844 F.3d 206 | 5th Cir. | 2016
Lead Opinion
Cesar Bernel-Aveja was convicted under 8 U.S.C. § 1326(a) and (b)(2) of illegal reentry after deportation and appeals his sentence. He contends that his prior 1996 Ohio conviction for burglary does not qualify as “burglary of a dwelling,” a specifically enumerated “crime of violence” under United States Sentencing Guideline § 2L1.2,
I
Bernel-Aveja pleaded guilty without a plea agreement to illegal reentry after de
Bernel-Aveja filed written objections to the PSR’s designation of his prior conviction as a “crime of violence.” Pertinent to this appeal, Bernal argued that the Ohio offense did not qualify as the enumerated offense of “burglary of a dwelling” because Ohio permits conviction “even though the defendant forms the intent to commit a crime only after the trespass.”
Without specifically addressing Bernel-Aveja’s argument respecting the timing of intent for purposes of generic burglary, the district court applied the crime of violence enhancement and imposed a within-Guidelines sentence of 37 months of imprisonment, followed by a three-year term of supervised release. Bernel-Aveja has appealed.
II
The Sentencing Guidelines provision applicable to Bernal-Aveja’s conviction for illegal reentry after deportation was the version of § 2L1.2 in effect in June 2015, when he was sentenced. It directed that the offense level should be increased by 12 if the defendant was previously convicted of a felony described in subsection (b)(1)(A) that did not receive criminal history points under Chapter Four of the Guidelines.
The sole issue in this appeal is whether the district court erred in concluding that Bernel-Aveja’s 1996 Ohio bur
The judgment of conviction regarding Bernel-Aveja’s 1996 offense establishes that he pleaded guilty to burglary in the third degree under Ohio Revised Code section 2911.12.
(A) No person, by force, stealth, or deception, shall do any of the following:
(1) Trespass in an occupied structure ... with purpose to commit therein any theft offense or any felony;
(2) Trespass in a permanent or temporary habitation of any person when any person is present or likely to be present, -with purpose to commit in the habitation any misdemeanor that is not a theft offense;
(3)Trespass in a permanent or temporary habitation of any person when any person is present or likely to be present.
[[Image here]]
(C) Whoever violates this section is guilty of burglary. A violation of division (A)(1) is an aggravated felony of the second degree. A violation of division (A)(2) of this section is a felony of the third degree. A violation of division (A)(3) of this section is a felony of the fourth degree.8
Bernel-Aveja and the Goyemment agree that he was convicted under subsection (2) of section 2911.12 because the Ohio judgment of conviction reflected that his offense was a third degree felony. The term “trespass” obtains its meaning from Ohio’s criminal trespass statute, which provides: “(A) No person, without privilege to do so, shall do any of the following: (1) Knowingly enter or remain on the land or premises of another....”
(A) No person, by force, stealth, or deception, shall ...
(2) [without privilege to do so, knowingly enter or remain on the land or premises of another] in a permanent or temporary habitation of any person when any person is present or likely to be present, with purpose to commit in the habitation any misdemeanor that is not a theft offense.
Bernel-Aveja contends that “burglary of a dwelling,” as used in the. Guidelines, requires the defendant to have the intent to commit a crime when unlawfully, entering the dwelling. Because the Supreme Court of Ohio has construed language in another statute
Ill
One of the Government’s arguments is that when Bernel-Aveja was convicted in 1996, the Ohio intermediate courts of appeals were divided on the issue of when a defendant must form the requisite intent under section 2911.12.
The Ohio Supreme Court’s decision in Fontes did not change the law; it construed an existing Ohio statute.' The Fontes decision resolved a conflict among Ohio intermediate appellate courts. As the Supreme Court of Ohio has explained, “[t]he general rule is that a.decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation, and the effect is not that the former was bad law, but that it never was the law.”
The Government’s position would also produce the ¿nomalous result that for con
In Fontes, the defendant was convicted of rape and aggravated burglary.
Though Fontes and the subsequent Ohio Supreme Court decision concerned convictions under Ohio Revised Code section 2911.11,
We must determine whether section 2911.12 is overly inclusive and does not come within the generic meaning of “burglary of a dwelling” since under that section, the intent to commit á crime may be formed during the trespass and not necessarily at the time of entry.
!Y
The Guidelines do not define the offense denominated in § 2L1.2 as “burglary of a dwelling.” We determine the elements of an offense enumerated
We held in United States v. Herrerar-Montes that the generic definition of burglary arrived upon by the Supreme Court in Taylor v. United States “requires that the defendant intend to commit a crime at the time of unlawful entry or remaining in.”
The Tennessee statutory provision under which the defendant in Herrerra-Montes had previously been convicted defined the offense of conviction as follows: “(a) A person commits burglary who, without the effective consent of the property owner ... (3) [e]nters a building and com-' mits or attempts to commit a felony, theft, or assault!...”
In Constante we held that a particular Texas burglary offense “is not a generic burglary under the Taylor definition because it does not contain an element of intent to commit a [crime] at the moment of entry.”
In the present case, the elements of the Ohio offense for which Bernal-Aveja was convicted are found in two separate statutes.
The fact that wé recognized in Herrera-Montes that the generic definition of burglary could have a “remaining in” alternative does not affect the actual holding in that case or its applicability to the present case. We said in Herrera-Montes that “Taylor requires that the defendant intend to commit a crime at the time of unlawful entry into or remaining in.”
* * *
Accordingly, we. VACATE Bernel-Aveja’s sentence and REMAND for resentenc-ing.
. U.S. Sentencing Guidelines Manual § 2L1.2 (U.S. Sentencing Comm'n 2014).
. See U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A) (U.S. Sentencing Comm’n 2014), which provided:
(b) Specific Offense Characteristic
(1) Apply the Greatest:
If the defendant previously was deported, or unlawfully remained in the United States, after—
(A) a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months; (ii) a crime of violence; (iii) a firearms offense; (iv) a child pornography offense; (v) a national security or terrorism offense; (vi) a human trafficking offense; or (vii) an alien smuggling offense, increase by 16 levels if the conviction receives criminal history points under Chapter Four or by 12 levels if the conviction does not receive criminal history points....
. See id.
. See id. cmt. l(B)(iii):
"Crime of violence” means any of the following offenses under federal, state, or local law: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced), statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.
. Id. In two unpublished opinions, this court has held that other Ohio burglary provisions that prohibit trespass into an “occupied structure,” which is by statutory definition not limited to structures used for human habitation, see Ohio Rev. Code Ann. § 2909.01(C) (West 2006 & Supp. 2016), do not categorically qualify as burglary of a dwelling. See United States v. Ramirez, 344 Fed.Appx. 962, 963-64 (5th Cir. 2009) (per curiam) (vacating a sentence enhancement based on a prior conviction under Ohio Rev. Code Ann. § 2911.11(A)(1)); United States v. Rees, 233 Fed.Appx. 362, 363-64 (5th Cir. 2007) (per curiam) (vacating a sentence enhancement based on a prior conviction under Ohio Rev. Code Ann. § 2911.12(A)(3)). Bemel-Aveja’s statute of conviction lacks the "occupied structure” term and instead proscribes trespass of a “permanent or temporary habitation.” Bernel-Aveja does not argue that a "permanent or temporary habitation” applies to non-dwelling structures and is therefore broader than the "dwelling” element. Rather, he appears to concede the issue.
. United States v. Bonilla, 524 F.3d 647, 651-52 (5th Cir. 2008).
. Ohio Rev. Code Ann. § 2911.12 (West 1990) (amended July 1, 1996).
. Id.
