United States v. Cesar Bernel-Aveja

HIGGINBOTHAM, Before SMITH and OWEN, Judges. Circuit OWEN, PRISCILLA RICHMAN Judge: Circuit Bernel-Aveja un- Cesar was convicted (b)(2) 1326(a) illegal 8der U.S.C. reentry deportation appeals his that his sentence. He contends qual- Ohio for burglary does ify “burglary dwelling,” of a a specifical- ly enumerated “crime of violence” under Sentencing Guideline 2L1.2,1 and therefore the district applying court 12-level erred sentence his enhancement. sentence and We vacate resentencing. remand

I

Bernel-Aveja guilty pleaded without reentry agreement illegal after de- plea Sentencing Sentencing (U.S. 2L1.2 U.S. Guidelines Manual Comm'n addressing aggravated specifically fel- Without Bernel- subsequent to an portation timing of Aveja’s argument respecting the conviction, of 8 a violation ony generic burglary, purposes intent for 1326(a) (b)(2). presen- U.S.C. applied court crime of vio- the district (PSR) a base report recommended tence imposed lence enhancement and within- Sentencing pursuant of 8 level offense im- sentence of 37 months of Guidelines 2L1.2(a), a “crime and 12-level Guideline by three-year a term prisonment, followed pursuant of enhancement violence” Bernel-Aveja supervised has of release. 2L1.2(b)(l)(A)(ii), concluding Ber- appealed. nel-Aveja’s 1996 Ohio conviction for third- a “crime of degree constituted II Bernel-Aveja for which received violence” Sentencing provision ap- Guidelines history points. applying After a no criminal Bernal-Aveja’s conviction for plicable to for acceptance respon- reduction 3-level reentry deportation illegal after was sibility, the calculated total offense PSR in 2L1.2 effect June version of criminal of 17. recommended level With sentenced. It when he was directed III, category of the PSR history calculated be the offense level should increased Bernel-Aveja’s sen- advisory Guidelines previously defendant was convicted months of tencing range to 37 felony of a described subsection imprisonment. (b)(1)(A) that not receive criminal his- did Chapter Four tory points of the under Bernel-Aveja filed objections written A of violence” was Guidelines.2 “crime designation of his convic- the PSR’s among qualifying felony offenses de- tion a “crime of violence.” Pertinent subsection,3 in that scribed defini- Ohio appeal, argued this Bernal included tion “crime of violence” “bur- qualify offense did not as the enumerated glary dwelling.” of a “burglary dwelling” offense because permits though conviction “even Ohio appeal The sole issue is forms court the district erred con whether cluding Bernel-Aveja’s 1996 Ohio bur- trespass.” Sentencing 2. See U.S. 3. See id. Guidelines Manual (U.S. Sentencing 2L1.2(b)(1)(A) Comm’n 2014), provided: which l(B)(iii): cmt. id. (b) Specific Offense Characteristic any of means the fol- "Crime violence” (1) Apply the Greatest: federal, state, lowing under or offenses previously deported, If the defendant was murder, manslaughter, kidnap- local law: or remained the United assault, aggravated ping, forcible sex of- States, after— (including fenses where consent to the (A) (i) felony a conviction for a is given legally is not or is not val- conduct trafficking drug offense id, as where consent to the conduct such months; imposed sentence exceeded coerced), involuntary, incompetent, or violence; (iii) (ii) a crime a firearms minor, statutory rape, abuse of a offense; offense; sexual (iv) pornography a child arson, extortion, robbery, ex- extortionate (v) security of- national or terrorism credit, burglary dwelling, of a fense; offense; tension (vi) trafficking a human federal, state, any (vii) other offense, offense under smuggling an alien increase law has as an element the local by 16 levels if conviction receives use, use, attempted history threatened use of points Chapter criminal physical against person force of an- Four or does levels if the conviction history points.... not receive other. criminal of a glary “burglary present conviction constituted or likely to be dwelling,” meaning present, within the 2L1.2 -with purpose commit in Guidelines in effect when sen- habitation any misdemeanor that offense; tenced.5 “We district inter- review court’s is not theft pretation application guidelines (3)Trespass permanent or tem- de novo”6 here, when, there was porary any person habitation of objection pre- in the district court that any person present likely to be appeal. served the issue for present. judgment of conviction regarding Bernel-Aveja’s 1996 offense establishes (C) violates this Whoever section is pleaded

that he guilty burglary in the guilty burglary. A violation of division degree Ohio third sec- Revised Code (A)(1) aggravated is an felony of the legislature tion 2911.12.7 Ohio amend- degree. A second violation of division section 2911.12 com- Bernel-Aveja ed (A)(2) of this felony section is a of the mitted the prior offense in degree. A third violation of division guilty pléa. However, of his (A)(3) of this felony section ais questions amendment is irrelevant degree.8 fourth us, parties agree before and both that we prior should consider the statute its Goyemment Bernel-Aveja and the Bernel-Aveja amendment. When commit- agree that he was convicted under subsec- offense, pro- the 1996 section ted 2911.12 (2) tion of section 2911.12 the Ohio because pertinent in part:

vided judgment of conviction reflected his (A) force, stealth, person, No or de- degree felony. offense was third ception, any following: shall do “trespass” term meaning obtains its from (1) Trespass in occupied structure statute, trespass Ohio’s criminal which ... purpose to commit therein “(A) provides: No person, privilege without any or any felony; theft offense so, (1) shall any do do following: (2) Trespass in a permanent or tem- on Knowingly enter or remain the land or porary of any person premises habitation when of another....”9 unpublished opinions, Id. In two Bernel-Aveja argue court this tation.” does not that a has held provisions that other Ohio "permanent temporary applies habitation” prohibit trespass “occupied into an struc non-dwelling and is structures therefore ture,” by statutory which is definition not Rather, "dwelling” than broader element. limited habi to structures used human appears he to concede the issue. tation, 2909.01(C see Ohio Rev. Code Ann. ) (West 2016), categori Supp. 2006 & do not Bonilla, F.3d 6. United 651- cally qualify dwelling. of a (5th Cir. Ramirez, Fed.Appx. States v. (5th 2009) curiam) (per (vacating 963-64 Cir. (West 1990) 2911.12 Ohio Rev. Ann. prior a sentence enhancement based on a (amended 1, 1996). July conviction under Ohio Rev. Code Ann. Rees, 2911.11(A)(1)); United States 8. Id. (5th Fed.Appx. (per curiam) (vacating a sentence enhancement 2911.21; see also State on a 9. Ohio Rev. Code conviction under based Rev. Ohio Clelland, 2911.12(A)(3)). App.3d 83 Ohio N.E.2d Bemel-Aveja’s Code Ann. (explaining the term "occupied statute of conviction lacks the proscribes “trespass” in section structure” term and instead tres defined in 2811.21). pass “permanent temporary of a habi section ap the Ohio intermediate courts incorporating After the elements 2911.12, issue of into section on the when trespass” peals “criminal were divided pro requisite issue burglary statute at must form the the Ohio s : vide The Government 2911.12.12 under section force, stealth, rely on therefore (A) de- submits that we should person, by No shall in 1996 the Tenth prevailing the law ception, so, Ohio, Ber privilege to know- District of district which do [without or nel-Aveja or remain the land Dis enter convicted. The Tenth ingly permanent that “the Appeals,had another] trict held Court of any person temporary habitation forcibly tres intent with which likely any person present occupied is that passes in an structure present, purpose in mind at the which he had habitation misdemeanor entry, not one formed offense. is not theft However, authority—State v. later.”13 expressly by the overruled “burglary Flowers—was Bernel-Aveja contends that Guidelines, v. Fontes.14 Supreme Ohio Court State dwelling,” used the. defendant to have requires the Supreme decision The Ohio Court’s unlawfully, enter- crime when commit a law; change the it con did not Fontes dwelling. ing the Because the existing Ohio The strued an statute.' language in of has construed Court Ohio among conflict decision resolved a Fontes virtually that is identical another statute10 courts. As the appellate Ohio intermediate the at section 2911.12 language issue Supreme explained, of has Court Ohio to commit a crime to mean that the intent general of a rule is that “[t]he a.decision during the may be formed at jurisdiction overruling a supreme of court Bernel-Aveja trespass,11- contends oper in its retrospective former decision overly crimi- 2911.12 broad and section ation, the effect is not the former that the offense of nalizes conduct law, the bad but that never was was contends, Therefore, not. does of elements of law.”15 The Bernel-Aveja’s of his not conviction was “crime by consulting the fense are determined § 2L1.2 of the violence” under Guidelines. ’ statute, Supreme the as construed Court Ohio.16 Ill position also Government’s would arguments One of the Government’s ¿nomalous con- Bernel-Aveja produce the result that for that when was convicted 2911.11(A)(1). 14. See Fontes, (holding See N.E.2d 721 1040 Rev. Code Ohio not follows we that "it therefore are Fontes, 527, persuaded by judgment[ court[ of] 11. See the ] 87 Ohio State v. St.3d Flowers"). appeals 1037, (2000) [State v.] (construing N.E.2d Ohio 2911.11(A)). Rev. Code Ann. Bowers, 15'. Co. Ohio St. Peerless Elec. Clelland, (per N.E.2d cu & n.3 615 N.E.2d at 285-86 riam). cases); L.D., (collecting 63 Ohio see re also In (Ohio Misc.2d Ct. N.E.2d See, (observing States, Com. that Ohio courts Pi. e.g., 559 U.S. Johnson v. "inexplicably split 136-38, are in their resolution” 130 S.Ct. 176 L.Ed.2d issue). timing-of-intent Supreme (relying on a Florida Court post-dated the conviction at decision Flowers, of App.3d of Florida 16 Ohio issue to define elements State v. — fense); States, (1984). see Mathis v. United N.E.2d also Fontes, pre-dating victions the crime-of- subsequently has reiterated that “[o]ur that, depend on violence enhancement would make clear the state was re- cases court of convic- which Ohio was court quired [the show that defendant] invad- pleaded guilty tion. A defendant dwelling purpose ed the for the of com- Ohio before Fontes is- Tenth District mitting a crime or that he formed that may sued receive 12-level enhancement during trespass.”21 case, in this issue while defendant Though Fontes subsequent and the Ohio pleaded guilty adjacent district would Supreme Court decision convic- concerned not. under tions Ohio Revised Code section Fontes, In was defendant convicted 2911.11,22it is undisputed that holdings rape aggravated burglary.17 regarding cases timing those Though disputed, the facts were there was apply 2912.12 section as well be- defendant, evidence that the ac- who was cause both statutes term use defined victim, quainted un- with the entered her “trespass” and include similar intent ele- apartment vic- locked while the uninvited ments.23 sleeping tim under influence of We must determine whether section medication, pain per- s is overly inclusive and doe not her.18 upon formed nonconsensual sex oral come meaning within “bur jury was instructed that the defen- glary dwelling” since sec dant possess purpose “need tion, the intent to commit á crime commit a to tres- criminal offense during trespass formed neces passing into an occupied structure sarily entry. time of purpose form commit a crimi- could trespass .prog- nal while the is in offense !Y ress.” Ohio Court upheld conviction, Guidelines do not holding the “a defendant define form the commit a crimi- offense in purpose to the 2L1.2 denominated any point during “burglary dwelling.” nal offense at course of a the We determine of a trespass.”20 Supreme Court of an Ohio elements offense enumerated U.S. —, 2243, 2256, Gardner, 998-99; Fontes, 136 195 L.Ed.2d 22. See 889 N.E.2d at (2016); Fankell, 604 Johnson 520 U.S. 721 N.E.2d at 1037. cf. 916, 117 S.Ct L.Ed.2d (1997) ("Neither any nor 2911.11(A) this Court other Compare 23. Ohio Rev. Ann. any authority place (West 2006) (“Ño stealth, force, federal tribunal has to by or person, on construction a state statute different from deception, trespass occupied shall in an struc highest by ..., the one rendered court of person when ture another other than an State.”). accomplice present, of the offender is purpose any to commit structure Fontes, offense....”) N.E.2d at 1038. with Ohio criminal Rev. Code (West 2911.12(A)(2) 1990) ("No per force, stealth, son, by deception, 18. Id. shall ... (2) Trespass permanent temporary in any 19. Id. at 1039. any person habitation present, present likely purpose be to Id. at 1040. the habitation misdemeanor offense.”); not a theft see State that is also Gardner, Evett, 14CA0008-M, Ohio St.3d No. State v. WL N.E,2d 995, (Ohio Fontes, (citing App. July (applying Ct. at *3 1037). 2911.12(A)(1)). N.E.2d to a Fontes conviction under apply its to con- not ex- would provision that State a Guidelines ge- ascertaining its by

