United States v. Cesar Bernel-Aveja
844 F.3d 206
5th Cir.2016Background
- Cesar Bernel-Aveja pleaded guilty to illegal reentry after deportation and the PSR applied a 12-level § 2L1.2(b)(1)(A)(ii) enhancement based on a 1996 Ohio third-degree burglary conviction, yielding a Guidelines range of 30–37 months; the district court imposed 37 months.
- The Ohio conviction was under Ohio Rev. Code § 2911.12(A)(2) (pre-amendment), which incorporates the trespass definition (enter or remain without privilege) and criminalizes trespass in a habitation "with purpose to commit... any misdemeanor that is not a theft offense." The judgment reflected a third-degree felony.
- Bernel-Aveja objected that Ohio law permits the requisite criminal purpose to be formed after entry or while remaining, so the statute is broader than the Taylor generic definition of burglary (which requires unlawful entry or remaining in with intent to commit a crime at the relevant time).
- The Ohio Supreme Court in State v. Fontes construed similar Ohio burglary language to permit formation of intent at any point during the trespass; both parties agreed Fontes applies to § 2911.12.
- The Fifth Circuit panel applied the categorical approach and followed its precedent in United States v. Herrera-Montes, concluding Ohio § 2911.12 is overbroad because it allows intent to be formed after unlawful entry; the court vacated the sentence and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument (Bernel-Aveja) | Defendant's Argument (Gov't) | Held |
|---|---|---|---|
| Whether the 1996 Ohio burglary conviction qualifies as "burglary of a dwelling" under the § 2L1.2 generic definition | Ohio burglary permits intent to be formed during the trespass (after entry), so it is broader than the generic burglary that requires intent at time of entry/remaining | Ohio law as applied in the Tenth District at the time required intent at entry; alternative district law variation pre-Fontes means conviction could match generic burglary | The Ohio statute is overbroad for generic burglary because it allows intent to be formed after unlawful entry/while remaining; conviction does not categorically match "burglary of a dwelling" for § 2L1.2 enhancement (vacated and remanded) |
| Whether state-court divergence (pre-Fontes appellate split) permits relying on local pre-Fontes law to treat the conviction as generic burglary | (implicit) Pre-Fontes circuit splits mean some districts required intent at entry, so the specific conviction might match the generic definition | The elements are defined by the state statute as construed by the state supreme court; Fontes applies retrospectively to define the offense elements | Court rejected relying on district-level pre-Fontes precedent; Ohio Supreme Court’s construction controls and is retrospective, so variability among districts cannot supply a narrower elements definition |
| Whether Herrera-Montes precedent requiring intent at time of entry/remaining governs this case | Herrera-Montes controls; generic burglary requires intent at time of unlawful entry or remaining in | Government argued Herrera-Montes should not control or that Ohio law here fits within remaining-in alternative | The panel adhered to Herrera-Montes: generic burglary requires intent at the time of unlawful entry or remaining in; Ohio law’s allowance for post-entry formation of intent makes it overbroad |
| Whether the Guidelines’ definition (as of 2015) should be informed by state statutes and national majority practice on "remaining in" timing | Bernel-Aveja relied on Fontes and state-law practice showing intent may be formed while remaining | Government urged focus on local prevailing law at conviction and on circuit splits favoring inclusion | Court followed categorical approach and state-supreme-court construction; concluded Ohio statute falls outside the generic definition and remanded for resentencing |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (1990) (articulates the "generic" definition of burglary: unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime)
- United States v. Herrera-Montes, 490 F.3d 390 (5th Cir. 2007) (Fifth Circuit held generic burglary requires intent at time of unlawful entry or remaining; applied categorical approach)
- State v. Fontes, 87 Ohio St.3d 527, 721 N.E.2d 1037 (Ohio 2000) (Ohio Supreme Court held a defendant may form the purpose to commit a crime at any point during the course of a trespass)
- United States v. Bonilla, 687 F.3d 188 (4th Cir. 2012) (concluding a Texas statute that permits intent to be formed after entry qualified as generic burglary under a broader view)
- United States v. Constante, 544 F.3d 584 (5th Cir. 2008) (held certain statutory language lacking intent-at-entry element was not generic burglary)