. Ohio Rev. Code Ann. § 2911.21; see also State v. Clelland, 83 Ohio App.3d 474, 615 N.E.2d 276, 287 (1992) (explaining that the term “trespass” in section 2911.12 is defined in section 2811.21).
. See Ohio Rev. Code Ann. § 2911.11(A)(1).
. See State v. Fontes, 87 Ohio St.3d 527, 721 N.E.2d 1037, 1040 (2000) (construing Ohio Rev. Code Ann. § 2911.11(A)).
. See Clelland, 615 N.E.2d at 285-86 & n.3 (collecting cases); see also In re L.D., 63 Ohio Misc.2d 303, 626 N.E.2d 709, 709 (Ohio Ct. Com. Pi. 1993) (observing that Ohio courts are "inexplicably split in their resolution” of the timing-of-intent issue).
. State v. Flowers, 16 Ohio App.3d 313, 475 N.E.2d 790, 792 (1984).
. See Fontes, 721 N.E.2d at 1040 (holding that "it therefore follows that we are not persuaded by the judgment[ ] of the court[ ] of appeals in ... [State v.] Flowers").
'. Peerless Elec. Co. v. Bowers, 164 Ohio St. 209, 129 N.E.2d 467, 468 (1955) (per curiam).
. See, e.g., Johnson v. United States, 559 U.S. 133, 136-38, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (relying on a Florida Supreme Court decision which post-dated the conviction at issue to define the elements of a Florida offense); see also Mathis v. United States, —
. Fontes, 721 N.E.2d at 1038.
. Id.
. Id. at 1039.
. Id. at 1040.
. State v. Gardner, 118 Ohio St.3d 420, 889 N.E,2d 995, 1002 (2008) (citing Fontes, 721 N.E.2d 1037).
. See Gardner, 889 N.E.2d at 998-99; Fontes, 721 N.E.2d at 1037.
. Compare Ohio Rev. Code Ann. § 2911.11(A) (West 2006) (“Ño person, by force, stealth, or deception, shall trespass in an occupied structure ..., when another person other than an accomplice of the offender is present, with purpose to commit in the structure ... any criminal offense....”) with Ohio Rev. Code Ann. § 2911.12(A)(2) (West 1990) ("No person, by force, stealth, or deception, shall ... (2) Trespass in a permanent or temporary habitation of any person when any person is present or likely to be present, with purpose to commit in the habitation any misdemeanor that is not a theft offense.”); see also State v. Evett, No. 14CA0008-M, 2015 WL 4069588, at *3 (Ohio Ct. App. July 6, 2015) (applying Fontes to a conviction under § 2911.12(A)(1)).
. See, e.g., United States v. Ortega-Gonzaga, 490 F.3d 393, 394 (5th Cir. 2007).
. See, e.g., United States v. Pascacio-Rodriguez, 749 F.3d 353, 358 (5th Cir. 2014).
. Moncrieffe v. Holder, — U.S. —, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007)); see also Mathis v. United States, — U.S. —, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016).
. Moncrieffe, 133 S.Ct. at 1684 (quoting Johnson v. United States, 559 U.S. 133, 137, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010)).
. Id. at 1684-85 (quoting Duenas-Alvarez, 549 U.S. at 193, 127 S.Ct. 815).
. 490 F.3d 390, 392 (5th Cir. 2007); see also United States v. Fambro, 526 F,3d 836, 850 (5th Cir. 2008) (noting in dicta in a case involving the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), that “[w]e have held that ‘Taylor requires that the defendant intend to commit a crime at the time of unlawful entry or remaining in’ ”) (quoting Herrera-Montes, 490 F.3d at 392); United States v. Constante, 544 F.3d 584, 586, 587 (5th Cir. 2008) (per curiam) (in a case arising under the ACCA, holding that conviction for "entering] a building or habitation and committing] or attempting] to commit a felony, theft, or an assault," under Tex. Penal Code Ann. § 30.02(a)(3), was not generic burglary because it did not contain the element of intent to commit a crime "at the moment of entry") (citing Herrera-Montes, 490 F.3d at 392).
. 544 F.3d at 586-87.
. See id. at 585 (addressing Tex. Penal Code Ann. § 30.02(a)(3)); Herrera-Montes, 490 F.3d at 391 (addressing Tenn. Code Ann. § 39-14-402(a)(3)).
. See United States v. Segura, 747 F.3d 323, 328 (5th Cir. 2014) ("A statement is dictum if it could have been deleted without seriously impairing the analytical foundations of the holding and being peripheral, may not have received the full and careful consideration of the court that uttered it. A statement is not dictum if it is necessary to the result or constitutes an explication of the governing rules of law,”) (internal quotation marks omitted) (quoting Int’l Truck & Engine Corp. v. Bray, 372 F.3d 717, 721 (5th Cir. 2004)).
. Tenn. Code Ann. § 39-14-402(a)(3).
. Herrera-Montes, 490 F.3d at 392.
. Id.
. Id.
. United States v. Constante, 544 F.3d 584, 587 (5th Cir. 2008) (per curiam).
. Id. at 585 (construing Tex. Penal Code Ann, § 30.02(a)(3)).
. Id. 587.
. Ohio Rev. Code Ann. § 2911.12 (West 1990) (amended July 1, 1996), and § 2911.21(A)(1).
. Id. § 2911.21(A)(1) ("No person, without privilege to do so, shall do any of the following: (1) [k]nowingly enter or remain on the land or premises of another.... ”).
. See Mathis v. United States, — U.S. —, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016) (explaining how to determine if a statute is divisible, which means that it sets forth more than one offense).
. See Moncrieffe v. Holder, — U.S. —, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013).
. See State v. Fontes, 87 Ohio St.3d 527, 721 N.E.2d 1037, 1040 (2000).
. United States v. Herrera-Montes, 490 F.3d 390, 392 (5th Cir. 2007),
. See Herrera-Montes, 490 F.3d at 392 n.1 (citing United States v. Ortega-Gonzaga, 490 F.3d 393, 396 & n.5 (5th Cir. 2007)).
.See Fontes, 721 N.E.2d at 1039, 1040 (approving a trial court’s instruction to a jury that "in order to be convicted of aggravated burglary, appellant need not possess the purpose to commit a criminal offense prior to trespassing into an occupied structure but could form the purpose to commit a criminal offense while the trespass is in progress”),
Concurrence Opinion
concurring in the judgment:
Today our Court is. urged to tread a path that defies the overarching purpose
All this is rote. But much follows from these basic principles of evenhanded sentencing and their deploy in the effort to mitigate the corrosive bite of disparity into the reality and presentment of an evenhanded judiciary. It is apparent that the effort is ill-served by gathering as many states as possible under a common label. That our federal template is not met by all states is no failure. To the contrary, sweeping all state definitions of “burglary” into the federal rule is a pursuit for a “uniformity” that defies' the central purpose of assigning similar weight in sentencing to similar conduct. Stated directly, it confounds the congressional purpose. These realities must inform our reading of the Supreme Court’s generic formulation.
The federal circuits differ over the meaning of the phrase “remaining in” in the Supreme Court’s generic definition of burglary.
The competing view interprets “remaining in” to. be a continuous undertaking or condition that exists for the entire duration that a perpetrator is inside of a building.
We must decide which of the two views the Supreme Court intended to encapsulate when it included “remaining in” as an alternative to “entry” in its generic definition of burglary. The answer has relevance because a minority of states have given the phrase “remaining in” in their burglary statutes the broad interpretation—the survey of the special concurrence supposedly identifies fourteen. All else equal, those states’ burglary convictions fall within generic burglary only if the Supreme Court’s ‘Temaining in” language in the generic definition is given the same, broad construction. Additionally, two states have enacted “burglary” provisions that criminalize no more than unlawful entry and subsequent commission of a crime;
We took the narrower approach to generic burglary’s “remaining in” language in United States v. Herrera-Montes.