pressly generic defined outside the duct that falls defini- neric, we contemporary meaning.24 When ”28 tion of a crime.’ generic elements have determined v. Herrerar- held in United We offense, employ the generally we Montes that the of bur- definition compare the “categorical”' approach by Supreme Court glary upon arrived to the ele- state offense elements v. United States “requires that As the ments offense.25 explained, has often commit crime Court defendant intend look this ‘not approach “[u]nder we remaining unlawful the time particular the facts HerrerarMontes, case/ Our decision in.”29 state statute but instead whether ‘the decision in United States subsequent our categor- defining the crime conviction’ govern this case. statu- Constante;30 ically ‘generic’ federal fits within tory subsections under consideration corresponding” of a offense.26 and Constante were not Herrerar-Montes the state “Because we examine what “remaining in” while the Ohio provisions,31 involved, necessarily not conviction Bernel-Aveja was statute under which case, pre- must underlying the we facts was a statute. convicted upon sume that ‘rested the. our statements Herrerra- Nevertheless, more [nothing] th[e] than least Montes and in note Constante—which criminalized, and then determine acts’ is for commit- when a conviction those are encom- whether even acts entry, the intent commit ted passed by the generic federal offense.”27 on must be formed However, not an invitation “is entry—were time of dicta of- apply ‘legal imagination’ to the state they binding this court are because fense; proba- ‘a there realistic holdings bility, that were essential in those possibility, theoretical See, involving e.g., Ortega-Gonzaga, Armed Career Criminal Act States v. 924(e), 2007). (ACCA), (5th Cir. 18 U.S.C. “[w]e 490 F.3d requires ‘Taylor held that that the defendant See, e.g., a crime at un United States v. Pascacio-Rodri intend (5th ”) guez, (quoting F.3d in’ Herr lawful era-Montes, 392); 490 F.3d at United States v. — Holder, —, Constante, 584, 586, (5th 26. 133 v. U.S. F.3d 587 Cir. 544 Moncrieffe 1678, 1684, curiam) (in 2008) 727 (per arising 185 L.Ed.2d S.Ct. case under a Duenas-Alvarez, ACCA, (quoting holding 549 U.S. v. that conviction for "en Gonzales 815, 183, 186, tering] building 683 166 L.Ed.2d or com habitation and —States, (2007)); mitting] attempting] felony, see also Mathis v. United to commit a U.S. —, theft, assault," 195 L.Ed.2d 136 S.Ct. or an under Tex. Penal Code (2016). 30.02(a)(3), § was not Ann. not because did contain element Moncrieffe, (quoting 27. 133 S.Ct. at 1684 crime "at moment States, 133, 137, Herrera-Montes, v. U.S. entry") (citing Johnson United 490 F.3d (2010)). 392). 130 S.Ct. L.Ed.2d 1 Duenas-Alvarez, (quoting 28. Id. at 1684-85 544 F.3d at 586-87. 127 S.Ct. U.S. (addressing Tex. Penal Code 31. See id. at 585 Herrera-Montes, (5th 2007); 30.02(a)(3)); § 490 F.3d 490 F.3d see also Cir. Ann. F,3d Fambro, (addressing 39-14- States at 402(a)(3)). Ann. Tenn. Code (5th 2008) (noting in dicta in a case Cir. cases.32 court vacated the sentence and remanded for resentencing.36 statutory provision un Tennessee der which the defendant Herrerra- In Constante we particular held that a previously Montes had been convicted de Texas offense “is not a fined offense of conviction follows: under the definition be- “(a) who, A commits with cause it not does contain an element of out property consent of the effective intent to commit a [crime] at the moment [e]nters owner and com-' entry.”37 Texas at issue offense was attempts felony, theft, to mits commit a set forth in Texas Penal Code or assault!...”33 We held because § 30.02(a)(3), which . criminalized “en- this provision require did not intent “to tering] or habitation and com- commit a crime at the time unlawful mitting] or attempting] felo- remaining in” the offense was not theft, ny, or an assault.”38 We held a crime of violence 2L1.2.34 this felony” offense was not a “violent un- so, Though say not expressly didwe der the ACCA.39 attempted commission or commission of “a theft, or felony, assault” constituted case, present In the the elements aspect “intent” offense, the Tennessee of the Ohio Bernal-Aveja offense since intent must be at least formed separate convicted are found two time the person attempts “commits or statutes.40 The in” alternative commit” of the enumerated in one offenses “entry” partially set forth within the Tennessee statute. Herrera- “trespass,” in section found hypothetical Montes offered decision 2911.21(A).41 appear These do not example “teenagers who enter a offenses, define two such that separate party, house only later decide entering privilege necessarily without crime,” opining they “are separate offense from without remaining burglars” common such scenario.35 jury unanimity privilege, and would be re Because the Tennessee statute did not re quire quired as to commit a crime whether unlawful in, both, entry, been at the formed occurred.42 Constante, Segura, States 747 F.3d See United 37. United 544 F.3d (5th 2014) (5th 2008) ("A curiam). (per statement is dictum Cir. seriously it could have been deleted without (construing Id. at 585 Ann, Tex. Code impairing analytical foundations of the Penal 30.02(a)(3)). being holding peripheral, may not have received full and careful consideration of Id. 587. A court uttered it. statement necessary dictum if it is result or con- (West 40. Ohio Rev. explication governing stitutes rules (amended 1, 1996), 2911.21(A)(1). July law,”) (internal omitted) quotation marks Corp. (quoting Engine Bray, Int’l Truck & 2911.21(A)(1) ("No person, 41. Id. without (5th 2004)). F.3d 721 Cir. 372 so, privilege any to do shall do follow- (1) [k]nowingly ing: on enter or remain 39-14-402(a)(3). 33. Tenn. Code ”). premises land or another.... Herrera-Montes, —States, U.S. —, 490 392. F.3d at 42. See United Mathis v. 136 S.Ct. 195 L.Ed.2d 604 (explaining Id. how to determine if statute is a divisible, which means that it sets forth more offense). than one in” event, “remaining no in Herrera-Montes there indication In a to a Bernal-Aveja in a reference footnote and before was discus us record case, companion sion in ’s “remaining in” Herrera-Montes of unprivileged convicted But to Ortega-Gonzaga.46 even we were Therefore, entry. than unprivileged rather a in” “remaining confine the definition Bernal-Aveja could we must assume generic to situations which en entry, been convicted unlawful remaining in try lawful and was “remaining in.”43 than rather unlawful unlawful, the was Ohio statute issue permits the to find that Ohio law factfinder require to appear does unlawfully factfinder entered a dwell the defendant to between two choose alternative .offenses thereafter formed the to entry entry of unlawful or lawful but un Therefore, on a crime.44 commit based lawfully remaining example, For it ap in. Herrera-Montes, of holding the Ohio lawfully Montes that that case occur elements of a fense is tive does glary case. clearly “Taylor glary congruent could into We after fact indicate entering, A requires overly be. that wé said have a unlawfully its remaining Conceivably, “remaining in” generic affect applicability what broad because “remaining recognized classic Herrera-Montes the actual the time of “remaining may we burglary. entering or in.”45 example considéred the offense to the We in” alterna holding Herrera- unlawful in” present did not intend after bur law bur hot nel-Aveja definition in Herrera-Montes. after tion of fully trespass, a pears that does Therefore, appear sisted person unlawfully entered while others unanimity commit a could crime .remained not come find he while unlawful some as to when the intent crime on was unlawful lawfully required within Ohio on the convicted jurors ^[*] entry as we articulated that the Ohio definition of offense ^[**] entry. premises. entered but unlaw premises could under Ohio law.47 with the intent “generic” could have con for This find Similarly, does not commit formed offense that a defini Ber- Accordingly, ful in would VACATE Bernel-Ave we. ja’s sentence and REMAND resentenc- during be when enters bank ing. regular then hours conceals himself with intent to theft bank HIGGINBOTHAM, PATRICK E. noted, As closes. our decision in Herrera- judgment: Judge, concurring Circuit

Montes not clear as we would how urged generic burglary Today define our Court tread a is. offense, path overarching though purpose there discussion that defies — Holder, U.S. —, Fontes, (ap- 47.See N.E.2d at Moncrieffe 1678, 1684, (2013). proving jury L.Ed.2d 727 instruction to court’s trial aggravated "in order to be convicted of Fontes, 44. See State v. 87 Ohio St.3d burglary, possess pur- appellant need not (2000). N.E.2d pose to commit criminal offense occupied trespassing into an structure but Herrera-Montes, States v. F.3d purpose commit a could form the criminal (5th 2007), Cir. progress”), trespass is in offense while the Herrera-Montes, 46. See n.1 F.3d (citing Ortega-Gonzaga, United States v. 2007)). (5th F.3d 396 & n.5 congressionally of is no contrary, authorized failure. To the enhance- states ments of criminal sentences in federal all of sweeping “burglary” state definitions Congress court. authorizes enhancement into the is a pursuit federal rule for a prior if con- sentence has the defendant “uniformity” that the central pur- defies' crimes, victions including of certain state- pose assigning weight in similar sen- court convictions. These lie enhancements tencing to conduct. directly, similar Stated larger sentencing in a matrix of guidelines. congressional confounds purpose. guidelines large pattern form a inform reading These realities must our regulation sentencing very whose struc- Supreme generic Court’s formulation. ture was born of the effort to achieve The federal circuits differ over among sentencing defendants fairness meaning phrase “remaining in” in assuring that made criminal conduct generic Court’s definition of equal weight had all across defendants. burglary.1 Broadly speaking, circuits offer sentencing When a looks court competing two The first is views. view that captured criminal conduct state-court of “remaining the act in” for convictions, among varied labels the states purposes burglary “is a discrete for the same conduct its challenge criminal event that occurs at the moment when a fix adopt was to effort. perpetrator, point who one lawfully metric—here, federal burglary. for toAnd present, exceeds his license overstays assure all were defendants treated his oft-given example welcome.”2 The is conduct, for same same state-court during the bank enters customer who busi- crime, label of a would not control. For hours, ness then hides until after closing, state, example, a opting expand its defi- so empty, the bank is he can of burglary petty nition to include a theft money.3 view, take the bank’s this Under trespassing, while as it committed is free in” act at a dis- occurs do, would create sentenc- disparities time, point crete and to constitute bur- ing engaged who quite defendants glary, perpetrator must have intended different conduct. crime at that further discrete All much rote. But follows from ' point.4 principles these basic of evenhanded sen- competing interprets “remain tencing their view deploy the effort be a mitigate undertaking to. continuous corrosive into disparity bite reality presentment of an that exists the entire condition duration even- perpetrator building.5 It that a inside of a handed judiciary. apparent view, by gathering many any point during effort Under this is ill-served possible trespass states as a common label. forms the intent perpetrator crime, template That our is not all federal met to commit a further he converts his States, 1. See U.S. LaFave, Wavne R. Substantive Criminal Law 21.1(b)(2d ed.). 109 L.Ed.2d 607 (“[T]he generic, contemporary meaning of following means, course, (“This contains at ele- least requi- into, unprivileged ments: unlawful or crime within need site in, structure, or other exist at the time the defendant crime.”). within.”). with intent to commit a remained McArthur, Bonilla, 2. United States v. 836 F.3d 687 F.3d See United States v. (8th 2012). (4th Cir. crime;9 of a bur- commission subsequent trespass into from full-blown

presence those provisions under glary convictions because generic burglary come within similarly “while crime was formed remain- further “remaining in” alterna- only through view, perpetrator By in.”6 this broadly. tive construed at the had need not have criminal began, trespass he need have only approach ge took the narrower We developed point during it at some tres- in” “remaining language burglary’s neric immediately prior commit- pass—even Herrera-Montes.10 building.7 ting the further inside There, with whether were confronted we Supreme explains its As the Court Ohio above, statute cited Tennessee law, continuing “a state nothing criminalizes “burglary” labeled trespass long so as he is there criminal being committing a crime than while more Thus, if during the permission. without for the trespasser, generic burglary trespass forms course of Sentencing of the Guidelines.11 purposes offense, felony purpose come provision could have That Tennessee burglary is committed aggravated crime of only under a broad generic burglary within con- This view criminalizes time.” in” in “remaining generic reading broadly. duct more reading, rejected that broad definition. We in disapprovingly that “if the explaining of the two views We must decide which evety anytime, then tent be formed could Supreme encapsu- Court intended an unlawful committed after crime' “remaining in” it late when included A burglary.”12 would be “entry” alternative defini- its too holding swept contrary would burglary. tion of has relevance answer giving weight same to crimi broadly, minority given of states have because only the having nal in common conduct burgla- phrase “remaining their in” burglary. label of ry interpretation—the the broad statutes survey special suppos- special of the concurrence concurrence calls Herrera- equal, All else in” edly identifies fourteen. of the Montes ’s discussion generic burglary with- “offhand those states’ convictions fall alternative ed,” “entirely generic burglary only “entirely gratuitous,” if the Yet, ‘Temaining language in very eases unnecessary” Court’s dicta. same, given circuit ac broad advocates this follow Additionally, like Tennessee’s knowledge construction. two states have provisions generic burglary that crimi- can under “burglary” enacted con remaining-in special than alternative.13 nalize no more assault.”); added). felony, (emphasis mit a theft or 6. Id. at 194 Tex. Penal 30.02(a)(3) (similar). Code See, Fontes, e.g., State v. 87 Ohio St.3d 7. (2000) (trespasser 721 N.E.2d (5th F.3d 390 Cir. rape spontaneously who decided to inhabitant discovering sleeping her upon became a bur (citing 39-14- at 391 Id. Tenn. result). glar Ohio law under as a 402(a)(3)). 1039-40. Herrera-Montes, 490 F.3d at 392 n.1. 39-14-402(a)(3) per- ("A Code Ann. Tenn. who, Priddy, 808 F.3d son effec- 13. See United States commits without the (6th 2015) ("And, burglary property tive owner: ... Enters consent 39-14-402(a)(3) attempts is also a [Tenn. com- Code Ann.] and commits or redundancy conclusion of point currence’s that Herrera-Montes the meaning “the it, opined on issue not before ‘burglary’ of for purposes of [the ACCA]” only on the fact the Tennessee focuses “depend does on the definition adopted not the “re statute does contain words by the State of conviction.”15 The Court in,” is maining therefore erroneous. specifically multiple examples cited of that it states believed defined too That of precedent disposes appeal. this to broadly generic come within defini- conviction, Bernel-Aveja’s of Ohio “ tion.16 It ‘burglary’ concluded [the third-degree burglary, incorporates some uniform have ACCA] in,” phrase “remaining and the Ohio Su independent employed by the labels preme has to it Court ascribed the broader various States’ criminal codes.”17 The reading that it such criminalizes conduct recently Court reaffirmed that broadly “the label a every pro bit as as the Tennessee assigns ‘burgla- State to a vision in Herrera-Montes.14 Both crime—-whether- ry,’ ‘breaking entering,’ of conviction are than or something broader bur entirely—has cannot glary, support sentencing else no relevance to whether enhancement as enumerated that offense is an ACCA predicate.”18 of a “burglary dwelling.” incorporate The Court to declined special The calls for en concurrence state definitions of into the precedent, banc from departure pre- primarily ACCA because “[t]hat would ferring reading broad a person mean that convicted in” It burglary. faults the view for narrow would, possession firearm would failing to include all state “burglary” such not, receive sentence enhancement based within convictions definition. exactly conduct, on depending same on position- That purpose confounds the whether State of his sentencing -sought evenhanded to ‘burgla- call that conduct happened Sentencing Guidelines and stat- related ”19 ry.’ position spe- advocated fouls utes. It also the mandate of precisely cial concurrence leads itself. teenagers undesirable result: remain who beyond a house their Tay- invitation intend- Court’s discussion in party, lor then special undermines the later decide concurrence’s steal, emphasis any "convic- misplaced allowing earn themselves states) Ohio, Texas, tion (among states to be “left out” of other sentenc- Tennessee, ing enhancements. Court majority was clear but not “remaining-in” generic burglary aggravated burglary pursuant be variant the offense of 2911.11, pur cause someone who enters a a defendant form the R.C. and, inside, pose at commit at structure while commits or a criminal offense felony necessarily point during tempts trespass.”). of a will course have remained inside struc Bonilla, added)); (emphasis Taylor, ture to so.” do U.S. S.Ct. 2143. ("[A] at 194 defendant convicted F.3d [30.02](a)(3) 16. Id. under Penal section [Tex. Code] 110 S.Ct. 2143. necessarily developed the intent to commit building, 17. the crime while 110 S.Ct. 2143. he did not have it at the moment he entered.” — added)). (emphasis States, U.S. —, 18. Mathis v. United 2243, 2251, (2016). L.Ed.2d 604 Fontes, ("Accord 14. See N.E.2d at 1040 590-91, defining ingly, purposes Taylor, 495 we hold that for U.S. at 110 S.Ct. 2143. an alternative special maining concurrence’s used Under

