,” id. 80. Thus, the court concluded that Bonilla's conviction met the elements of generic burglary under Taylor and qualified as a crime of violence under § 2L1.2(b)(1)(a). Applying the sixteen-level sentencing enhancement, the court calculated an advisory Guidelines range of thirty-seven to forty-six months, and sentenced Bonilla to thirty-seven months' imprisonment.² Bonilla timely appealed.

II.

Whether a prior conviction qualifies as a “crime of violence” is a legal question we review de novo. United States v. Jenkins, 631 F.3d 680, 682 (4th Cir.2011). Under U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A), a defendant convicted of illegal reentry is subject to a Guidelines enhancement if prior to his removal or deportation he had been convicted of a “crime of violence.” Application note 1(B)(iii) to § 2L1.2 defines a “crime of violence” as one of several enumerated offenses, including “burglary of a dwelling,” or an offense “that has as an element the use, attempted use, or threatened use of physical force against the person of another.”

A.

In Taylor, the Supreme Court sought to provide “some uniform definition [of burglary] independent of the labels employed by the various States' criminal codes.” 495 U.S. at 592, 110 S.Ct. 2143. Specifically, the Court considered the meaning of “burglary” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). The ACCA provides a sentencing enhancement for a conviction for unlawful possession of a firearm under 18 U.S.C. § 922(g) if the defendant “has three previous convictions ... for a violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1). A “violent felony,” in turn, includes “any crime punishable by imprisonment for a term exceeding one year ... that ... is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. § 924(e)(2)(B)(ii) (emphasis added).³

Taylor's search for a uniform definition of “burglary” stemmed from Congress's deletion of the same in 1986 from the ACCA. In the Armed Career Criminal Act of 1984, “burglary” was defined as “any felony consisting of entering or remaining surreptitiously within a building that is property of another with intent to engage in conduct constituting a Federal or State offense.” Taylor, 495 U.S. at 581, 110 S.Ct. 2143 (internal quotations omitted). Without explanation, Congress in 1986 excised this definition, while retaining burglary as a predicate offense under the ACCA.

Faced with this legislative hole, the Court in Taylor noted that Congress had “singled out burglary (as opposed to other frequently committed property crimes such as larceny and auto theft) for inclusion as a predicate offense ... because of its inherent potential for harm to persons.” Id. at 588, 110 S.Ct. 2143. As the Court explained, “[t]he fact that an offender enters a building to commit a crime often creates the possibility of a violent confrontation between the offender and an occupant, caretaker, or some other person who comes to investigate.” Id. “And the offender's own awareness of this possibility,” the Court added, “may mean that he is prepared to use violence if necessary to carry out his plans or to escape.” Id. Further, because “Congress apparently thought that all burglaries serious enough to be punishable by imprisonment for more than a year ... shared this potential for violence and ... were likely to be committed by career criminals,” Congress did not “limit the predicate offense to some special subclass of burglaries that might be especially dangerous, such as those where the offender is armed, or the building is occupied, or the crime occurs at night.” Id.

Finding it “implausible” that Congress would have left the meaning of “burglary” under § 924(e) to the variances of the states' criminal codes, id. at 590, 110 S.Ct. 2143, the Court concluded that “burglary” “must have some uniform definition” separate from the idiosyncrasies of the state codes, id. at 592, 110 S.Ct. 2143. In its search for uniformity, the Court rejected a definition of burglary tied to the common law, noting that the “contemporary understanding” of burglary was far removed from its common law counterpart. Id. at 593, 110 S.Ct. 2143. That is, although “ ‘[b]urglary was defined by the common law to be the breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony’,” id. at 580 n. 3, 110 S.Ct. 2143 (citation omitted), most states had long since “expanded this definition to include entry without a ‘breaking,’ structures other than dwellings, offenses committed in the daytime, entry with intent to commit a crime other than a felony, etc.,” id. at 593, 110 S.Ct. 2143.

Next, the Court rejected a definition that required “intent to engage in conduct constituting a Federal or State offense that has as an element ... conduct that presents a serious risk of physical injury to another.” Id. at 596, 110 S.Ct. 2143 (internal quotations omitted). The Court determined that if Congress intended to reach only this “subclass” of burglaries, the inclusion of “burglary” in § 924(e)(2)(B)(ii) was superfluous, as the statute separately included any offense that “ ‘involves conduct that presents a serious potential risk of physical injury to another.’ ” Id. at 597, 110 S.Ct. 2143 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)).

A more rational explanation for specifically and separately including burglary as a predicate offense, said the Court, was that “Congress thought that certain general categories of property crimes—namely burglary, arson, extortion, and the use of explosives—so often presented a risk of injury to persons, or were so often committed by career criminals, that they should be included” even though the statutory elements of such offenses do not “necessarily involve the use or threat of force against a person.” Id. Moreover, the lack of qualifying language in § 924(e)(2)(B)(ii) suggested that Congress was concerned “not only [with] aggravated burglaries, but also run-of-the-mill burglaries involving an unarmed offender, an unoccupied building, and no use or threat of force.” Id.

In sum, the Court declined to limit the term “burglary” to “a special subclass of burglaries, either those that would have been burglaries at common law, or those that involve especially dangerous conduct.” Id. at 598, 110 S.Ct. 2143. Rather, the Court determined that Congress intended the offense to match in “the generic sense” the way “the term is now used in the criminal codes of most States.” Id. And, it concluded that “...