The special concurrence calls Herrera-Montes’s discussion of the “remaining in” alternative of generic burglary “offhanded,” “entirely gratuitous,” and “entirely unnecessary” dicta. Yet, the very eases that it advocates this circuit follow acknowledge that statutes like Tennessee’s can be generic burglary only under the remaining-in alternative.
That precedent disposes of this appeal. Bernel-Aveja’s statute of conviction, Ohio third-degree burglary, incorporates the phrase “remaining in,” and the Ohio Supreme Court has ascribed to it the broader reading such that it criminalizes conduct every bit as broadly as the Tennessee provision in Herrera-Montes.
The special concurrence calls for en banc departure from this precedent, preferring the broad reading of “remaining in” burglary. It faults the narrow view for failing to include all such state “burglary” convictions within the generic definition. That position- confounds the purpose of evenhanded sentencing -sought after by the Sentencing Guidelines and related statutes. It also fouls the mandate of Taylor itself.
The Supreme Court’s discussion in Taylor undermines the special concurrence’s misplaced emphasis on not allowing any states to be “left out” of burglary sentencing enhancements. The Court was clear to the point of redundancy that “the meaning of ‘burglary’ for purposes of [the ACCA]” does not “depend on the definition adopted by the State of conviction.”
The Court declined to incorporate the state definitions of burglary into the ACCA primarily because “[t]hat would mean that a person convicted of unlawful possession of a firearm would, or would not, receive a sentence enhancement based on exactly the same conduct, depending on whether the State of his prior conviction happened to call that conduct ‘burglary.’ ”
That a small number of states’ burglary convictions might be excluded from the generic definition of burglary for purposes of sentencing enhancement is not an alarming result. To the contrary, it is a desired by-product of Taylor. The Supreme Court contemplated that some state burglary convictions would fall outside of its generic definition due to the various idiosyncrasies and vagaries of state burglary statutes.
The reading of , generic burglary proffered by the special concurrence strains common sense, an elusive element in federal sentencing today. The Supreme Court made .clear that generic burglary requires “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.”
The circuits that have been persuaded to adopt the broad reading of “remaining in” generic burglary have done so because the Supreme Court, in announcing the categorical approach, instructed courts that “the exact formulations may vary” and to look whether the statute “corresponds in substance to the generic meaning.”
Contemporary burglary statutes have developed significantly from their common law roots; the Court’s generic definition recognizes as much.
Assuming the accuracy of the survey undertaken by the special concurrence, fourteen states have given the phrase “remaining in” in their burglary statutes the broad construction. Which side of the instant debate one prefers only has the potential to affect whether those fourteen state burglary statutes are included as generic burglary; the special concurrence seeks to include them all, and the view expressed here may have the effect of excluding them. Some of them may already be excluded from generic burglary for a different reason entirely. It is nigh impossible to determine in a prospective manner the subtle contours of what every state burglary provision requires. This is precisely the reason that the Supreme Court sought to free federal courts from the burden of undertaking extensive state surveys.
I must disagree with my colleague’s special concurrence and with the suggestions in the panel majority’s opinion that this circuit’s precedent is in error. I concur in the judgment.
. See Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (“[T]he generic, contemporary meaning of burglary contains at least the following elements: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.”).
. United States v. McArthur, 836 F.3d 931, 944 (8th Cir. 2016).
. 3 Wavne R. LaFave, Substantive Criminal Law § 21.1(b)(2d ed.).
. Id. (“This means, of course, that the requisite intent to commit a crime within need only exist at the time the defendant unlawfully remained within.”).
. See United States v. Bonilla, 687 F.3d 188, 193-94 (4th Cir. 2012).
. Id. at 194 (emphasis added).
. See, e.g., State v. Fontes, 87 Ohio St.3d 527, 721 N.E.2d 1037, 1038-40 (2000) (trespasser who spontaneously decided to rape inhabitant upon discovering her sleeping became a burglar under Ohio law as a result).
. Id. at 1039-40.
. Tenn. Code Ann. § 39-14-402(a)(3) ("A person commits burglary who, without the effective consent of the property owner: ... Enters a building and commits or attempts to commit a felony, theft or assault.”); Tex. Penal Code § 30.02(a)(3) (similar).
. 490 F.3d 390 (5th Cir. 2007).
. Id. at 391 (citing Tenn. Code Ann. § 39-14-402(a)(3)).
. Herrera-Montes, 490 F.3d at 392 n.1.
. See United States v. Priddy, 808 F.3d 676, 685 (6th Cir. 2015) ("And, burglary under [Tenn. Code Ann.] § 39-14-402(a)(3) is also a
. See Fontes, 721 N.E.2d at 1040 ("Accordingly, we hold that for purposes of defining the offense of aggravated burglary pursuant to R.C. 2911.11, a defendant may form the purpose to commit a criminal offense at any point during the course of a trespass.”).
. Taylor, 495 U.S. at 590, 110 S.Ct. 2143.
. Id. at 591, 110 S.Ct. 2143.
. Id. at 592, 110 S.Ct. 2143.
. Mathis v. United States, — U.S. —, 136 S.Ct. 2243, 2251, 195 L.Ed.2d 604 (2016).
. Taylor, 495 U.S. at 590-91, 110 S.Ct. 2143.
. Id. at 590, 110 S.Ct 2143.
. See Taylor, 495 U.S. at 590-92, 110 S.Ct. 2143.
. Helen A. Anderson, From the Thief in the Night to the Guest who Stayed Too Long: The Evolution of Burglary in the Shadow of the Common Law, 45 Ind. L. Rev. 629, 647 (2012).
. Taylor, 495 U.S. at 598, 110 S.Ct. 2143 (emphasis added).
. McArthur, 836 F.3d at 944.
. See Priddy, 808 F.3d at 685 (citing Taylor, 495 U.S. at 602, 110 S.Ct. 2143); Bonilla, 687 F.3d at 194 (citing Taylor, 495 U.S. at 599, 110 S.Ct. 2143).
. See Mathis, 136 S.Ct. at 2248-50.
. Id. at 2250 (Iowa burglary not generic burglary because it includes unlawful entry into vehicles, not just buildings); Taylor, 495 U.S. at 591, 110 S.Ct, 2143 (California burglary not generic burglary because it supports a conviction even when entry was lawful).
. See Taylor, 495 U.S. at 592-96, 110 S.Ct. 2143.
. Id. at 584-85, 110 S.Ct. 2143.
Concurrence Opinion
concurring:
Even though amendments to the Sentencing Guidelines effective November 1, 2016 eliminated “burglary of a dwelling” as an enumerated, predicate offense in determining whether a Sentencing Guidelines enhancement applies,
Because of the importance of the issue, I am taking the unusual step of filing a concurring opinion, with the opinion I have written on behalf of the panel, after coming to the conclusion that dicta in our decision in United States v. Herrera-Montes
We should have said in Herrera-Montes that when a statute of conviction criminalizes only unlawful entry, the intent to commit a crime on the premises must exist at the time of entry. We should not have expressed an opinion as to when such an intent must be formed when a “remaining in” burglary offense is at issue. Both Taylor’s generic definition of burglary and a majority of the States’ burglary statutes include unlawful entry or “remaining in” in defining burglary.
With great respect, Judge Higginbotham’s concurring opinion in the present case, mounting a defense of the opinion he authored in Herrera-Montes, obscures the focus of the inquiry as to what “generic” burglary requires with respect to the timing of intent. It goes without saying that a particular State’s definition of burglary is not controlling.