states. view, “entry,” the two are set in perpetrators those identical whether means -and another, identically A parallel with one natural read- who conducted themselves refer to initi- ing suggests “violent felonies” that both committed Sentencing trespass, ACCA and Guidelines would the' of the ation use entirely jurisdiction of con- depend on the “with intent to dependent commit clause arbitrary suggests distinction that exist viction—an crime” must for “implausible” Congress it contemporaneously Court found that initiation. In- with stead, to special have intended.20 concurrence would have every in” “remaining us reach read of a small number states’ That trespassing crime committed while inside might from the be excluded convictions regardless building, when intent for generic purposes of definition Indeed, special formed. that crime was sentencing not an enhancement reading “remaining in” concurrence’s contrary, To the is a alarming result. in “entry” superfluous the Court’s renders by-product Taylor. The Su- desired view, generic definition because under that contemplated that preme Court some state every entry, becomes re- unlawful unlawful burglary convictions would fall outside immediately entry.24 maining in on generic due to the various its definition idiosyncrasies vagaries burgla- of state persuaded have been The circuits that states ry select few who The statutes.21 adopt reading broad interpret their noth- generic burglary done so because than location for more “a enhancement Court, announcing Supreme the cate- petty be theft”22 might what otherwise gorical approach, instructed courts not, not, Tay- need and should frustrate may vary” “the exact formulations off disparate lor’s federal effort fend look “corresponds the statute whether sentencing" from want of common meaning.”251 generic to the do substance labeling meaning criminal conduct charge dispense not take that to -be a . the states. character of with the most fundamental perpetrator trespass burglary: reading generic burglary prof- of , already harboring while intent to commit a special fered strains concurrence Rather, sense, language further crime. common an elusive element fed- labels. The disavow formal sentencing today. Supreme eral Court reliance categorical approach quite Court’s exact- burglary requires that generic made .clear into, ing, recently as has In- “an been iterated.26 unprivileged in, structure, deed, generic slight expansion beyond bur- other glary with intent crime.”23 “Re- takes a statute of conviction outside McArthur, at 110 S.Ct 2143. 836 F.3d at 944. 590-92, Taylor, U.S. at 110 S.Ct. 21. See Priddy, (citing 808 F.3d Taylor, 25. See at 685 Bonilla, 2143); 495 U.S. at (citing Taylor, 495 F.3d at 194 U.S. Anderson, 22. Helen A. From the Thief 110 S.Ct. Night Stayed Long: Too to the Guest who Burglary in Shadow Evolution Law, (2012). Mathis, Ind. L. Common 136 S.Ct. 2248-50. Rev. 26. See Taylor, 110 S.Ct. 2143 U.S. added). (emphasis so Surely lacking the definition.27 crimes ready generic from excluded burglary. the fundamental character of entirely. nigh different reason It is impossible to prospective determine Contemporary burglary statutes have manner subtle contours of every what developed significantly from their common burglary provision state This requires. roots; law Court’s precisely the reason recognizes as much.28But however states sought Court to free federal from courts burglary, elect define the federal undertaking extensive state burden definition must a discernable surveys. way present as the common kindred law burglary, crime of shed of albeit strictures I disagree my colleague’s spe- nighttime such occupied dwelling— concurrence cial the suggestions interpretation something being panel majority’s opinion in the that

urged special concurrence fails to precedent in circuit’s error. I concur in entirely do. It prerogative each state’s judgment. the broadly how its burglary construe stat- ute, generic the burglary metric of OWEN, PRISCILLA RICHMAN should not read to invite similar 'treat- Judge, concurring: Circuit for shop- ment dissimilar a offenders. And though Even amendments to the Sen- apart lifter is a world from one who enters tencing Guidelines effective November or remains in a with intent “burglary of dwelling” eliminated least, enough, at Con- steal—different enumerated, offense in deter- predicate gress focused its enhance sen- efforts mining a Sentencing whether Guidelines tences on the professional wave of- crimi- applies,1 enhancement how courts define main support nals financial on whose rests generic burglary impor- continues be of burglary.29 “Burglary” predi- tance. anis enumerated Assuming accuracy survey the of the cate offense the Armed in Career Criminal concurrence, special undertaken the .(ACCA),2 “aggra- Act and the definition of phrase fourteen states the “re given have felony” purposes immigration of vated maining burglary in” in their statutes “burglary.”3 laws includes of in broad construction. side Which issue, importance of of I Because po stant one prefers debate has the taking step filing am the unusual of tential affect whether those fourteen concurring opinion, opinion I ge state are included as burglary; panel, of the com special neric written behalf concurrence all, to the in seeks to include them and the conclusion dicta our view v. Herrera-Mo in expressed may here have the effect decision excluding way them al them. Some ntes4 defined (Iowa burglary Sentencing Id. not 1. See U.S. Guidelines Manual app. entry Sentencing burglary because it includes unlawful at (U.S. C, amend. vehicles, buildings); just Taylor, 2016). into Comm’n S.Ct, (California burgla- U.S. at ry generic burglary supports because it 924(e). U.S.C. 2. 18 lawful). entry conviction even when was 1101(a)(43)(G). 3. See 8 U.S.C. 592-96, Taylor, 28. See 495 U.S. at 110 S.Ct. (5th F.3d 390 4. 490 584-85, premises crime on the commit another Supreme supported is not formed, is no Taylor v. United there indication opinion must be Court’s set enacted, States5 or the elements ACCA adopted by majority forth in statutes agreed that codes of most States criminal time the ACCA was at the the States to commit a crime on the at issue Although the statute enacted.6 formed at or must have been before only unlaw criminalized Herrera-Montes unlawfully remaining in. moment “remaining in” not a ful and was Judge great respect, With statute, in Herrerar-Montes opinion Higginbotham’s opinion in concurring the intent said case, mounting present defense is an element upon premises, Herrera-Montes, opinion he authored generic burglary, must exist “at the inquiry the focus obscures remaining in.”7 This burglary requires with re “generic” what of intent timing aspect of the formation timing of It spect goes intent. not found regard in” is particular saying that State’s without Taylor. controlling.9 is not said in Herrera-Montes should have We Instead, reasoned .Court of conviction criminal that when generic approach to as entry, to com the intent izes of certaining the an offense elements on must exist mit a crime of of the the of takes account elements not have entry. time of We should among majori shared common fense an opinion as to when such expressed Supreme ty of formulations.10 The States’ “remaining intent must be formed when in subsequent has opin Court confirmed burglary Tayl in” Both offense at issue. generic ions that to determine offense’s burglary generic of or’ s definition elements, the criminal codes and statutes burglary statutes majority the States’ be of the states must examined to see “remaining in” in include unlawful However, appear elements in “most” of “remaining which defining burglary.8 Judge Higginbotham’s concurring diverge in” as to when them.11 statutes 598, 2143, ("Congress 109 id. at 110 S.Ct. 2143 U.S. 110 S.Ct. See 495 (1990) (“We generic per- ‘burglary’ the sense in L.Ed.2d 607 conclude that a meant burglary pur- now the criminal which the term is used in son has been convicted for States.”); 924(e) if he con- also id. poses of a codes most see enhancement crime, (“[T]he regardless exact 1984 definition bur- victed of its 110 S.Ct. 2143 label, having Congress, glary shows least the basic elements at that into, time, 'generic' unprivileged or re- had mind a modern view of of unlawful in, structure, corresponding maining burglary, roughly in- to the defini- crime.”). burglary majority tions of States' tent to commit a codes.”). criminal 6. See Part III. infra See, Duenas-Alvarez, e.g., 549 Gonzales Herrera-Montes, 391-92. F.3d at 195-96, U.S. S.Ct. (2007) (listing States’ statutes to L.Ed.2d 8. See III and IV. Parts infra theft); generic meaning confirm Schei States, Inc., See, Women, Organization e.g., 495 U.S. Taylor v. United dler National 393, 410, 575, 592, 537 U.S. S.Ct. L.Ed.2d ("In 924(e) (1990) ("We Taylor, 'burglary' in we con think that L.Ed.2d including ‘burglary’ indepen- as a must have some uniform definition cluded violent 924(e)’s sentencing employed en dent of the labels various crime in U.S.C. codes.”). possessin provision for hancement felons' States’ criminal Herrera-Montes, opinion, lawfully and the dicta in building. remained There is burglary advocate definition of commit no weight indicátion that the of authority by unlawfully remaining in ted that has supported one view over the other. The adopted by approximately been five generic that, definition of burglary just statutes,12 is no state there indication generic. Generic burglary does not specify that at the time the Court set when intent to commit a generic burglary forth the elements of in premises must be formed. Taylor, most States enacted a had defini There is a split among the Circuit congruent

tion con Courts as to whether re- curring opinion’s definition. Judge quires intent to commit a crime to be HigginbothaM’s decidedly formulation is formed at or before the time majority view presence on property first becomes must be formed the commission during unlawful.14 The Fifth Circuit join should burglary by unlawfully remaining in a Fourth15 Ninth16 Circuits in con- building. cluding that permits when a statute bur- do not I advocate that glary to be while unlawfully- committed state, burglary “all” include building, in a intent to commit a or that no state burglary should crime while within can be formed before out,” as Judge Higginbotham’s “left concur trespass initially after the occurs. opinion ring advocate only asserts.13 I gener this court elements of adhere

ic expressed in I decided, Taylor. When it ap Ascertaining whether a pears required that some in qualifies as a tent crime while “crime of violence” under in requires Guidelines of application be formulat the “cat- trespass, egorical approach,” ed or before of the time while which federal sen- permitted other States tencing such intent to and courts appellate be have wrestled during formed many un- years.17 present defendant for case arises g firearms, Sentencing ‘burglary’ Congress meant in 'the U.S. 17. See Guidelines- Manual C, (U.S. 802, Sentencing app. in amend. sense the term is now at 155 used ” (quot criminal codes of most States.' Comm’n 598, First, 2143)). Taylor, signif has 495 U.S. at received Commission years icant comment several over from ‘categori courts and that the stakeholders 12. See Part IV. Infra approach’ par cal used determine the ticular level of enhancement under at p. See ante existing guideline overly complex and often leads and to liti resource-intensive gation 14. See Part V. infra uncertainty. existing guideline’s single specific offense charac Bonilla, 188, 15. See United States v. 687 F.3d provides teristic of be enhancements (4th 192-93 Cir. levels, 4 levels on tween based nature of most a defendant’s serious con Reina-Rodriguez, See United viction that before the occurred (9th 2006), Cir. ‘deported’ 'unlawfully F.3d overruled was or remained in States,’ Grisel, grounds by on other States v. Determining United the United whether a (9th 2007) (citing predicate qualifies 488 F.3d partic conviction for a States, requires appli United 495 U.S. 110 S.Ct. ular level enhancement of (1990)). categorical approach 109 L.Ed.2d 607 cation of the to the (2) or Trespass permanent in a tem- of of 2L1.2

under version Guide- any person of porary habitation when effect in when lines was in June any likely or person present of- Bernel-Aveja base was sentenced. His present, purpose of to commit in by 12 fense level was increased because any misdemeanor that habitation Ohio conviction for offense; a theft is not “crime court determined was a the district time, of At violence.” Guidelines Trespass permanent in a tem- dwelling” “burglary of included any porary person of habitation of “crime violence.”18 likely any person is to be present present. estab- judgment conviction of Bernel-Aveja pleaded guilty lishes. .(C) third of degree, a violation this section is Whoever violates 2911.12.19He guilty, burglary.

