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State Burglary Definition Good Enough for Fed Sentencing

By Brett Snider, Esq. on December 17, 2013 | Last updated on March 21, 2019

Burglary may be a common law concept, but when it comes to sentencing enhancements, there's plenty of case law on what constitutes "burglary" for federal sentencing.

The Fifth Circuit added to that line of cases in U.S. v. Guerrero-Navarro, affirming that Washington state's definition of burglary isn't overly inclusive for federal sentencing purposes.

What was Guerrero-Navarro's argument?

Sentence Enhancement for Prior 'Violent' Crime

Guerrero-Navarro was appealing his sentencing from a Texas federal district court because he felt that the Federal Sentencing Guidelines were being misapplied in his case. He had been convicted of being in the U.S. illegally with a prior felony conviction as well as a new gun charge.

These weren't the problem convictions; it was prior residential burglary charge in Washington that brought the federal sentencing hammer down. And, the sentencing enhancement applies for crimes of violence such as "burglary of a dwelling."

The sticking point was whether the Evergreen state's definition of burglary was too broad as to be outside the scope of the federal definition. Luckily, SCOTUS tackled this same issue in Taylor v. U.S., in which the Court determined that statutory language didn't have to be identical between federal and state, just so long as the basic common law elements of burglary were satisfied.

For those of you who slept through your 1L crim class, they are:

  • Unlawful/unprivileged entry
  • Into/remaining in a building or other structure
  • With intent to commit a crime/larceny

However, since this enhancement dealt more specifically with burglary of a "dwelling," Guerrero-Navarro focused on the difference in laws on "dwelling."

Dwelling Sweet Dwelling

Apparently the Ninth Circuit took up this exact same issue with Washington's law in 2003 and found that the "dwelling" definition was too broad to apply the federal sentencing guidelines.

In U.S. v. Wenner, the Ninth Circuit distinguished this kind of case from ones like Taylor because of the distinction between common law burglary and the heightened punishment attached to residential burglary. The latter is the one Congress intended to punish as a "violent" crime, so the distinction is crucial.

The Fifth Circuit disagreed with the Wenner Court, finding that the parade of horribles that the petitioner believed could be included as dwellings under the Washington law (i.e. vending machines and fenced-in yards) have never been tested or upheld by any Washington court. The most extreme "dwellings" tested under the statute have been trailer houses and attached garages, which were found to be dwellings.

The Guerrero-Navarro court applied a sort of "reasonable probability" test to the extreme examples the petitioner mentioned, and found that they were hypothetical at best.

Maybe the Supreme Court will have to step in to decide this one once and for all.

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