I do not advocate that generic burglary must include “all” state, burglary statutes or that no state burglary statute should be “left out,” as Judge Higginbotham’s concurring opinion asserts.
There is a split among the Circuit Courts as to whether generic burglary requires intent to commit a crime to be formed at or before the time that the presence on the property first becomes unlawful.
I
Ascertaining whether a prior conviction qualifies as a “crime of violence” under the Guidelines requires application of the “categorical approach,” with which federal sentencing and appellate courts have wrestled for many years.
The 1996 judgment of conviction establishes. that Bernel-Aveja pleaded guilty to burglary in the third degree, a violation of Ohio Revised Code section 2911.12.
When Bernel-Aveja committed the 1996 offense, section 2911.12 of the Ohio Code provided in pertinent part:
(A) No person, by force, stealth, or deception, shall do any of the following:
(1)Trespass in an occupied structure ... with purpose to commit' therein, any theft offense or any felony;
(2) Trespass in a permanent or temporary habitation of any person when any person is present or likely to be present, with purpose to commit in the habitation any misdemeanor that is not a theft offense;
(3) Trespass in a permanent or temporary habitation of any person when any person is present or likely to be present.
[[Image here]]
.(C) Whoever violates this section is guilty, of burglary. A violation of division (A)(1) of this section is an aggravated felony of the second degree. A violation of division (A)(2) of this section is a felony of the third degree. A violation of division (A)(3) of this section is a felony of the fourth degree.20
As Bernel-Aveja notes, it is “apparent” that he was convicted under subsection (2) of section 2911.12 because the Ohio judgment of conviction reflected that his offense was a third degree felony. A person commits “criminal trespass” under Ohio law when he or she, “without privilege to do so; ... knowingly enter[s] or remain[s] on the land or premises of another.”
(A) No person, by force, stealth, or deception, shall ...
(2) [without privilege to do so, knowingly enter or remain on the premises of another] in a permanent or temporary habitation of any person when any person is present-or likely to be present, with purpose to commit in the habitation any misdemeanor that is not a theft offense.
II
The definition of “crime of violence” in § 2L1.2 of the Guidelines in 2015 included “burglary of a dwelling” as an enumerated offense, but “burglary” was not defined.
In Taylor, the Supreme Court construed the ACCA
It is clear from Taylor and its progeny that if a statute criminalized only unlawful or unprivileged entry into a building with intent to commit another crime, then such an offense would be “generic burglary” under Taylor’s definition of “burglary.” However, neither Taylor nor subsequent Supreme Court decisions have had occasion to decide definitively when, for purposes of generic burglary, intent must be formed if the offense was “unlawful or unprivileged ... remaining in ... a building or other structure, with intent to commit a crime.”
Bernel-Aveja’s conviction under Ohio law included the elements of “without privilege to do so ... knowingly entering] or remaining]” in a “habitation ... with purpose to commit in the habitation any misdemeanor that is not a theft offense.”
Neither the Supreme Court nor this court has been called upon to examine when the requisite intent to commit a crime must be formed if a statute criminalizes “entry into, or remaining in, a building or other structure, with intent to commit a crime.”
The Supreme Court of Ohio has construed one of Ohio’s burglary statutes
Though the Supreme Court’s decision in Taylor' does not answer the question of when intent to commit a crime must be formed when a “remaining in” statute was the basis of a prior conviction, the Court’s analysis of how and why it arrived upon its generic definition of burglary provides some guidance. The Court began its interpretive process by considering the language of § 924(e), as originally enacted in 1984, and two years later, when it was amended in 1986.
First, the Supreme. Court concluded from the 1984 and 1986 statutory definitions and the legislative history of the subsequent 1986 amendment effectuated by the Career Criminals Act of 1986 that “Congress singled out burglary (as opposed to other frequently committed property crimes such as larceny and auto theft) for inclusion ... because of its inherent potential for harm to persons.”
Second, the Court concluded that “the enhancement provision always has embodied a categorical approach to the designation. of predicate offenses.”
“Third,” the Supreme Court said, “the 1984 definition of burglary shows that Congress, at least at that time, had in mind a modern ‘generic’ view of burglary, roughly corresponding to the definitions of burglary in a majority of the States’ criminal codes.”
The Supreme Court then concluded that “there is nothing in the history to show that Congress intended in 1986 to replace the 1984 ‘generic’ definition of burglary with something entirely different. Although the omission of a preexisting definition of a term often indicates Congress’ intent to reject that definition ... we draw no such inference here.”
The Supreme Court rejected use of the common-law definition of burglary as the definition of that term in § 924(e) for several reasons. , “Most <.. States have expanded this [common-law] definition to include entry without a ‘breaking,’ structures other than dwellings, offenses committed in the daytime, entry with intent to commit a crime other than a felony, etc.”
After considering the history of § 924(e), and rejecting the adoption of the common-law definition of burglary, the Court concluded that “Congress meant by ‘burglary’ the generic sense in which the term is now used in the criminal codes of most States.”
If we were writing on a clean slate, we would consider the Ohio burglary statute at issue in light of these teachings of the Supreme Court when presented with a “remaining in” statute.
III
If the generic definition of burglary in Taylor does not require that the intent to commit a crime be formulated before or at the time of initially remaining in a building unlawfully, then the 1996 Ohio statute has each of the elements of generic burglary formulated in Taylor, as modified by the Guideline’s inclusion of the offense of “burglary of a dwelling.”.Those elements are “an unlawful or unprivileged entry into, or remaining in, a [dwelling
Because the Supreme Court concluded in Taylor that there was no indication “that Congress intended ... to replace” the ACCA’s 1984 statutory definition of “generic” burglary,
The ACCA defined burglary as “any felony consisting of entering or remaining shrreptitiously within a building that is property of another with intent to engage in conduct constituting a Federal or State offense.”
The Supreme Court concluded in Taylor that in the present version of the ACCA, “Congress meant by ‘burglary’ the generic sense in which the term is now used in the criminal codes of most States,”
[t]his common statutory expansion in the definition of burglary makes great sense. A lawful entry does not foreclose the, kind of intrusion burglary is designed to reach, as is illustrated by the case of a bank customer who hides in the bank until it closes and then takes the bank’s money. Moreover, this expan*229 sion forecloses any argument by a defendant found in premises then closed that he had entered -earlier when they were open.72
At least one other academic has concluded that since the time the Model Penal Code was promulgated, “the requirement of entry has become the minority approach. At least twenty-nine jurisdictions have modified the statutory entry requirement to include ‘remaining unlawfully’ or ‘remaining.’ ”
Professor LaFave’s 1986 treatise expressed the view that “remaining in” statutes should not “cover certain other situations in which the unlawful remaining ought not be treated as burglary,” and therefore “it is best to limit the remaining-within alternative to where that conduct is done surreptitiously.”
Similarly, Professor Anderson observed more recently that “a consensual visit that turns ugly might be prosecuted as a burglary” under a statute that includes “remaining in” as an alternative to entry because “the criminal intent may be formed at any time while the defendant remains on the premises and need not have been formed at the time of entry.”
A conclusion that the generic offense of burglary requires that intent to commit a crime exist at the time of entry appears to be out of step with the twenty-nine “remaining in” statutes listed by Professor Anderson, and the twenty-four “remaining in” statutes listed by Professor LaFave at the time of the decision in Taylor, as well as the five other statutes more recently identified in LaFave’s treatise. If, as the Supreme Court concluded in Taylor, “burglary” is “the generic sense in which the term is now [in 1990] used in the criminal codes of most States,”
Judge Higginbotham’s concurring opinion asserts that “the act of ‘remaining in’ occurs at a discrete point in time, and to constitute burglary, the perpetrator must have intended to commit a further crime at that discrete point.”