Ohio Revised Code section A violation divi- (A)(1) imprison- years aggra- was sentenced sion this section is two an ment, suspended, proba- two.years felony degree. A of the second vated tion; however, (A)(2) probation his was revoked of this sec- violation division receiving for time degree. credit tion is the third A felony of served, days, (A)(3) .to he sentenced serve of this was violation of sec- division degree.20 prison. tion is felony the fourth notes, Bernel-Aveja “apparent” As Bernel-Aveja committed the When he was subsection convicted offense, section 2911.12 of the Ohio judg- Ohio section 2911.12 because part: provided pertinent of- reflected his ment (A) force, stealth, person, by No or de- A degree felony. fense a third following: any do ception, shall trespass” under Ohio commits “criminal she, (1)Trespass occupied privilege “without law when structure therein, so; purpose knowingly ... with enter[s] remain[s] commit' do any of another.”21 felony; theft offense or land murder, penal manslaughter, kidnap- underlying the local convi law: -forcible, States, assault, c ping, aggravated generally Taylor sex of- tion. consent, (including where fenses U.S. 110 S.Ct. , given legally or is not conduct is not val- (establishing L.Ed.2d 607 cate the id, consent gorical such as where to the conduct approach). categori of Instead the coerced), involuntary, incompetent, or approach, adopts cal the amendment minor, rape, of a statutory sexual abuse simpler sentence-imposed for much model extortion, arson, robbery, ex- extortionate determining applicability predicate of credit, burglary dwelling, of tension of sentencing convictions. The level of the federal, state, any or under other offense gener prior for a enhancement or local law that has an element length ally will be determined of use, use, attempted or use threatened of -imposed prior for of sentence physical against person force of an- fense, type by the of offense other. which the had been convicted. (West 1990) 19. Rev. Code Ohio Sentencing U.S. Guidelines Manual 18. 1, 1996). (amended July (U.S, 2L1.2(b)(1)(A) n.l(B)(iii) cmt. Sentenc- ing Comm'n Id. 20. fol- any 'Crime of means violence’ state, 2911.21(A)(1). federal, lowing or offenses under Guidelines,23 incorporating After the elements of To determine whether a 2911.12, trespass” “criminal into section “burglary,” conviction constitutes courts the Ohio pro- issue categorical approach utilize the set in forth 2 4 vides: Taylor,

(A) force, stealth, or person, No de- In Taylor, the Court construed ception, shall ... Congress that ACCA25 and held in- so, privilege to do know- [without “burglary” that tended the term legisla- or remain on ingly enter tion to “generic” mean the crime of burgla- of in permanent tempo- or another] ry,26 analysis, After extensive Court rary any person habitation of when “[although concluded that for- exact, any present-or person likely to be vary, generic, contemporary mulations present, to commit in purpose meaning contains at least the any the habitation misdemeanor that following elements; or unprivi- an unlawful is not a theft offense. leged into, in, remaining or a build-

II structure, with intent to other com- mit a crime.”27 The Court observed The definition of “crime violence” “burglary” California offense defined § 2L1.2 of Guidelines included “so as to broadly shoplifting include “burglary dwelling” anas enumerated of goods theft from a ‘locked’ but unoccu- offense, “burglary” but was not defined.22 pied automobile” would not ge- constitute however, held, We with exceptions burglary.28 neric The Court here, confirmed not relevant that “we no see reason subsequent separate, parallel to create á com decisions.that an.offense federal ” entering ... ‘burglary’ mon-law definition for [law- “criminalized location fully] “Taylor’s with the steal” ‘burglary’ definition of controls would “generic defining ‘burglary’ part constitute ‘bur because” it ” glary dwelling’ of a “encompass[] under 2L1.2 the would shoplifting.”29 mere U.S, Sentencing U.S, Taylor, 2L1.2 Guidelines Manual Sentencing n.l(l)(B)(iii) (U.S, ("We cmt. Congress by ‘burgla- believe that Comm’n meant ry’ sense which term is now States,’’). used criminal most codes Ortega-Gonzaga, United F.3d (5th 2007) (referring Taylor Cir. id, Id.; see 110 S.Ct. 2143 also States, 110 S.Ct. U.S. (“We conclude a- has been con (1990), recognizing L.Ed.2d ,if he is convicted of victed Murillo-Lopez, in United States v. F.3d crime, regardless its exact definitions (5th 2006), sense” to "ma[de] label, having the basic elements of unlawful ‘burglary “extend[] the definition of a into, in, unprivileged entry dwelling’ Guidelines to include structure, tents, with intent things Court in like crime.”), defining ‘burglary’ implicitly excluded given Murillo-Lopez the court dwelling' part to called define ‘of a of 28. Id. 110 S.Ct. 2143. ”). 'burglary dwelling' of a — States, U.S. —, 29. v. Mathis United Hernandez-Hernandez, 24. See United States 2243, 2248-49, (2016) S.Ct. L.Ed.2d 212 (5th 2016) (citing F.3d — States, (citing Descamps U.S. Taylor, U.S. at —, 2276, 2283-84, 186 133 S.Ct. L.Ed.2d (2013)). 924(e). 25. U.S.C. convict under jury apparently could though commit Accordingly, intent jurors of Ohio statute some found necessary element crime is a privileged while others of was not burglary, an element there remaining privi in was not found that presence about unlawfulness case, in building, leged. in our or defendant dwelling. nor Supreme Court this Neither called to examine upon its court has been Taylor progeny from

It clear only requisite intent commit a if a unlawful when statute criminalized be formed if a statute criminal- building with crime must unprivileged into or into, in, crime, remaining or “entry such izes intent commit another then structure, with intent to commit a “generic burglary” or other offense would be an “burglary.” If the words Taylor’s definition crime.”32 However, Taylor are con- subsequent nor definition of neither (“an unprivileged entry or occa- Supreme Court decisions had sulted when, into, in, or other pur- definitively sion decide structure, with intent to commit a generic burglary, intent must be poses crime”33), possibilities as if the “unlawful or there are several offense was formed might ... ... A unprivileged remaining in a build- to when intent be formed. defen- structure, form the ing might to com- dant other with intent (1) lawfully premises: crime on the before crime.”30 mit (2) (3) entering, entering, lawfully Bernel-Aveja’s Ohio conviction under (4) entering, unlawfully after unlaw- before priv law included elements “without entering, unlawfully fully before “re- entering] ... ilege knowingly do so in,” “re- maining while pur in a ... remaining]” “habitation with maining in.” mis pose any the habitation con- Supreme not a Court of Ohio has demeanor theft offense.”31 statutes34 to does not contend that strued one Ohio’s Government may pur- “a forth two mean that form Ohio statute sets crimes, any separate having pose one as an to commit a criminal offense element during trespass.”35 of a “enter[ingj” privi point the habitation the course without so, agree an The in this lege having parties and the other case do the intent to commit element the habitation construction when in]” applies equally privilege to do so. The Ohio con be formed without implicates requisite another Ohio bur- the “remain accordingly viction statute, Bernel-Aveja for aspect glary Court’s under which appear therefore generic burglary mulation of a was convicted.36It would because Fontes, Taylor, 87 Ohio 495 U.S. at 110 S.Ct. 2143. St.3d State (2000). N.E.2d (West 1990) 31. Ohio Rev. Code Ann. 1996), (amended July id. Compare Ohio Rev. Code Ann. 2911.21(A)(1). 2911.11(A)(1) (West Supp. & force, stealth, ("No deception, person, by Taylor, 495 U.S. at 110 S.Ct. 2143. trespass occupied shall in an structure ... than accom- when another other purpose plice present, the offender the structure criminal offense....”) 2911.11(A) (West 34. Ohio Rev. Ohio Rev. Code Ann. 1990) ("No 2016). 2911.12(A)(2) (West person, by § Supp. 2006 & criminal, Ohio statute at issue en- an express would armed career defi others, patterns, among compass fact nition of burglary was deleted omitted which the entered from the Supreme statute.40 The Court dwelling did not form the intent three drew “observations”41 from its anal commit a crime on the premises until after ysis of this history. entry, that unlawful or formed the intent First, the Supreme. Court concluded lawfully entering but while unlawful- from the statutory 1984 and 1986 defini- ly “remaining'in.” history tions legislative and the Though Court’s decision subsequent 1986 amendment effectuated Taylor' question does answer the by the Career Criminals Act of 1986 that

when commit a crime must be (as “Congress singled out op- formed when posed to other frequently prop- committed conviction, the basis of a the Court’s theft) erty crimes larceny such as auto analysis of how why upon it arrived its for inclusion because of its inherent of burglary provides potential for to persons.”42 harm guidance. began some inter Court its y reasoned, Court fact “[t]he offend- pretive process considering lan b er enters a to commit a crime 924(e), § guage of originally enacted often possibility creates the of a violent 1984, later, years and two when it was confrontation between offender and an original iteration, in 1986.37In amended its caretaker, or occupant, other some “burglary” “any the statute defined fel investigate.”43 comes who The Court consisting entering ony “Congress also apparently concluded that surreptitiously within thought burglaries that all enough serious property of another with intent to engage punishable be imprisonment for constituting conduct a Federal or State year category more than a constituted a offense.”38 The replaced 1986 amendment this potential crimes shared for vio- “any felony” in “any that definition with likely lence and that were to be committed punishable by imprison á term of by career criminals.”44 exceeding The Court rea- year.”39 ment one Five months soned, later, amended, any never was proposal “[t]here the statute was again though predicate limit “burglary” predi special was retained as a offense to some cate offense enhancing burglaries sentence subclass might espe- force, stealth, 581, 1803, deception, § shall ... Tres- at (quoting Id. 110 S.Ct. 2143 1986)). pass permanent temporary (repealed in a habitation Stat. any person any person present likely 582, present, pmpose (quoting to be id. 110 S.Ct. 2143 104, habitation misdemeanor that is 100 Stat. at offense."); Evett, a theft State see also No. 14CA0008-M, 4069588, (Ohio 2015 WL at *3 (citing 40. See id. Career Criminals Amend- 2015) 99-570, App. 1402, (applying Ct. Fontes to a convic- ment Act of Pub. L. 2911.12(A)(1)). 3207-39). tion under 100 Stat. States, 37. Taylor 110 S.Ct. 2143. Id. v. United 495 U.S. 581— 110 S.Ct. L.Ed.2d (citing Armed Career Criminal Act Id. 98-473, (re Pub. L. 398 Stat. 2185 pealed Owners’ Firearms Protec Act, 99-308, tion Pub. L. Stat. (1986)). 44. Id. that ... we draw reject definition

dally dangerous, as the such those where armed, is here.”50 or the occu- no such inference offender night.”45 or the crime pied, occurs rejected of Supreme Court use Second, that “the the Court concluded of as the common-law definition provision always has embod enhancement 924(e) in for of term definition that , designa approach to the categorical ied a have reasons. <.. several “Most The Court predicate tion. of offenses.”46 definition to expanded [common-law] that “Congress that intended reasoned ‘breaking,’ struc- include without triggered by provision be enhancement dwellings, com- other than offenses tures elements, specified having certain crimes daytime, in entry with mitted happened crimes to be labeled that felony, than crime other ” 47 ‘robbery’ or ‘burglary.’ observed that these etc.”51 The Court “statutory development[s] re- [have] said, “Third,” Supreme “the Court in has little a modern sulted that shows 1984 definition its common-law ancestor common with time, that Congress, at least at had and except burglary,” for title of that ‘generic’ burglary, view of mind modern distinctions arcane. “[t]he embedded corresponding to the roughly definitions little common-law definitions rel- majority of the crimi burglary in a States’ to modern law enforcement con- evance deduced that “[i]n nal codes.”48 Court cerns.” definition, Congress both adopting this invoking from the ar prevented offenders history considering After of the common-law defi cane technicalities 924(e), adoption rejecting sentence- nition evade the of burglary, common-law definition of provision, protected enhancement “Congress Court that meant concluded having the unfairness of en fenders from ‘burglary’ sense in which upon the label em depend hancement term used the criminal codes now ployed by the State conviction.”49 53It ge then most States.” articulated definition, quoting W. LaFave & A. then neric Court concluded Law nothing Scott’s Substantive history “there is to show .Criminal that-modern, “gener Congress replace propositions in 1986 to intended require unprivi ‘generic’ ally place something entirely leged” “typically Al describe the different. ” ‘structure,’ though preexisting ‘building’ of a “[t]he the omission defi Congress’ prevailing nition in'the modern codes term often indicates view 45. Id. 49. Id. ' Id.

