Cal. Burglary Not a Crime of Violence? Defendant Wins New Sentence

Burglary may not mean what you think it means.

When Alfredo Huizar pleaded guilty to reentering the U.S. illegally after an earlier deportation, the district court held that Huizar's 1995 California conviction for residential burglary qualified as a "crime of violence," triggering a 16-level enhancement. On appeal, Huizar argues the enhancement wasn't legally authorized and his sentence needs to be reconsidered.

And the Tenth Circuit Court of Appeals says that he is right.

The Sentencing Guidelines include "burglary of a dwelling" among the "crimes of violence" warranting a sentencing enhancement. Here, Huizar was convicted by a California court of burgling a dwelling. Under Guidelines § 2L1.2, that's a "crime of violence," so the enhancement would seem to apply.

Except it doesn't apply automatically.

In Taylor v. United States, the Supreme Court held the word "burglary," at least as it appears in the Armed Career Criminal Act (ACCA), doesn't refer to whatever conduct the states consider to be burglary. Instead, Taylor explains that the term has a more "generic, contemporary meaning."

The Tenth Circuit Court of Appeals originally extended Taylor's ACCA analysis to the sentencing guidelines context in United States v. Rivera-Oros. In Rivera-Oros, the appellate court concluded that, to qualify for a § 2L1.2 sentencing enhancement, there must be proof that the defendant committed an "unlawful or unprivileged entry into, or remaining in" a dwelling "with intent to commit a crime."

California's burglary statute, however, doesn't require proof that the burgled place was a dwelling, or proof that the defendant's entry was unlawful or unprivileged.

For both these reasons, the Tenth Circuit couldn't determine as a categorical matter that Huizar's California burglary conviction qualified as a "generic" burglary of a dwelling for a § 2L1.2 sentencing enhancement. Even under a "modified categorical approach," the appellate court couldn't be sure that Huizar's burglary involved unlawful or unprivileged entry in the generic sense.

The Tenth Circuit vacated Huizar's sentence and remanded the case to the district court for resentencing. He could still receive the same sentence enhancement, but the district court cannot assume that Huizar's California burglary necessarily triggers the ACCA sentence enhancement.

Related Resources:

• U.S. v. Huizar (Tenth Circuit Court of Appeals)
• Judge Posner Trusts Judges' Sentence Enhancement Instincts (FindLaw's Seventh Circuit Blog)
• Escape is a Violent Felony Under Armed Career Criminal Act (FindLaw's Second Circuit Blog)