It is not the prerogative of federal courts to make value judgments as to what
IV
The commentators’ conclusions that a majority of the States had adopted unlawful' “remaining in” statutes and that States having only unlawful entry offenses were in the minority remain accurate with respect to current-day burglary offenses. An analysis of the States’ current statutes, and state court decisions construing them, reflects that the number of States that have, offenses generally falling within a broad (though not necessarily generic) category of “burglary” and that define such an offense only with reference to “entry” onto a premises is slightly in the minority. Other States’ criminal statutes have both unlawful entry and unlawful “remaining in” in the definition of burglary, and some States consider “remaining in” to be a separate offense.
An examination of the Statés’ burglary offenses that define that crime solely with reference to unlawful “entry” reflects that a majority of these statutes require intent to commit a crime other than trespass on the premises at the time of unlawful entry. These statutes include:
Ind. Code Ann. § 35-43-2-1 (West 2012 & Supp. 2016)89
La. Stat. Ann. § 14:62 (2016)90
Md. Code Ann., CRiM. Law § 6-202 (Lex-isNexis 2012 & Supp. 2016)91
Mass. Gen. Laws ch. 266, § 14 (2008)92
MiCH. Comp. Laws § 750.110; § 750.110a (2004 & Supp. 2016)93
*232 Minn. Stat. Ann. § 609.582 (West 2009)94
Miss. Code. Ann. § 97-17-28 (2014)95
Neb. Rev. St. § 28-507 (2008)96
Nev. Rev. Stat. § 205.060; § 205.065 (2015)97
N.J. Stat. Ann. § 20:18-2(1) (West 2015)98
N.M. Stat. Ann. § 30-16-3 (2004)99
N.C. Gen. Stat. § 14-51 (2015)100
Okla. Stat. tit. 21, § 1431 (2015)101
18 Pa. Stat. and Cons. Stat. Ann. § 3502 (West 2015)102
*233 11 R.I. Gen. Laws § 11-8-1 (2002)103
S.C. Code Ann. § 16-11-812 (2015)104
Tenn. Code Ann. § 39-14-402(a)(i) (2014)
Tex. Penal Code Ann. § 30.02(a)(1) (West 2011)105
Wis. Stat. Ann. § 943.10 (West 2005)106
Some of the foregoing offenses may not constitute “generic” burglary because they are overly inclusive as to the type of premises on which a generic burglary may occur. For example, the Louisiana offense cited above includes theft from a vehicle,
A few state statutes define a burglary offense as involving only “entry” with intent to commit a crime at the time of entry or the commission of a crime after entry, but they do not require unlawful or unprivileged, entry. They therefore do not appear to include generic burglary. Such statutes include:
Cal. Penal Code § 459 (West 2010)109
Idaho Code § 18-1401 (2016)110
Nev. Rev. Stat. § 205.060 (2015)111
11 R.I. Gen. Laws § 11-8-3 (2002)112
*234 W. Va. Code ANN. § 61-3-11 (LexisNexis 2014)113
A few other state burglary offenses are defined as involving “entry” without consent, but they do not require intent to commit another crime at the time of entry. Intent to commit a crime may be formed after unlawful entry, and therefore they do not-constitute generic burglary. These statutes appear to include:
Minn. Stat. Ann. § 609.582 (West 2009)114
Tenn. Code Ann, § 39-14-402(a)(3) (2014)115
Tex. Penal Code Ann. § 30.02(a)(3) (West 2011)116
Some state “unlawful entry or ‘remaining in’ ” statutes appear to have been construed to set forth two divisible offenses and, when only unlawful entry is charged, to require intent at the time of unlawful entry. If we treat these statutes as setting forth separate offenses, then they should logically be included in the analysis of “entry” offenses. These' statutes appear to include:
Conn. Gen. Stat. Ann. § 53a-101 (West 2012)117
720 Ill. Comp. Stat. 5/19-1 (West 2003)118
N.Y. Penal Law § 140.20 (McKinney 2010)119
Ala. Code § 13A-7-5 (2008 & Supp. 2012)121
Colo. Rev. Stat. Ann. § 18-4-202 (West 2013)122
Fla. Stat. Ann. § 810.02(l)(b)(2) (West 2007 & Supp. 2016)123
*236 Ga. Code Ann. § 16-7-1 (2011 & Supp. 2016)124
720 III. Comp. Stat. 5/19-1 (West 2003)125
Iowa Code Ann. § 713.1 (West 2016)126
Kan. Stat. Ann. § 21-5807 (2007 & Supp. 2015)127
Ky. Rev. Stat. Ann. § 511.020 (LexisNexis 2014)128
Me. Rev. Stat. Ann. tit. 17-A, § 401 (2006*237 & Supp. 2015)129
Mo. Rev. Stat. § 569.160 (2016)130
Ohio Rev. Code Ann. §§ 2911.12, 2911.21(A)(1) (West 2006 & Supp. 2016)131
Utah Code Ann. § 76-6-202 (LexisNexis 2012)132
Wash. Rev. Code § 9A.52.020 (2015)133
Another unlawful entry or remaining in statute permits a conviction for burglary when the entry was unlawful but intent to commit a crime on the premises was formed after the unlawful entry: S.D. Codified Laws § 22-32-1 (2006).
Accordingly, at least fourteen States currently have “remaining in” offenses that do not have as an element the timing requirement advocated by Judge Higginbotham’s concurring opinion. The state offenses that do have such an element aré few in number.
At least one state statute provides that intent to commit a crime on the premises
Alaska Stat. § 11.46.310 (2014)135
Ask. Code Ann. § 5-39-201 (2013)136
Conn. Gen. Stat. Ann, § 53a-101 (West 2012)137
Haw, Rev. Stat. Ann. § 708-810 (Lexis-Nexis 2016)138
N.Y. Penal Law § 140.20 (McKinney 2010)139 ...
OR. Rev. Stat. § 164.215 (2015)140
“Remaining in” statutes that appear to be broader than generic burglary because a shoplifter can be convicted include:
Ariz. Rev. Stat, Ann. § 13-1507 (2010)146
Va. Code Ann. § 18.2-90 (2014)147
Del. Code Ann. tit. 11, § 824 (2015)
Mont. Code Ann. § 45-6-204 (2014)148
N.H. Rev. Stat. Ann. § 635:1 (2016)
N.D. Cent. Code § 12.1-22-02 (2012)
Tenn. Code Ann. § 39-14^402(a)(2) (2014)
Tex. Penal Code Ann. § 30.02(a)(2) (West 2011)
Wyo. Stat. Ann. § 6-3-301 (2015)
Analysis of the current state “remaining in” burglary statutes reflects that very few of them require that intent to commit a crime on the premises be formed prior to or at the time of the unlawful remaining in the premises. It also cannot be said that a majority of the States have adopted “remaining in” statutes that require a jury to decide unanimously whether the defendant entered unlawfully or remained unlawfully.
V
The Sixth and Eighth Circuits have held, without discussing the timing of intent, that violations of the same Tennessee statute at issue in Herrera-Montes
In United States v. Bonilla, the Fourth Circuit held that a conviction under Texas Penal Code section 30.02(a)(3) qualified as “burglary of a dwelling” under § 2L1.2 of the Guidelines.
In Bonilla, The Fourth Circuit also considered the defendant’s argument that “a homeless person who unlawfully enters a home only to seek warmth, but while inside, forms an intent to steal” would pres
The Sixth Circuit has held that a conviction under the Tennessee statute
The Eighth Circuit’s decision in McAr-thur seems to conflict with a decision from that Circuit four months earlier in United States v. Pledge, which also involved the ACCA,
In Pledge and Eason, the Eighth Circuit considered the same Tennessee statutes that were at issue in our court’s decision in Herrera-Montes.