46. 50. 110 S.Ct. Id. 2143. — Id.; States, Descamps United U.S. 47. cf. —, Id. at 133 S.Ct 186 L.Ed.2d 438 (2013) ("Congress ACCA] ... meant [the switch, directing function as an on-off qualify predicate of crime would none.”). fense in cases all Id. at 110 S.Ct. 2143. Taylor, 495 U.S. 110 S.Ct. 2143 (1990). an to commit offense will intent do.”54 III generic also The Court stated its defi that generic If the burglary definition of “approximates adopted by nition that Taylor require does not that the intent to Code,”55 of Penal drafters the Model a crime be before or at formulated provided: “A guilty of person bur is initially of remaining the time in building a building if he or glary occupied enters then the unlawfully, 1996 Ohio has statute structure, or separately or secured occu each the elements of generic burglary thereof, pied portion purpose com Taylor, formulated in modified therein, mit unless the Guideline’s inclusion “bur- offense of open public are the time or at glary dwelling.”.Those elements are or privileged actor is licensed enter.” into, “an unprivileged entry unlawful or or ge The Court stated that its additionally in, remaining a [dwelling60],with intent meaning practically neric “is commit a question crime.”61 The raised that, identical to the 1984 definition appeal offense what from omitted the enhancement requires regarding timing, of provision.”57 The Court reiterated to commit a crime. though was omitted in the definition amendments, no simply “there Supreme Because the Court concluded plausible Congress alternative could no there was indication have had mind.”58 reit The Court also Congress “that to replace” intended Congress erated “did wish to ACCA’s statutory of specify exact that an formulation “generic” burglary,62 and because the Su- meet,” fense and concluded that “a preme Court its observed that def- .., has been convicted inition of burglary practically “is identical crime, of any regardless he is convicted definition,”63 to the [ACCA’s] it is label, of its exact definition or having compare instructive the offense defined unprivileged basic elements of statute, 2911.12, in the Ohio section into, in, remaining the ACCA’s 1984 definition. structure, with intent crime.”59 “any The ACCA defined felony entering slate, consisting

If writing we were clean we shrreptitiously consider the Ohio would within of another with light teachings property engage at issue these presented constituting Court when with a in conduct a Federal or State Bernal-Aveja’s Ohio in” statute. offense.”64 offense Scorr, Sentencing (quoting 54. Id. LaFave & 60. U.S. 2L1.2 W. A. Substan- Guidelines Manual (e) (1986)). (U.S. Sentencing 8.13(a), n.1(B)(iii) (c), cmt. tive Criminal Law Comm'n 2014). 55. Id. at n.8. Taylor, 495 U.S. S.Ct. at 2143. 61. (Am. 56. Penal Code Model Law. Inst. 1980). at 110 S.Ct. 2143. Id. 62. Taylor, 495 U.S. 110 S.Ct. Id. 2143.. Id. Act of 64. Armed Career Criminal Pub. (repealed 98-473, § Stat. -2185 No. L. 110 S.Ct. 2143. 19 only that “remain- was com- treatise concluded felony. Ohio offense

was a stealth, force, many adopted by “by been mitted when defendant in” statutes had privilege course, know- deception” means, and without but that “[t]his states in a habitation ingly entered or remained requisite intent to commit a crime that the purpose to commit of any person “with only exist at within need It any misdemeanor.”65 habitation within.”68 remained accomplish seem that use force would list- 1986 version of LaFave’s treatise The at least as would be burglary the crime adopted had twenty-four states that ed than, as, culpable more not culpable “remaining burglary in” statutes.69 Ohio entering into surreptitiously them, it is among not clear was is substan- property. on Ohio offense The in issue Ohio tially defini- the same as ACCA’s “remaining in” case alterna- present has regard tion. to when intent was With committing burglary.70 tive means matter, formed, it grammatical would of LaFave’s recent edition treatise most phrase “with appear that the 1984 ACCA’s adopted states that have twenty-nine lists “remaining engage” modify intent to would statutes,71 “remaining though it like- in” such surreptitiously within” to list the Ohio stat- wise failed entry while remain- could formed explained, Professor LaFave re- ute. ing in. gard adoption “remaining to the Taylor Court concluded states, by many so ACCA, present version of the that in the statutory expansion [t]his common by ‘burglary’ meant “Congress great the definition of makes used in the which the term now sense A lawful does foreclose sense. States,”66 most and criminal codes of the, kind of intrusion de- it to consider therefore is also instructive reach, as is signed illustrated burglary. The how “most states” defined case a bank customer who hides cited the 1986 edition decision bank takes until closes and then on substantive LaFave’s treatise Professor authoritative,67 Moreover, money. expan- criminal law as the bank’s 13a-7-5; 11.46.300; 1990) (West § § 65. Ohio Rev. Code Ann. 2911.12 § Rev. Alaska Stat. Ariz. (amended 1, 1996). 13-1506; July 5-39- § § Ann. Ark. Stat. Code Ann. 201; 18-4-202; § Colo. Rev. Stat. Ann. Conn. Taylor, S.Ct. U.S. 53a-101; Tit. § Stat. Del. Code Ann. Gen. Ann. 824; 810.02; II, § n.8, 598 & § Fla. Stat. Ga. Code Id. Ann. 16-7-1; 708-810; Stat, § § Haw. Rev. Ann. A, Scott, & 68. W. Substantive Criminal Lafave 5/19-1; Comp. Ann, Iowa III. Stat. Ann. Code 8.13(b) (1986) . § Law Ky. 713.1; 21-5807; § § Ann. Rev. ICan. Stat. 511.020; tit. § Me. Stat. Ann. Rev. Stat. Ann. n.44. 17-A, 401; 569.160; Ann, § § Mo. Stat. Mont. 2911.21(A)(1) § 70. See Ohio Rev. Code Ann. 45-6-204; § N.H. Rev. Stat. Ann. Ann. Code (West 1990) (amended July (provid- 2c:18-2; 635.1; § § N.D. Cent. N.J. Stat. Ann. that a commits "criminal tres- 12.1-22-02; 164.215; § § Or. Rev. Stat. Code she, pass” under Ohio law when "without 22-32-1; S.D. § Codified Tenn. Code Ann. Laws so, privilege [kjnowingly to do enterfs] 30.02; 39-14-402;- § § Penal Ann. Tex. Code premises land or remain[s] anoth- 76-6-202; Tit. § Utah Code Ann. Vt. Stat. Ann. er”). 1201; 18.2-89; § § Va. Code Ann. Wash. 9a.52.020; Wyo. 6-3- 71. 3 W. Rev. Code Stat. LaFave, Law Substantive Criminal ed.) 21.1(b) (2d (2016) (citing n.47 Ala. Code argument “ought sion forecloses defen- fered of conduct that not be treated burglary” “where visitor in found then closed that one’s dant home becomes in an argument involved they he had entered -earlier when were host, to punch with his threatens him open.72 leave, the nose is asked to and then At one other academic has conclud least after he does not leave continues his Penal ed that since the the Model threats.”76 treatise listed Penal Model requirement promulgated, “the Code was Code Jersey 221.1 Florida New minority ap has become the a, examples statutes as limita- such proach. twenty-nine jurisdictions At least tion.77 Model Penal did statutory entry require have modified the in,”78 include so it differs from ‘remaining unlawfully’ ment include that, the twenty-four according states ”73 commentator, ‘remaining.’ This Profes treatise, adopted LaFave’s have “remain- Anderson, sor that Helen concluded ing in” burglary Jersey statutes. New ‘remaining’ the “where statute includes by statute cited Professor does LaFave entry, an alternative to criminal intent the appear, necessarily, provide not to that the may any formed at time while the de be form defendant must the intent to commit premises fendant remains oh the and need surrepti- crime when he remains initially not of have been formed the time en tiously in a structure.79 try.” Similarly, Anderson Professor observed Professor LaFave’s 1986 ex- treatise more recently that “a consensual visit pressed in” the view that stat- ugly might turns prosecuted be bur- as a not utes should “cover certain other situa- glary” “re- includes tions which remaining the unlawful maining in” as an alternative to be- ought not be as burglary,” treated cause “the criminal intent formed be “it is remaining- therefore best to limit the any time the while defendant remains within alternative to where conduct is premises on the and need have been surreptitiously.”75 example entry.”80 done An of- formed at the time of This out- of, therein, purpose 72. W. LaFave & A. with to commit a crime Scott, Substantive Criminal 8.13(b) (1986). § open unless the are at time to Law public privi or the or actor is licensed Anderson, 73. Helen A. From in the the Thief enter.”). leged to Night Stayed Long: the Guest Too to Who Burglary in the Evolution Shadow of of N.J, (West 1981), 2C:18-2 Ann. Stat. Law, Common 45 Ind. L. Rev. 645 & provided; (2012). n.113 if, person guilty pur- A of Id. at 646. pose offense therein he: structure, separately or Enters a 75. W. LaFave A. Scott, & Criminal Substantive thereof, occupied or portion un- secured 8.13(b) (1986). Law open to less the structure was at public or the licensed or actor 76. Id. n.47. enter; privileged to (2) Surreptitiously remains a structure (citing Id. n.48 221.1 Model Penal Code occupied por- separately secured 810.02; 1980); (Am. Law Inst. Fla. Stat. knowing that he is li- tion thereof 2C:18-2). N.J. Stat. Ann. privileged do so. censed or to (Am. Model Penal Code Law Anderson, 1980) ("A 80. Helen From the guilty A. of Thief Inst. structure, Stayed Night occupied Long: Guest Who Too enters occupied Burglary separately portion secured or there Evolution in the Shadow of of Judge Higginbotham’s concurring opin apparently permissible be un- come would ‘remaining in’ twenty- ion asserts “the act twenty-two der statutes time, point in and to occurs at a discrete jurisdictions by listed Professor nine Anderson, since, perpetrator according burglary, constitute Professor further crime at analysis, only have seven states hav- intended Anderson’s otherwise, required point.”83 To hold “remaining in” that discrete ing statutes opinion Or “strains common “surreptitious” posits, be “concealed,”81 sense,”84 event, purpose the seven “confound[] But in would sentencing sought including “surreptitious” statutes evenhanded state Sentencing related stat do not Guidelines and exceptions or “concealed” necessari- utes,” require form mandate ly “fouls Taylor, As to the entry. commit a crime mandate itself.”85 concurring “remain opinion’s elements conclusion that the A offense in” not elements that are requires that intent commit a the criminal most were found “in codes of entry appears exist the time therefore, those States”86 ele step twenty-nine “re- out are not the elements ments maining listed Professor regard burglary. to evenhanded sen With Anderson, twenty-four “remaining and the sense, tencing common the con at by in” statutes Professor LaFave listed rationale, curring opinion’s who in Taylor, the time the well decision himself lawfully, but secrets with enters recently as the five other statutes more committing during the intent of theft If, in as the identified LaFave’s treatise. night sentencing enhance would receive Taylor, Supreme Court “bur- concluded ment,, enhancement would not but such an is glary” generic “the sense in which the apply unlawfully to a person who breaks is term now used in the criminal [in 1990] dwelling into and he thinks is enters a States,”82 generic of most then bur- codes an unoccupied “party,” to sees that occu require glary does intent to commit a bedroom, pant asleep in her and sexually entry if crime at the time of the statute assaults her. “remaining In- is a in” statute. prerogative “re- It is not of federal tent crime formed while maining in” to to judgments suffices. value courts make what Rev, 629, Law, struggle during 45 Ind. 646 & over L. a firearm Common (2012) Leonard, People gouged apartment eyes were (citing owner’s out n.122 was their sockets and his ear bitten off A.D.3d 921 N.Y.S.2d defendant)). (holding, of a a case in which the father was child child mother of the admitted 645-46, n.113, visit, & for convic nn.114 116.

for a that” defendant's 81. [a]s degree, tion in the second States, People required present were es 82. 495 U.S. v. United evidence (1990). that, tablishing 109 L.Ed.2d 607 admitted S.Ct. defendant was home, into there mother’s remained at p. See 215. a crime 83. ante with dangerous used use or threatened to (see 140.25[1][c])”) p. Penal Law ante at instrument Morton, App.3d Ohio State 730, 734, p. (affirming See ante N.E.2d 737-38 conviction of who admitted apartment by occupant Taylor, 86. See 495 U.S. when asked leave, engaged physical in a altercation and have. It offense reflects that States that elements should number obligation have, is the federal courts falling ascer- generally offenses within all of tain from the States’ statutes the (though necessarily generic) broad cat- expressed are in most of elements egory of “burglary” define such part pro- those States’ statutes as only “entry” offense with reference distilling cess of elements of slightly onto premises minority. offense.87 The Court stated Other States’ criminal statutes have both Taylor that it had undertaken such an unlawful “remaining and unlawful analysis, respect burglary, conclud- in” in burglary, and some offense defined “the “remaining in” States consider to be a generic sense in which the term now separate offense. used in criminal codes most An examination of the Statés’ It States.”88 cannot be said that most of offenses solely that define that crime criminal States’ defined “remain- codes “entry” reference unlawful reflects that Judge Higginbotham’s ing in” burglary as a majority require of these statutes concurring opinion insists it de- to commit a crime trespass other than opinion’s fined. Accordingly, that formula- entry. the time unlawful generic “remaining burglary. tion is not in” These include:

IV (West Ind. Code 35-43-2-1 2016)89 & Supp. The commentators’ conclusions that a majority adopted had States unlaw- (2016)90 14:62 La. Stat. Ann. ful' statutes and (Lex- Ann., CRiM. Law Md. Code having offenses were 2012 & Supp. isNexis 2016)91 minority remain with re- accurate Mass. Gen. Laws ch. 266, § (2008)92 14 spect burglary to current-day offenses. An Comp. statutes, analysis the States’ current 750.110; § § MiCH. 750.110a Laws them, 2016)93 construing (2004 and state court decisions Supp. & Duenas-Alvarez, (1) requires 87. See proof v. 549 U.S. tíme.’ It that a defendant Gonzales 190, 815, 183, (2) another; dwelling 127 S.Ct. 166 L.Ed.2d 683 broke into and (2007). did so with intent to commit or a theft (citations omitted). violence.”) crime of 598, Taylor, 495 U.S. 110 S.Ct. 2143. Negron, 92. See v. 462 Mass. Commonwealth State, 208, 681 Richards v. N.E.2d 212 See 102, 99, (2012) (“The 967 N.E.2d 105 ele- (Ind. 1997) (explaining that “the had to State (1) aggravated burglary ments of are: the de- prove that when entered [the defendant] dwelling fendant broke and entered into building rape”). he had the commit intent to another; (2) breaking entering of. ’and oc- (3) night; breaking curred at the time Jones, 1323, 90. See State v. 426 So.2d 1325 entering and the defendant intended to com- 1983) (La, (“The had the felony....”). mit a specific felony intent to a commit either aor entry, the time his theft unauthorized . Cornell, 335, People 93 See 466 Mich. v. 646 simple both burglary crimes and 127, ("The (2002) 141 N.W.2d elements of burglary.”). attempted simple breaking entering intent to and with commit State, 646, (1) Md.App. larceny See Walls v. 228 into 142 are: the defendant broke a 631, (Md. 2016) (2) App. Spec. entered A.3d 652 Ct. the defendant the build building, statutory' ing, ("Maryland’s breaking offense of and at the time of and degree entering, the first to common law to commit 'akin bur- the defendant intended a therein,”). glary, night- larceny of in without element 232 20:18-2(1) (West (West 2009)94 N.J. 609.582 Stat. Ann. Stat.

Minn. 2015)98 (2014)95 97-17-28 Code. Ann. Miss. (2004)99 § 30-16-3 N.M. Stat. Ann. (2008)96 §St. (2015)100 Neb. Rev. § 14-51 N.C. Gen. Stat. 21, (2015)101 § 1431 tit. Okla. Stat. 205.060; § Rev. Nev. Stat. 3502 18 and Cons. Stat. Ann. Pa. Stat. (2015)97 2015)102 (West structure, facility, 94. The statute a Enters a research provides; “Whoever enters portion occupied separately with a secured without consent crime, or enters a without unless structure was at a thereof commit open public while and commits or the actor is consent time enter; accomplice, building, directly or either as an privileged to .... licensed or (em- degree.” 405, Jijon, N.J.Super. commits first State See also v. Davis, added). phasis (1993) (“It See also v. State is now well 624 A.2d (Minn. 2015) (agreeing that N.W.2d complete upon established offense.”), defendant did not commit the un- when the committing purpose an crime, jury derlying instruction was errone- 'd, A.2d 135 N.J. aff “permitted jury to find him ous (1994). felony jury guilty of murder if the determined the theft that he formed an Jennings, N.M. State See entering building, if he even did (N.M. 1984) ("Burgla App. Ct. P.2d after actually theft”), commit requires specific ry intent crime. It is a entry with the intent to commit unauthorized State, 95. See So.2d Cortez felony or An any theft therein.... unautho (Miss. (“The App. seldom has Ct. State presence a structure is from rized evidence positive expressly testimony show- direct and reasonably jury infer the neces could specific intent of an intruder at the felony theft sary intent there dwelling he breaks into omitted). (citations in.”) house; however, testimony such essen- to establish the intent tial 100. Montgomery, State 341 N.C. crime.”). (1995) ("If at the time of 461 S.E.2d 96. The statute person provides: breaking entering “A commits does not therein, maliciously, person willfully, possess felony such commit a the intent to forcibly real breaks enters estate properly be convicted misde- any improvements erected thereon breaking entering, a lesser includ- meanor any felony or with intent to commit intent to first-degree burglary.”). ed offense property any See also State v. steal value.” Carter, 407, 35, 205 Neb. N.W.2d 36 288 State, 263, 101. See Rowland v. P.2d 265- 817 (1980) ("The burglary complete crime of is 1991) ("To (Okla. App. warrant con- 66 Crim. breaking entering is when there with a Degree Burglary in the viction for First instance, steal.”). intent, requisite in this to necessary to have the [defendant] is for the to commit crime at the time his intent Though require 205.060 does not section entry dwelling.”). unlawful entry, provides unlawful section 205.065 an for an inference of felonious intent at the time Russell, 102. See Commonwealth v. 313 Pa.Su- entry entry Sheriff, is unlawful. See 316, (“In 534, (1983) per. 460 321 order A.2d Stevens, 316, Cty. 630 Clark v. 97 Nev. P.2d burglary, to be convicted of the defendant 256, ("The (1981) burglary 257 offense is have formed intent commit a complete the house or other is residence, he the victim's crime when entered specific with the intent commit entered he must be not after entered.... therein.”). larceny any felony or contemporaneous with the intent 2015): (West § omitted). See therein.”) (citation N.J. 2C:18-2 recently A Stat. Ann. if, guilty pur- revision of the statute does not person A is enacted alter Legis. Pa. requirement. See 2016 pose to commit an offense therein or the intent there- (S.B. 1062). Serv. Act 2016-158 on he:

233 statutes, an examination of all state 11 (2002)103 11-8-1 § even R.I. Gen. Laws might those that be over-inclusive (2015)104 § 16-11-812 Ann. S.C. Code analysis, final upon arrive “generic” § 39-14-402(a)(i) Code Ann. Tenn. of an definition offense. 30.02(a)(1) § Penal Ann. Tex. A few state statutes define a 2011)105 (West as involving only offense “entry” with in- (West 2005)106 § Wis. 943.10 Stat. tent to commit a crime at the of entry of the foregoing Some offenses or the entry, commission of a crime after “generic” burglary they constitute because they but do not require or un- overly type are inclusive as to the of prem- privileged, entry. They do not therefore generic burglary may ises on which a oc- appear include burglary. Such example, For cur. the Louisiana offense statutes include: vehicle,107 cited above from includes theft (West 2010)109 § 459 Cal. Penal Code “any and the Nebraska offense includes any real improvements estate erected (2016)110 18-1401 Idaho Code ascertaining thereon.”108 But what (2015)111 Nev. Rev. Stat. requires regarding com- intent to mit a crime (2002)112 would entail 11 R.I. Gen. Laws 11-8-3 Contreras-Cruz, 849, State (2008). See v. 765 A.2d See St. Neb. Rev. (R.I. 2001) (holding provision 852 that this "incorporates the common law States, 109. See 575, v. United 495 U.S. crime,” breaking which "is the enter 591, 2143, L.Ed.2d dwelling-house ing the of another (noting ‘burglary’ that “California defines so nighttime felony with the intent commit a broadly shoplifting as to include and theft of therein,' felony actually whether the com goods unoccupied from a ‘locked’ auto- not.”) Hudson, (quoting mitted State v. mobile”). 649, (1933)). 165 A. R.I. 110. provides: "Every who State, 104. See Pinckney v. 368 S.C. any [enumerated enters intent structure] with (2006) ("Further, S.E.2d is no there any any felony, guilty to commit theft or is requirement that the intent element is satis- burglary.” Rawlings, See State also only by proving fied an intent to commit .the (2015) (burgla Idaho 363 P.3d specific charged crime that is indict- ry requires only "entry with the intent steal aggravating ment circumstance. anything might he finds that desire to only requirement there be appropriate”). entry.”). . crime at the time of State, 105. See Devaughn 749 S.W.2d Stevens, 111. Sheriff, Cty. Clark 97 Nev. (Tex. 1988) (en banc) ("It App. Crim. well (1981) ("The P.2d offense felony settled that the intent commit a complete when the house or exist theft must at the moment of the specific other is entered with the 30.02(a)(1).”). there is no offense under larceny any felony there in.”). State, 412, 106. See Levesque 63 Wis.2d 317, (1974) ("To N.W.2d constitute who, 112. The statute provides: “Every person 943.10(l)(a), burglary crime of under one sec. felony], with to [an intent commit enumerated building must enter without the consent any dwelling apartment enter shall house or person possession. Concurrently with night, any day time of the or with or who entry he must have the intention to steal shall, during daytime, such intent enter felony.”). or commit vessel, building, ship shall other or or (2016). [punished by imprisonment].” § See 14:62 fine and/or La. Stat. Ann. (LexisNexis entry or Some state “unlawful ‘remain- § Code ANN. 61-3-11 W. Va. ” 2014)113 in’ to con- appear have been statutes two strued to forth divisible offenses set burglary A offenses are few other state and, entry charged, only unlawful con- involving “entry” without defined require to intent at unlawful sent, they require do intent setting entry. If treat these statutes we entry. another crime the time commit offenses, they then separate forth should commit a Intent crime be formed analysis logically be included entry, they therefore do after unlawful “entry” appear offenses. These' statutes These generic burglary. not-constitute include: appear include: (West 53a-101 Ann. (West Conn. Gen. Stat. 609.582 Stat. Ann. Minn. 2012)117 2009)114 Comp. Ann, (West 39-14-402(a)(3) Ill. Stat. 5/19-1 Tenn. Code 2003)118 (2014)115 30.02(a)(3) (McKinney N.Y. Penal Law

Tex. Penal 2010)119 (West 2011)116 shall, any person provides: agree on whether entered "If defendant unlawful The statute enter, nighttime, ly unlawfully break enter or remained would have been or shall, daytime, breaking, in the presented or without error had evidence of state house, enter, dwelling (i.e. or an entry break and and unlawful occupied lawful) adjoining or there- outhouse thereto been because the two had another, with, , with intent types burglary recognized conceptually are therein, guilty of he shall be deemed actions); Belton, different State v. 190 Conn. added). (emphasis burglary.” 973, 496, (1983) (explaining A.2d contemplates that "to remain "Whoever enters a provides: 114. The statute legal entry initial which becomes unlawful building with intent to without consent and right, privilege actor’s or the time that the crime, building without commit a or enters a extinguished”). license to remain is consent and a crime while commits directly accomplice, building, as an either or Boose, 471, People Ill.App.3d 118.See (em- degree.” commits in the first (1985) 94 Ill.Dec. 487 N.E.2d added). phasis (overturning a when the defen dant, during who entered a store business person provides: “A commit The statute hours, hours,' asleep, fell awoke and was

s who, without tire effective consent of merchandise,' possession of store building properly owner: Enters illegal entry, charged only explaining felony, attempts commits or theft the offense in that "the statute states the alter or assault.” commits of a native: illegal by illegally building entry or either provides; "A commits 116. The statute .remaining” charges only and when the state if, an offense without the effective consent of by illegal entry, State “the has owner, person: ... enters showing [the burden that Boose entered attempts or habitation and commits building] authority both without with the theft, felony, commit a an assault.” also Boone, steal”); People 217 Ill. S.W,2d State, (Tex. Crim. Rivera v. App.3d 160 Ill.Dec. 577 N.E.2d 1991) (en banc) ("The App. State need neither ("To (1991) a conviction bur sustain burglar’s plead prove nor intent to commit (1) glary, required prove State either felony upon theft the defendant entered without (a)(3)....”). authority and theft, Edwards, felony remained within the Conn.App. 117. See State v. authority building (holding with the intent 524 A.2d that without and theft.”). jury felony to or failure to instruct the it needed to commit a that

235 in”, what present entry remaining But focus case is or “unlawful in- that have either “generic” burglary regarding permit been to requires construed intent to be during trespass formed tent the statute of was when (including deciding after to remaining or remain un- entry unlawful statute. lawfully) or are not considered divisible offenses, An examination of State statutes, jury such not have does iterations, in their least current reflects to to be unanimous as intent was many appear them to do set formed include: offenses,120 forth two divisible i.e. unlawful in, remaining entry there and unlawful and (2008 & Supp. 13A-7-5 Ala. Code “majority” timing

is no view as of.in- 2012)121 tent, though a majority (West Colo. Rev. 18-4-202 Stat. require in- appear offenses do 2013)122 on the tent commit a crime have been formed at or before the time 810.02(l)(b)(2) (West Fla. Stat. Ann. 2016)123 the unlawful occurs. & Supp. 2007 .State Gaines, 358, People unlawfully, 74 N.Y.2d 547 unlawfully 119. See v. enters remains or after 913, N.Y.S.2d 546 N.E.2d 914 entry, building or or lawful unlawful whether, (addressing case in a of unlawful occupied with structure intent to commit jury entry, "the been should have instructed People crime....” also v. therein Bon they must com- find defendant’s intent durant, (Colo. 2012) App. P.3d building mit a crime in existed at the time that, (holding current law "to commit entry,” or such an whether instruction degree person burglary a to “know had .first unnecessary un- was "because 'remains ingly unlawfully, or enter[] unlaw remain[] lawfully' element of the means that statute fully entry, or in a after lawful unlawful may formed such an intent be defen- occupied structure with intent to concluding entry” dant’s unlawful and overruling a crime” commit therein “requires York the New statute that intent to "require[d] proof case that had that the commit crime in the exist at defendant intended a crime inside entry”), time of the unlawful trespasser”) he first became at thé moment (citing Cooper People, 973 v. P.2d 120; —States, U.S. —, See Mathis v. United (Colo. 1999)); (“We agree divi id. with other 2243, 2249-2250, 136 S.Ct. 195 L.Ed.2d 604 of this court that the sions 1999 amendments (2016) (explaining the difference between "di legislatively Cooper respect overruled visible” statutes and means” stat "alternative burglary.”) (citing People the intent element of utes). Oram, 883, 892 (Colo. 2009) App. 217 P.3d v. State, See Gratton v. So.2d ("Intent against anothe r (Ala. 1984) App. jury (observing Crim. that a person property dwelling while can be formed at the instruction be formed either before after the unlawful entry properly in as an refused grounds, entry”), on other P.3d aff’d law, complete statement of current Alabama 2011); Larkins, (Colo. People P.3d explaining adoption "[p]rior that while to the 2004); (Colo. Wartena, App. People Code, of Alabama’s new the statuto Criminal (Colo. 2012)). App. 296 P.3d (§ ry degree crime of first 13- in the 2-40) required that the intent to steal Herron, (Fla. So.3d 123.State felony commit be concurrent á App. (affirming burglary con Ct. Dist. brealdng entering,” under the current though viction even not en had code, may intent to commit a crime "the was, asked to leave and tered concurrent with the refused, only subsequently formed be formed after the while the ac assault, reasoning "[a]lthough unlawfully”). cused remains defendant] [the at first remained apartment suspicion mere provides; "A that [the 122. The commits with a : degree burglary person knowingly boyfriend apartment, occupant]’s was in the first if the 236 (2007 (2011 Supp. Supp. & 16-7-1 &

Ga. Code Kan. Stat. Ann. Ann. 2015)127 2016)124 Ky. Comp. 511.020 (LexisNex (West