The Ninth Circuit has held that “Taylor allows for burglary convictions so long as the defendant formed the intent to commit a crime while unlawfully remaining on the premises, regardless of the legality of the entry.”
As can be seen, there is a division among the Circuit Courts as to the elements of generic burglary. There is no unanimity as to when the intent to commit a crime on the premises must be formed.
VI
Bernel-Aveja contends that this court’s decision in Herrera-Montes
Another decision of our court, though unpublished, observed that when a “remaining in” statute is at issue, requiring intent to commit a crime at the time of entry would be inconsistent with Taylor ⅛ formulation of generic burglary.
However, to be clear, we did not have a “remaining in” statute before us in Herr-eras-Montes. The statute criminalized only unlawful entry, providing: “A person commits burglary who, without the effective consent of the property owner ... [e]nters a building and commits or attempts to commit a felony, theft, or assault.”
Today, Judge Higginbotham’s concurring opinion implies, if not states, that the statute before us in Herrera-Montes was a “remaining in” statute.
* * *
Only the Supreme Court can resolve the split among the Circuit Courts as to when formation of intent for purposes of generic burglary must occur. But until the Supreme Court speaks, whether a conviction under Ohio’s unlawful entry or remaining in statute is a generic burglary offense, and relatedly, what the generic offense of burglary by unlawfully remaining in requires with regard to when intent must be formed, are important questions that our court should decide en banc.
. See U.S. Sentencing Guidelines Manual app. C, amend. 802, at 149-50 (U.S. Sentencing Comm’n 2016).
. 18 U.S.C. § 924(e).
. See 8 U.S.C. § 1101(a)(43)(G).
. 490 F.3d 390 (5th Cir. 2007).
. 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (“We conclude that a person has been convicted of burglary for purposes of a § 924(e) enhancement if he is convicted of any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.”).
. See infra Part III.
. See Herrera-Montes, 490 F.3d at 391-92.
. See infra Parts III and IV.
. See, e.g., Taylor v. United States, 495 U.S. 575, 592, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ("We think that 'burglary' in § 924(e) must have some uniform definition independent of the labels employed by the various States’ criminal codes.”).
. See id. at 598, 110 S.Ct. 2143 ("Congress meant by ‘burglary’ the generic sense in which the term is now used in the criminal codes of most States.”); see also id. at 589, 110 S.Ct. 2143 (“[T]he 1984 definition of burglary shows that Congress, at least at that time, had in mind a modern 'generic' view of burglary, roughly corresponding to the definitions of burglary in a majority of the States' criminal codes.”).
. See, e.g., Gonzales v. Duenas-Alvarez, 549 U.S. 183, 190, 195-96, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) (listing States’ statutes to confirm the generic meaning of theft); Scheidler v. National Organization for Women, Inc., 537 U.S. 393, 410, 123 S.Ct. 1057, 154 L.Ed.2d 991 (2003) ("In Taylor, ... we concluded that in including ‘burglary’ as a violent crime in 18 U.S.C. § 924(e)’s sentencing enhancement provision for felons' possessin
. See Infra Part IV.
. See ante at p. 217.
. See infra Part V.
. See United States v. Bonilla, 687 F.3d 188, 192-93 (4th Cir. 2012).
. See United States v. Reina-Rodriguez, 468 F.3d 1147, 1155-56 (9th Cir. 2006), overruled on other grounds by United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (citing Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)).
. See U.S. Sentencing Guidelines- Manual app. C, amend. 802, at 155 (U.S. Sentencing Comm’n 2016)
First, the Commission has received significant comment over several years from courts and stakeholders that the ‘categorical approach’ used to determine the particular level of enhancement under the existing guideline is overly complex and resource-intensive and often leads to litigation and uncertainty. The existing guideline’s single specific offense characteristic provides for enhancements of between 4 levels and 16 levels, based on the nature of a defendant’s most serious conviction that occurred before the defendant was ‘deported’ or 'unlawfully remained in the United States,’ Determining whether a predicate conviction qualifies for a particular level of enhancement requires application of the categorical approach to the*222 penal statute underlying the prior conviction. See generally Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (establishing the categorical approach). Instead of the categorical approach, the amendment adopts a much simpler sentence-imposed model for determining the applicability of predicate convictions. The level of the sentencing enhancement for a prior conviction generally will be determined by the length of the sentence -imposed for the prior offense, not by the type of offense for which the defendant had been convicted.
. U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A) cmt. n.l(B)(iii) (U.S, Sentencing Comm'n 2014)
'Crime of violence’ means any of the following offenses under federal, state, or local law: murder, manslaughter, kidnapping, aggravated assault, -forcible, sex offenses (including where consent, to the conduct is not given , or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced), statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.
. Ohio Rev. Code Ann. § 2911.12 (West 1990) (amended July 1, 1996).
. Id.
. Id. § 2911.21(A)(1).
. U.S, Sentencing Guidelines Manual § 2L1.2 cmt. n.l(l)(B)(iii) (U.S, Sentencing Comm’n 2014).
. United States v. Ortega-Gonzaga, 490 F.3d 393, 395 (5th Cir. 2007) (referring to Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), but recognizing that in United States v. Murillo-Lopez, 444 F.3d 337, 344 (5th Cir. 2006), it "ma[de] sense” to “extend[] the definition of ‘burglary of a dwelling’ under the Guidelines to include things like tents, which the Court in Taylor implicitly excluded in defining ‘burglary’ ... given that the court in Murillo-Lopez was called to define the ‘of a dwelling' part of 'burglary of a dwelling' ”).
. See United States v. Hernandez-Hernandez, 817 F.3d 207, 212 (5th Cir. 2016) (citing Taylor, 495 U.S. at 602, 110 S.Ct. 2143).
. 18 U.S.C. § 924(e).
. Taylor, 495 U.S, at 598, 110 S.Ct. 2143 ("We believe that Congress meant by ‘burglary’ the generic sense in which the term is now used in the criminal codes of most States,’’).
. Id.; see also id, at 599, 110 S.Ct. 2143 (“We conclude that a- person has been convicted of burglary ,if he is convicted of any crime, regardless of its exact definitions or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.”),
. Id. at 591, 110 S.Ct. 2143.
. Mathis v. United States, — U.S. —, 136 S.Ct. 2243, 2248-49, 195 L.Ed.2d 604 (2016) (citing Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2283-84, 186 L.Ed.2d 438 (2013)).
. Taylor, 495 U.S. at 598, 110 S.Ct. 2143.
. Ohio Rev. Code Ann. § 2911.12 (West 1990) (amended July 1, 1996), and id. § 2911.21(A)(1).
. Taylor, 495 U.S. at 598, 110 S.Ct. 2143.
. Id.
. Ohio Rev. Code Ann. § 2911.11(A) (West 2006 & Supp. 2016).
. State v. Fontes, 87 Ohio St.3d 527, 721 N.E.2d 1037, 1040 (2000).
. Compare Ohio Rev. Code Ann. § 2911.11(A)(1) (West 2006 & Supp. 2016) ("No person, by force, stealth, or deception, shall trespass in an occupied structure ... when another person other than an accomplice of the offender is present, with purpose to commit in the structure ... any criminal offense....”) with Ohio Rev. Code Ann. § 2911.12(A)(2) (West 1990) ("No person, by
. Taylor v. United States, 495 U.S. 575, 581— 82, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (citing Armed Career Criminal Act of 1984, Pub. L. 98-473, § 180, 398 Stat. 2185 (repealed 1986) and Firearms Owners’ Protection Act, Pub. L. 99-308, § 104, 100 Stat. 458 (1986)).