720 Ann. Rev. 5/19-1 III. Stat. Stat. 2014)128 2003)125 (2006 2016)126 17-A, § (West 401 Ann. Me. tit. Rev. Stat.

Iowa e kitchen, satisfied the stat opened [he] door returned to the tine closet defendant] once [the requirement; in the he suspicion contemporaneous was and he intent his met remained ute’s fought”). doing apartment remaining so and was over and with citing an with intent to commit assault” 384, State, Ga.App. 268 Williams See v. Yeager & Ronald approval John L. Carlson, L. 833, (2004) (upholding a con 836 601 S.E.2d & 4 Iowa Practice, Criminal Law Procedure both in a case in which defendant viction (1979) ("[W]ill prove have [S]tate 294 to consent, in without entered remained necessary in defendant] formed [the that sup reasoning that evidence "[b]ecause presence place tent at time his jury’s defen ported conclusion that [the unlawful, or will it be became sufficient with a knife in Allen’s assaulted Markell dant] prove some time while he was that at unlaw house, to determine that at it was authorized fully present he the intent ... to com formed point the house or some before he entered [statutory] sug language mit an assault? it, he to com while he remained in intended latter.”)). gests the (internal assault”) quota aggravated mit the (footnote omitted); omitted) id. at tion see also Gutierrez, See 285 Kan. 172 State ("The necessary intent for commission of (2007) ("Remaining P.3d within refers pre ... not be formed at the need building’s presence defendant’s entry, be formed cise moment of but can into, any entering interior after authorized remaining perpetrator while the thereafter unauthorized, accomplished.”); has been id. (internal quotation premises.”) omit on the ("[T]he felony intent to ted) (footnote omitted). remaining entering the unauthorized into Boose, 125. See People Ill.App.3d coexist") point within at some in time must N.E.2d Frierson, Ill.Dec. added); (emphasis Kan. State v. (suggesting in a case in which the defendant (2014) (holding that 319 P.3d charged only illegal entry, con means, unanimity jury as to the enter upheld he been could have been had viction within, by ing or which the "remaining prong charged under the required, is not but state committed statute, even was no evidence that if there present permit sufficient evidence his a store intent to steal from merchandise beyond a jury to each means reasonable find after before he awoke in a closet was formed doubt). closed, observing “[a had that while store ] criminal intent formulated a lawful Commonwealth, McCarthy See theft) (retail satisfy larceny will the offenses of 1993) (Ky. (holding, in a S.W.2d remaining, illegally will not [it] unlawfully en in which the case illegal satisfy the offense being by kicking tered down the door after entry”). argued house denied but he entered wife,” only to his "confer with and did Dible, 267, 270- State v. 538 N.W.2d upon entry, that an assault the defen intend (Iowa ar (rejecting the defendant’s "may be of the crime bur dant convicted gument over and decision remain glary providing jury that he know finds had to intent to formation assault ingly entered with intent contemporaneously, explaining that occur commit a crime he unlaw remained remain that the defendant’s "decision to fully begun comply with when he refused to leave, "even if one crime” believes occupants’] request that [the he appellant requisite not have the did remained intact from the time he returned house, surely be he entered the one could up [the the kitchen until the time he left subsequently lieve he formed the intent nec occupants’] "[b]ecause home” and essary guilty burglary”). when h of the crime of also formed an intent assault 2015)129 Supp. entry: & formed after the unlawful S.D. Codi- (2016)130 (2006).134 § § 22-32-1 Mo. Rev. Stat. 569.160 fied Laws 2911.12, §§ Ann. Ohio Rev. Code Accordingly, at least fourteen States (West 2911.21(A)(1) Supp. 2006 & currently in” offenses 2016)131 not have as an that do element the timing (LexisNexis Ann. 76-6-202 Code Utah Judge requirement by advocated 2012)132 Higginbotham’s concurring opinion. The (2015)133 9A.52.020 Rev. Code Wash. state that offenses do have such an ele- entry remaining Another unlawful few in ment aré number. for permits statute a conviction provides one entry At least state statute when the was unlawful but intent to that premises crime on the was commit on intent premises A,2d 538, Harding, See ly" provision State v. to those confined situations (Me. 1978) (concluding, n.2 in a case involv- where initial was We lawful. be- ing only entry, that there- no was interpretation lieve that such an would cre- jury obvious error in instance, an instruction to that For ate an anomalous result. un- remains, person surreptitiously once statute, "[i]f Rudolph’s interpretation der entrance, having gained knowing ... ishe not lawfully one who enters but then remains there, be licensed to and formulates unlawfully and forms the intent to commit there, surreptitiously remaining in after .'.. theft, felony, guilty another assault time”). he can have the that burglary while unlawfully one who enters and thereafter forms same that intent is Rollins, 314, See State v. 882 S.W.2d 317- guilty only trespass. We are unable to see (Mo. 1994) App. (upholding Ct. between the two the distinction scenarios. charged only unlawfully defendant view, In our the actor in the second scenar- in, despite concluding he also that dangerous culpable io is at least as unlawfully obtaining entered entrance Therefore, actor the first. we are not artifice, "[sjince through reasoning de- legislature satisfied that our intended such apart- enter fendant was licensed to burgla- a result when it enacted our current gained [because ment arti- he admission ry hold that a [W]e statute.... fice], he was not licensed likewise to remain guilty if he forms the intent there”). Missouri has redrafted statute theft, felony, assault at January changes effective but the are time he enters primarily (changing cosmetic “of- "crime” to any time thereafter while he continues to fense” and "he” to "he or she.” The sub- unlawfully. there remain stance of the Mo. remains same. statute (2016 2016). Supp. & Rev. Stat. Allen, 133. See State v. Wash.App. (2005) (expressing agree- P.3d Fontes, 131. See 87 Ohio State v. St.3d analy- ment with Court Utah’s (2000) (holding 721 N.E.2d Rudolph, insis P.2d may purpose defendant com- "a form the during point mit criminal offense at DeNoyer, State v. N.W.2d trespass”). course of a (S.D. (holding, where in- evidence 132. See State v. Rudolph, .970 P.2d per- dicated entered without defendant (Utah 1998). rejected court raped occupant mission where argument "remaining unlawfully” enter, permission there was no evidence of provision was to reach "those intended to an instruction entitled initially build- where the actor enters a cases guilty burglary, to be "that order found ing lawfully but remains there his then .rape he have had the victim the intent right expired purposes or her has to do so because entered her home" “the crime,” committing stating simply requires current true, person remain in after form- While this not neces- the structure does crime”). sarily "remaining follow intent to that the unlawful- commit a (2014)135 Alaska 11.46.310 present at the time of unlawful Stat. must be at the time of lawful entry or (2013)136 Ask. 5-39-201 crime, commit a person, with intent Ann, (West § 53a-101 Conn. Gen. Stat. privilege premises after the remains 2012)137 no expires or the enter are Vt, Stat, Ann, open public: to the tit. longer Haw, (Lexis- Rev. 708-810 Stat. (2009 “re- 13, Supp. § 1201 & State 2016)138 Nexis require to in” that maining appear statutes (McKinney 140.20 N.Y. Penal Law that crime at the time to commit intent 2010)139 ... on presence property the defendant’s the (2015)140 OR. Stat. first unlawful include: Rev. becomes 1044, State, subsequently entry, initial lawful that be- 1048 780 P.2d See Pushruk v. unlawful.”); ("It (Alaska (staling App. in 291 be Ct. dicta when comes would an id. , only entry "to find was at issue that extension of Hawaii’s modern unlawful unwarranted burglary, the guilty of must state burglary expand defendant the offense statute to bur- the intent to commit show the defendant had glary which the crimi- include situations presence crime at the time his an additional develops entry nal unlawful after an intent unlawful, i.e., premises first on the became occurred.”); remaining (ap- 289-90 has id. at trespassed, that first entered or the time he unanimity pearing require jury as to the unlawfully premises”). remained on (entering remaining), conduct under- conviction). lies the State, 391, 384 136. See 2011 Holt v. Ark. 498, (2011) (observing 505 that even S.W.3d Gaines, 358, People 74 139. See v. N.Y.2d had the defendant invited into if been 620, 913, (1989) N.Y.S.2d N.E.2d 915-16 privileged dwelling, certainly “he was not (concluding guilty of that”in to be bur order [the, telling began there vic once remain glary remaining, for a defendant unlawful you get I anytime ‘I I tim] told could legally, have remain for the entered you, one ‘if I have no wanted can’t committing a purpose of crime after authori her”). stabbing can’ terminates, premises zation to be on the ex 503, Edwards, 10 137. See Conn.App. State v. plaining; “[b]y unlawfully’ the words 'remains A,2d 648, (1987) (holding Legislature sought to broaden defin i jury failure to instruct needed to trespass, eliminate tion criminal agree on unlawful whether defendant entered constituting requirement that criminal the act been ly unlawfully remained would have by contemporane trespass accompanied presented if error the state had evidence In crime.... either ous intent to commit a entry and unlawful be remaining], 'con [unlawful or unlawful burglary recognized types cause two temporaneous required.”). actions); conceptually are different State Belton, 190 Conn. 461 A.2d White, 624, 147 State v. 341 Or. P.3d (1983) (explaining that "to remain (2006) (“[T]he legislature included contemplates legal entry be initial an unlawfully’ wording in the bur ‘remains comes unlawful at time that the actor's glary solely clarify right, privilege or license to remain extin remaining unlawfully could occur after an Brooks, guished”); see also State 88 Conn. pro entry. initial not intend to lawful It did (rea (2005) App. n.2 A.2d vide that a who commits soning im that even had "with been by entering building unlawfully commits an consent, plicit ‘vicious assault’ ... additional, separate the burglary violation of consent,” scope clearly within the dwelling by remaining in thereaf statute ter.”); therefore the defendant had remained J.N.S., Or.App. In re P.3d unlawfully). (2013) ("[W]e hold that second- Mahoe, (Haw. degree burglary may be committed two State 972 P.2d 1998) ("A ways: entering unlawfully’ un perpetrator alternative ‘remains purposes prosecution only lawfully crime therein; entering lawfully, situations in which the individual makes offenses, only Of five Similarly, though these seven state further crime.”144 the vi- parameters come the- olent crimes within advocated considered have revoked Judge Higginbotham’s permission to concurring be on the opinion “generic” Arkansas burglary. in” and Connecticut con- That decisions struing. “remaining are different is because the de- Arkansas Connecticut gree from shoplifting, legal principles offenses been construed encom- same; are the commission of a crime after pass lawfully those who enter and whose entry. lawful It appears only because, five state presence becomes unlawful Judge actually embody what premis- commission crime Higginbotham’s concurring opinion de- es.141 The commission con- approach the “narrower to ge- scribes revoked, implicitly sidered to have ex- burglary’s neric ‘remaining in’ lan- of, ceeded the limits the to permission respect timing to the guage”145 an no enter.142 Such offense different to intent commit a crime on premises. the analytical from perspective an than the is no that There indication the number Judge Higginbotham’s example .in concur- adopted states that had embody- statutes ring opinion “teenagers who remain in a ing the approach” “narrower was beyond house their intending invitation greater when was decided. party, then to to later decide steal.”143 “Remaining appear that in” statutes to Arkansas and Connecticut offenses be generic burglary broader than requirement also do not because fit within the es- Judge Higginbotham’s shoplifter a can be include: convicted poused concur- Stat, ring (2010)146 § opinion “the perpetrator Ariz. Rev. Ann. trespass that already (2014)147 harboring while intent to commit a 18.2-90 § Code Va. Ann. remaining unlawfully—viz., failing atp. then 144. See ante present expires after leave authorization to 145, or is revoked—with the intent to commit a p. See ante at id, therein,”); (“If trespass at 1118 begins a when 146, defendant remains a build Belcher, 133, See State 161 Ariz. 776 ing expired after has P,2d authorization has 811, (Ariz. 1989) App. (upholding Ct. revoked, been then we whether ask the defen jeans a- were stolen possessed requisite dant criminal intent at hours,' business reasoning from store'during remaining.”). requisite' “[t]he person be formed enters a store in State, 141. See Holt v. Ark. innocence”). all (2011) (observing S.W.3d that even if the had defendant been into invited Commonwealth, 22 Va.App. Clark v. dwelling, privileged "he not was (Va. 1996), certainly reh’g, S.E.2d began telling remain vic there once [the (Va. 1997) Va.App, 481 S.E.2d 495 you get anytime I I tim] 'I told could (affirming burglary conviction when defen you, 'if I wanted to’ and no one can't night open store dant entered while was her”); Brooks, stabbing can’ State for business while and committed what theft (2005) Conn.App. 782 n.2 A.2d appeared gun showing to be butt of a (reasoning that even if had been pocket; his from “[w]e court reasoned consent, implicit assault "vicious ... was 18,2-90, person § that Code hold clearly scope of that within the consent" intending who enters to commit rob store “[t]hus, re therein, bery unlawfully,”); store enters the statute”). meaning mained within the ("We holding id. at 677 our reiterate Johns impeachment an ‘[i]t would be 142. See id. say common mankind sense ... who store thief enters the with intent steal atp, upon See ante does so with owner’s consent and con- Herrera-Montes direct therefore what other “remain- It is certain unclear other Circuit Court decisions. tim- flict with regarding the require in” ing broadly, Circuit Courts are More state courts have intent because re- generic burglary to when conflict question: yet addressed to be commit a crime quires (2015) § Ann. tit. Del. Code formed. (2014)148 § 45-6-204 Ann. Mont. Code Bonilla, Fourth In United States (2016) § 635:1 N.H. Rev. Stat. Ann. Texas conviction under Circuit held (2012) 12.1-22-02 N.D. Cent. 30.02(a)(3) qualified section Penal Code 39-14^402(a)(2) Code Ann. Tenn. dwelling” under 2L1.2 “burglary of a pro- Texas statute Guidelines.151 30.02(a)(2) Tex. Code Ann. Penal person commits offense “[a] vided (West if, own- effective consent without the Wyo. 6-3-301 Stat. er, enters attempts of the current state Analysis commits habitation and very theft, few felony, statutes reflects that or an assault.”152 commit a require intent to commit of them with the defen- agreed The Fourth Circuit require crime on the be formed “does not offense dant in remaining entry.”153 or at the unlawful But that the intent exist at It that a premises. quirk also cannot said “this as to agree court did Tay- “re- adopted have majority States is fatal under timing element 154 lor," require jury concluding maining that intent at unanimously whether the defendant burglary, decide not an even element unlawfully. unlawfully or remained is an entered statute unlawful

“entry” and “re- does include statute V maining in.”155 Bonilla, con In The Circuit also Eighth Circuits have Fourth Sixth held, “a argument discussing timing in- the defendant’s without sidered tent, who person homeless enters that violations of the same Tennessee warmth, but in in con- to seek while issue home statute at Herrera-Montes149 side, pres an intent to steal” would generic burglary.150 stitute Our decision in forms Eason, (8th ”) 622, (quoting v. 643 F.3d 624 his Johns Common United States invitation.’ v. 487, Nance, wealth, 2011); Va.App. 489 v. 481 F.3d 392 Cir. United States S.E.2d 2007); (1990)). (6th Cir. United States (6th 1991). Anderson, Cir. 923 F.2d Manthie, 56, 641 148. See State Mont. (1982) (holding P.2d evidénce Bonilla, 687 States v. F.3d 151. United support finding was of either sufficient (4th 2012). Cir. in, unlawful jury re- it is not clear what was instructed (internal quotation marks omit- 152. Id. timing garding of intent to commit another ted) (quoting Tex. Penal premises). crime on (West 2011)). Herrera-Montes, States v. 490 F.3d United Id. at 192-93. (5th Cir. Id. at 193. Pledge, See United States v. F.3d (8th 2016): Cir. (6th 2015); Priddy, F.3d in a risk than enters sue Herrera-Montes qualifies ent less who plotting burglary, to commit a crime.156That contrary holding.162 our argument trespassing- is similar to the in Priddy Tennessee statute at issue de Herre in teenagers hypothetical discussed offenses, fined four different in ro-Montes.157 But the Fourth Circuit con cluding when, the offense that occurs arguments cluded are “flawed” and such “without[] effective consent of the qualify convictions such offenses owner,” property a defendant “[e]nters generic burglary “Taylor does not because attempts to com commits burglaries distinguish between based on theft,”163 mit felony the offense at comparative risk, their level but rather issue in Herrera-Montes.164 The Sixth Cir (1) with a concerned defendant’s unlaw cuit expressly did not timing discuss the structure, ful presence, intent to commit a crime must be the intent to with commit a crime.”158 formed, identify but it timing did not anas recognized The Fourth Circuit its in concluding element that the Tennessee holding conflicted with our court’s decision Taylor.165 congruent It is Constante,159 in United States v. but con notable that Tennessee is' within the Sixth “reading cluded that the Fifth Circuit’s jurisdiction, Circuit’s and as this court ob rigid.”160 too The Texas statute [is] HerreroMontes, served at least one Bonilla was virtually identical issue Tennessee state court has held that Herr the Tennessee statute at issue Herrero-Montes, offense at issue both era-Montes, accordingly, decision our Priddy, Sixth Circuit’s decision in latter case also conflicts 39-14-402(a)(3), Tennessee Code section Fourth Circuit decision. does not require intent to commit a crime Circuit has held that a convic on Sixth been formed at tion entry.166 under the Tennessee statute161 is the time of 156. Id. that proper an enhanced sentence be- was violating cause "Anderson was convicted of Herrera-Montes, 157. States v. 490 F.3d United statute,” which, burglary as the Tennessee’s (5th Cir. noted, court of the[ ] "contains all elements” Taylor). outlined in Bonilla, 687 F.3d at 193. Priddy, (quoting 808 F.3d Tenn. at. (5th 2008) (per 159. 544 F.3d 584 Cir. cu 3.9-14-402(a)(3) (1990)). § Code Ann. riam). Herrera-Montes, 164. See United States v. Bonilla, 687 F.3d (5th 2007)1 F.3d Cir. 39-14~402(a)(3). 161. Tenn. Code Ann. Priddy, 165. See F.3d at Priddy, 162. See United States 808 F.3d 2015); v. Herrera-Montes, (6th Cir. see also States v. 166. See United Nance, (6th 2007) (5th 2007) (observing 481 F.3d Cir. F.3d 392 n.2 Cir. 39-14-402(a)(3) (observing plain in a under that “the that "[t]he case the ACCA text of intent, weight authority require does indicates that Tennessee’s not such as a Tennessee aggravated burglary recognized”). generic” statute court has State Wesem is ann, (Tenn. holding aggravated burglary *2 that because an 1995 WL Crim. 16, 1995) App. under Tennessee law occurs when individ- Oct. 39-14- (hplding effective, 402(a)(3) "requires only felony com enters a con- that a be ual habitation without attempted property perpetrator sent the owner mitted or once the en and intends to felony, burglary); building. commit it is Unit- ters the Criminal intent does not Anderson, (6th ed States v. 923 F.2d have to occur either simultaneous (citations omitted). (holding entry.”) in a case the ACCA under the lawfully present, his was exceeds Eighth ap point Circuit one from the Decisions another,167 overstays his license and welcome.”173 though one pear to conflict with not the does court held that defendant “[i]f when a defendant only, one discusses requisite intent.at the moment he have the burglary have formed charged with must ‘remains,’ has not then he committed premi a crime on the intent Accordingly, generic burglary.”174 crime of McArthur, a In United States v. ses.168 that a Eighth convic concluded ACCA, Circuit Eighth arising case under tion statute “does under Minnesota a Minnesota held Circuit have formed require the defendant generic burglary for ‘intent commit crime’ the time require did “not the offense because remaining of the nonconsensual ‘intent to have formed not qualify that “it therefore does crime’ of the noncon- at the felony” as a under ACCA.175 violent in.”169 The remaining sensual provided statute at issue Minnesota Eighth Circuit’s decision McAr- building without “[w]hoever enters from to conflict with a decision thur seems felony or commits consent steals four months earlier United Circuit building” gross misdemeanor while Pledge, also involved States v. burglary,170and Minneso Eason, commits another ACCA,176 and with United States building “enters a with ta defined statute Sentencing Guideline which involved out consent” either entering 4Bl.l(b).177 include nor Pledge Eason Neither own without the discussed when argued er’s The Government consent.171 formed. But this person that a under Pledge convicted held that “[a] court entering without consent and quali- 39-14-403 Tenn. then offenses committing one generic burglary the listed offense and fies as a ‘remaining aspect Tay in’ felony.”178 Aggra- “meets the categorically a violent “because he lor ’s definition” 39-14-403 burglary under section vated developed requisite must have “burglary a habitation as defined ‘remaining §§ point at some while in’ the 39-14-401 and 39-14-402.”179 Section rejected building.”172 Eighth following Circuit 39-14-402 offense: includes “ who, argument. It ‘remain “A commits concluded that without property ...' that occurs the effective consent owner in’ a discrete event at commits perpetrator, at moment and [e]nters who McArthur, at Compare 167. United 836 173. Id. 944. States v. (8th 2016), Cir. 943-44 with United F.3d (8th Pledge, 821 F.3d Cir. States v. 174. Id. 2016), Bason, States v. 643 F.3d United (8th 2011). Cir. Id. 175. McArthur,

168. 836 F.3d 943-44. at (8th 2016). Cir. 176. 821 F.3d 609.582, (citing § 169. Id. Minn. Stat. (8th 2011). 622, 623 Cir. 177. F.3d 3). subdiv. (citing Pledge, at 1037 United 821 F.3d 178. 609.582, 3). (quoting § 170. at 942 Id. subdiv. (6th Priddy, 808 F.3d 2015)). 609.581, (citing § 171. Id. subdiv. (2014). § 172. 943. 39-14-403 Id. at 179. Code Ann. Tenn. attempts felony, Supreme to commit theft as- “the Utah Court held that to be Eason, Eighth of-burglary In Circuit sault.”180 convicted ‘the actor com mit or form held that this same Tennessee offense the intent commit another gener- “plainly” contained “the elements crime at the time he enters or while ic burglary unlawfully as remains in the building.’”186 defined Taylor.”181 of- Court in This Tennessee The Ninth Circuit that' held of Utah very aspect of “burglary fense is similar fense dwelling” constituted Eighth § that the Minnesota offense Cir- 2L1.2 of the under Guidelines.187 cuit held McArthur was not seen, As can be there is a division burglary. among the Circuit Courts as to the ele- Eason, Pledge Eighth In Circuit ments of generic burglary. no There is considered same Tennessee unanimity as when commit our that issue in in a crime were court’s decision on must be formed. Eighth Herrera-Montes.182 Circuit’s

conclusion that aggravated the Tennessee VI generic burglary burglary offense was Bernel-Aveja contends that this court’s contrary to the in Herrera- conclusion decision in Herrera-Montes188 governs it that is not. Montes case, today, our decision we “Taylor The Ninth held Circuit has concluded does. saidWe long Taylor's allows so Herrera-Montes convictions the defendant requires formed de “the unlawfully remaining crime while fendant intend commit crime at the premises, regardless in, legality time of unlawful entry That entry.”183 court reasoned do the “[t]o 221.1 and Penal Code Model Dictionaey (6th Taylor’s hold otherwise would render ‘rem BlacK’s Law ed. 1990).”189 that, in’ aining language surplusage.”184 example, “[f]or stated We teenagers elements Utah offense consid who enter a house only eration an actor party, were that “‘enters or later decide crime, unlawfully in a that con building’ remains are bur common 190However, ‘dwelling’ glars.” stitutes a intent to commit a the Model Penal Code provision, crime.”185 Ninth Circuit it has not observed 39—14—402(a)(3). States, 575, 598, Taylor v. U.S. Id. (1990)). S.Ct L.Ed.2d Eason, 643 F.3d at 624. Id. Pledge, (examining 821 F.3d Tenn. 76-6-202(1)- (citing Utah Code Ann. 39-14-403, which refers 39- (2)). Eason, elements); 14-402 for 643 F.3d at 624 39-14-402); (examining Tenn. Code Ann. (quoting v:Rudolph, Id. 970 186. at State Herrera-Montes, 490 United States v. F.3d 1998)). (Utah P.2d (5th 2007) (examining Cir. Tenn. 39-14-403, which refers to 39- Code Ann. 187. Id. at 1157. elements). 14-402 for (5th 188. Cir. 490 F.3d Reina-Rodriguez, 183. United States (9th 2006), Herrera-Montes, F.3d Cir. overruled on F.3d 189. at 392. Grisel, grounds by other States v. United (9th (en banc) 2007) (citing F.3d 844 Cir. 190. Id. However, clear, we not have a as be did adopted, and discussed widely

been “remaining in” before us Herr- above, adopted “remain statute many states had only The statute criminalized Taylor was decided. eras-Montes. ing in” statutes when above, entry, providing: “A com- appears, It as discussed also unlawful who, the effective without require the intent mits such statutes do property [e]nters owner crime to have been consent commit another formed attempts and commits or entry. at theft, or felony, assault.”195Nor commit a court, though of our Another decision opinion character- the Herrera-Montes did “re observed unpublished, “remaining ize this Tennessee statute issue, requiring in” maining To have done so would have in” statute. time of a crime at the did, however, opinion been incorrect. The n Taylor entry would inconsistent entirely gratuitously offhandedly and ad- That generic burglary.191 formulation of “remaining in” burglary by dress dicta opinion specifically: “conclu[sion] said in one That en- footnote.196 discussion was re tirely holding unnecessary to the quires that form part It case. should also be noted that entering a structure commit crime before remaining in that footnote discussed with the ‘re ... would be inconsistent entry.197The Tennessee statute ac- lawful Taylor’s maining aspect in’ definit tually at issue criminalized unlawful panel in that did not ion.”192 The case discussed, entry already no and as had issue, however, since have resolve component. error, plain of review was the standard Judge Higginbotham’s concurring Today, law in our circuit.193 and the was unclear states, that opinion opinion implies, concluded that if not the stat unpublished That panel was not ute before us Herrera-Montes was the Herrera-Montes called aspect “remaining in” demon ‘remaining “to reconcile the in’ statute.198 That upon Judge Higginbotham’s strably for intent at requirement with a incorrect. concurring opinion our has also states that entry.”194Today, panel the time question, to confront statute at issue in “could we Herrera-Montes generic burglary only concluded Herrera-Montes have come within that because reading ‘remaining time of in’ in broadly that intent at the under a broad held not, generic burglary, is an we definition.”199But we did element to, required opine to the must follow Herrera-Montes. were not Davis, Fed.Appx. unlawful United committed after an 191. States remain- (5th curiam). Relatedly, burglary. (per in would be one who Cir. lawfully 'unlawfully enters does not just he remain’ later commits a because 192. Id. crime, parlaying into be- the crime cause now intent co- Id. instance, shoplifter, for who enters incide—a intending lawfully steal does not ‘un- lawfully remain’ when commits theft.”). Herrera-Montes, 490 F.3d (5th 2007) (quoting Tenn. 197. See id. 39-14-402(a)(3)). § 198. See ante ("Of course, See id. n.l if the intent at 392 anytime, every then 199. See ante at 216. could formed meaning “remaining in” to Only resolve the Court can resolve the single among opinion split case. The fact that from the Circuit as to Courts when Circuit, Sixth refused follow formation intent for purposes generic Herrera-Montes, observed that the Ten must occur. But until the Su- preme speaks, nessee statute at issue was ‘remain Court “also a whether ing-in’ generic under Ohio’s burglary,” variant of dispositive offense, is a as whether that statute actually relatedly, sets forth a in” of what offense of fense, Judge Higginbotham’s concurring unlawfully remaining in re- opinion suggests.201 quires regard The Tennessee statute must be formed, “remaining-in” important did not contain the words are questions that our It equivalent. their defined court should en the offense decide banc. The Herrera- entry. with reference to Montes opinion’s errant discussion “re

maining was nothing more

than unnecessary and erroneous decla

ration.

* * * Priddy, 200. See United States v. 808 F.3d See ante (6th

Case Details

Case Name: United States v. Cesar Bernel-Aveja

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Dec 13, 2016

Citation: 844 F.3d 206

Docket Number: 15-20308

Court Abbreviation: 5th Cir.