. Id. at 581, 110 S.Ct. 2143 (quoting § 1803, 98 Stat. at 2185 (repealed 1986)).
. See id. at 582, 110 S.Ct. 2143 (quoting § 104, 100 Stat. at 458).
. See id. (citing Career Criminals Amendment Act of 1986, Pub. L. 99-570, § 1402, 100 Stat. 3207-39).
. Id. at 588, 110 S.Ct. 2143.
. Id.
. Id.
. Id.
. Id.
. ' Id.
. Id.; cf. Descamps v. United States, — U.S. —, 133 S.Ct 2276, 2287, 186 L.Ed.2d 438 (2013) ("Congress ... meant [the ACCA] to function as an on-off switch, directing that a prior crime would qualify as a predicate offense in all cases or in none.”).
. Taylor, 495 U.S. at 589, 110 S.Ct. 2143 (1990).
. Id.
. Id. at 590, 110 S.Ct. 2143.
. Id. at 593, 110 S.Ct. 2143.
. Id.
. Id. at 598, 110 S.Ct. 2143.
. Id. (quoting W. LaFave & A. Scorr, Substantive Criminal Law § 8.13(a), (c), (e) (1986)).
. Id. at n.8.
. Model Penal Code § 221.1 (Am. Law. Inst. 1980).
. Taylor, 495 U.S. at 598, 110 S.Ct. 2143..
. Id.
. Id. at 599, 110 S.Ct. 2143.
. U.S. Sentencing Guidelines Manual § 2L1.2 cmt. n.1(B)(iii) (U.S. Sentencing Comm'n 2014).
. Taylor, 495 U.S. at 598, 110 S.Ct. 2143.
. Id. at 590, 110 S.Ct. 2143.
. Id. at 598, 110 S.Ct. 2143.
. Armed Career Criminal Act of 1984, Pub. L. No. 98-473, § 1803, 98 Stat. -2185 (repealed 1986).
. Ohio Rev. Code Ann. § 2911.12 (West 1990) (amended July 1, 1996).
. Taylor, 495 U.S. at 598, 110 S.Ct. 2143.
. Id. at 598 & n.8, 110 S.Ct. 2143.
. W. Lafave & A, Scott, Substantive Criminal Law § 8.13(b) (1986).
. Id. n.44.
. See Ohio Rev. Code Ann. § 2911.21(A)(1) (West 1990) (amended July 1, 1996) (providing that a person commits "criminal trespass” under Ohio law when she, "without privilege to do so, ... [kjnowingly enterfs] or remain[s] on the land or premises of another”).
. 3 W. LaFave, Substantive Criminal Law § 21.1(b) n.47 (2d ed.) (2016) (citing Ala. Code § 13a-7-5; Alaska Stat. § 11.46.300; Ariz. Rev. Stat. Ann. § 13-1506; Ark. Code Ann. § 5-39-201; Colo. Rev. Stat. Ann. § 18-4-202; Conn. Gen. Stat. Ann. § 53a-101; Del. Code Ann. Tit. II, § 824; Fla. Stat. Ann. § 810.02; Ga. Code Ann. § 16-7-1; Haw. Rev. Stat, § 708-810; 720 III. Comp. Stat. Ann. 5/19-1; Iowa Code Ann, § 713.1; ICan. Stat. Ann. § 21-5807; Ky. Rev. Stat. Ann. § 511.020; Me. Rev. Stat. Ann. tit. 17-A, § 401; Mo. Ann, Stat. § 569.160; Mont. Code Ann. § 45-6-204; N.H. Rev. Stat. Ann. § 635.1; N.J. Stat. Ann. § 2c:18-2; N.D. Cent. Code § 12.1-22-02; Or. Rev. Stat. § 164.215; S.D. Codified Laws § 22-32-1; Tenn. Code Ann. § 39-14-402;- Tex. Penal Code Ann. § 30.02; Utah Code Ann. § 76-6-202; Vt. Stat. Ann. Tit. 13, § 1201; Va. Code Ann. § 18.2-89; Wash. Rev. Code § 9a.52.020; Wyo. Stat. Ann. § 6-3-301).
. W. LaFave & A. Scott, Substantive Criminal Law § 8.13(b) (1986).
. Helen A. Anderson, From the Thief in the Night to the Guest Who Stayed Too Long: The Evolution of Burglary in the Shadow of the Common Law, 45 Ind. L. Rev. 629, 645 & n.113 (2012).
. Id. at 646.
. W. LaFave & A. Scott, Substantive Criminal Law § 8.13(b) (1986).
. Id. n.47.
. Id. n.48 (citing Model Penal Code § 221.1 (Am. Law Inst. 1980); Fla. Stat. Ann. § 810.02; N.J. Stat. Ann. 2C:18-2).
. See Model Penal Code § 221.1 (Am. Law Inst. 1980) ("A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with purpose to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.”).
. N.J, Stat. Ann. § 2C:18-2 (West 1981), which provided;
A person is guilty of burglary if, with purpose to commit an offense therein he:
(1) Enters a structure, or a separately secured or occupied portion thereof, unless the structure was at the time open to the public or the actor is licensed or privileged to enter; or
(2) Surreptitiously remains in a structure or a separately secured or occupied portion thereof knowing that he is not licensed or privileged to do so.
. Helen A. Anderson, From the Thief in the Night to the Guest Who Stayed Too Long: The Evolution of Burglary in the Shadow of the
. Id. 645-46, 645 n.113, 646 nn.114 & 116.
. Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).
. See ante at p. 215.
. See ante at p. 218.
. See ante at p. 217.
. See Taylor, 495 U.S. at 598, 110 S.Ct. 2143.
. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 190, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007).
. Taylor, 495 U.S. at 598, 110 S.Ct. 2143.
. See Richards v. State, 681 N.E.2d 208, 212 (Ind. 1997) (explaining that “the State had to prove that when [the defendant] entered the building he had the intent to commit rape”).
. See State v. Jones, 426 So.2d 1323, 1325 (La, 1983) (“The defendant must have had the specific intent to commit either a felony or a theft at the time of his unauthorized entry, both for the crimes of simple burglary and attempted simple burglary.”).
. See Walls v. State, 228 Md.App. 646, 142 A.3d 631, 652 (Md. Ct. Spec. App. 2016) ("Maryland’s statutory' offense of burglary in the first degree is 'akin to common law burglary, without the element of in the night-tíme.’ It requires proof that a defendant (1) broke into the dwelling of another; and (2) did so with the intent to commit theft or a crime of violence.”) (citations omitted).
. See Commonwealth v. Negron, 462 Mass. 102, 967 N.E.2d 99, 105 (2012) (“The elements of aggravated burglary are: (1) the defendant broke into and entered the dwelling of. another; (2) the breaking ’and entering occurred at night; (3) at the time of the breaking and entering the defendant intended to commit a felony....”).
. See People v. Cornell, 466 Mich. 335, 646 N.W.2d 127, 141 (2002) ("The elements of breaking and entering with intent to commit larceny are: (1) the defendant broke into a building, (2) the defendant entered the building, and (3) at the time of the breaking and entering, the defendant intended to commit a larceny therein,”).
. The statute provides; “Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice, commits burglary in the first degree.” (emphasis added). See also State v. Davis, 864 N.W.2d 171, 177 (Minn. 2015) (agreeing that when the defendant did not commit the underlying crime, a jury instruction was erroneous when it “permitted the jury to find him guilty of felony murder if the jury determined that he formed an intent to commit the theft after entering the building, even if he did not actually commit a theft”),
. See Cortez v. State, 876 So.2d 1026, 1030 (Miss. Ct. App. 2003) (“The State seldom has direct and positive testimony expressly showing the specific intent of an intruder at the time he unlawfully breaks into a dwelling house; however, such testimony is not essential to establish the intent to commit a crime.”).
. The statute provides: “A person commits burglary if such person willfully, maliciously, and forcibly breaks and enters any real estate or any improvements erected thereon with intent to commit any felony or with intent to steal property of any value.” See also State v. Carter, 205 Neb. 407, 288 N.W.2d 35, 36 (1980) ("The crime of burglary is complete when there is a breaking and entering with a requisite intent, in this instance, to steal.”).
. Though section 205.060 does not require an unlawful entry, section 205.065 provides for an inference of felonious intent at the time of entry if the entry is unlawful. See Sheriff, Clark Cty. v. Stevens, 97 Nev. 316, 630 P.2d 256, 257 (1981) ("The offense of burglary is complete when the house or other building is entered with the specific intent to commit larceny or any felony therein.”).
. See N.J. Stat. Ann. § 2C:18-2 (West 2015):
A person is guilty of burglary if, with purpose to commit an offense therein or thereon he:
(1) Enters a research facility, structure, or a separately secured or occupied portion thereof unless the structure was at the time open to the public or the actor is licensed or privileged to enter; ....
See also State v. Jijon, 264 N.J.Super. 405, 624 A.2d 1029, 1030 (1993) (“It is now well established that burglary is complete upon entry with purpose of committing an offense.”), aff'd, 135 N.J. 471, 640 A.2d 1152 (1994).
. See State v. Jennings, 102 N.M. 89, 691 P.2d 882, 885 (N.M. Ct. App. 1984) ("Burglary is a specific intent crime. It requires an unauthorized entry with the intent to commit any felony or theft therein.... An unauthorized presence in a structure is evidence from which a jury could reasonably infer the necessary intent to commit a felony or theft therein.”) (citations omitted).
. See State v. Montgomery, 341 N.C. 553, 461 S.E.2d 732, 739 (1995) ("If at the time of a breaking and entering a person does not possess the intent to commit a felony therein, he may only properly be convicted of misdemeanor breaking or entering, a lesser included offense of first-degree burglary.”).
. See Rowland v. State, 817 P.2d 263, 265-66 (Okla. Crim. App. 1991) ("To warrant conviction for Burglary in the First Degree ... it is necessary for the [defendant] to have the intent to commit a crime at the time of his unlawful entry of the dwelling.”).
. See Commonwealth v. Russell, 313 Pa.Super. 534, 460 A.2d 316, 321 (1983) (“In order to be convicted of burglary, the defendant must have formed the intent to commit a crime when he entered the victim's residence, not after he entered.... The entry must be contemporaneous with the intent to commit a crime therein.”) (citation omitted). A recently enacted revision of the statute does not alter the intent requirement. See 2016 Pa. Legis. Serv. Act 2016-158 (S.B. 1062).
. See State v. Contreras-Cruz, 765 A.2d 849, 852 (R.I. 2001) (holding that this provision "incorporates the common law definition of the crime,” which "is the breaking and entering the dwelling-house of another in the nighttime with the intent to commit a felony therein,' whether the felony be actually committed or not.”) (quoting State v. Hudson, 53 R.I. 229, 165 A. 649, 650 (1933)).
. See Pinckney v. State, 368 S.C. 502, 629 S.E.2d 367, 369 (2006) ("Further, there is no requirement that the intent element is satisfied only by proving an intent to commit .the specific crime that is charged in the indictment as an aggravating circumstance. The only requirement is that there be intent to commit any crime at the time of . entry.”).
. See Devaughn v. State, 749 S.W.2d 62, 65 (Tex. Crim. App. 1988) (en banc) ("It is well settled that the intent to commit a felony or theft must exist at the moment of the entry or there is no offense under § 30.02(a)(1).”).
. See Levesque v. State, 63 Wis.2d 412, 217 N.W.2d 317, 319 (1974) ("To constitute the crime of burglary under sec. 943.10(l)(a), one must enter the building without the consent of the person in possession. Concurrently with the entry he must have the intention to steal or commit a felony.”).
. See La. Stat. Ann. § 14:62 (2016).
. See Neb. Rev. St. § 28-507 (2008).
. See Taylor v. United States, 495 U.S. 575, 591, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (noting that “California defines ‘burglary’ so broadly as to include shoplifting and theft of goods from a ‘locked’ but unoccupied automobile”).
. The statute provides: "Every person who enters any [enumerated structure] with intent to commit any theft or any felony, is guilty of burglary.” See also State v. Rawlings, 159 Idaho 498, 363 P.3d 339, 342 (2015) (burglary requires only "entry with the intent to steal anything he finds that he might desire to appropriate”).
. See Sheriff, Clark Cty. v. Stevens, 97 Nev. 316, 630 P.2d 256, 257 (1981) ("The offense of burglary is complete when the house or other building is entered with the specific intent to commit larceny or any felony therein.”).
. The statute provides: “Every person who, with intent to commit [an enumerated felony], shall enter any dwelling house or apartment at any time of the day or night, or who with such intent shall, during the daytime, enter any other building, or ship or vessel, shall be [punished by fine and/or imprisonment].”
. The statute provides: "If any person shall, in the nighttime, break and enter, or enter without breaking, or shall, in the daytime, break and enter, the dwelling house, or an outhouse adjoining thereto or occupied therewith, of another, with intent to commit a crime therein, he shall be deemed guilty of burglary.” (emphasis added).
. The statute provides: "Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice, commits burglary in the first degree.” (emphasis added).
. The statute provides: “A person commits burglary who, without tire effective consent of the properly owner: ... Enters a building and commits or attempts to commit a felony, theft or assault.”
. The statute provides; "A person commits an offense if, without the effective consent of the owner, the person: ... enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.” See also Rivera v. State, 808 S.W,2d 80, 92 (Tex. Crim. App. 1991) (en banc) ("The State need neither plead nor prove a burglar’s intent to commit a felony or theft upon entry under (a)(3)....”).
. See State v. Edwards, 10 Conn.App. 503, 524 A.2d 648, 652-53 (1987) (holding that failure to instruct the jury that it needed to agree on whether defendant entered unlawfully or unlawfully remained would have been error if the state had presented evidence of unlawful remaining and unlawful entry (i.e. that entry had been lawful) because the two , types of burglary recognized are conceptually different actions); State v. Belton, 190 Conn. 496, 461 A.2d 973, 976 (1983) (explaining that "to remain unlawfully contemplates an initial legal entry which becomes unlawful at the time that the actor’s right, privilege or license to remain is extinguished”).
.See People v. Boose, 139 Ill.App.3d 471, 94 Ill.Dec. 211, 487 N.E.2d 1088, 1090 (1985) (overturning a conviction when the defendant, who entered a store during business hours,' fell asleep, awoke after hours, and was in possession of store merchandise,' was charged only with illegal entry, explaining that "the statute states the offense in the alternative: a defendant commits burglary of a building either by illegal entry or by illegally .remaining” and when the state charges only burglary by illegal entry, “the State has the burden of showing that Boose entered [the building] both without authority and with the intent to steal”); People v. Boone, 217 Ill. App.3d 532, 160 Ill.Dec. 463, 577 N.E.2d 788, 789 (1991) ("To sustain a conviction for burglary, the State is required to prove either (1) the defendant entered the building without authority and with the intent to commit a felony or theft, or (2) he remained within the building without authority and with the intent to commit a felony or theft.”).
. See People v. Gaines, 74 N.Y.2d 358, 547 N.Y.S.2d 620, 546 N.E.2d 913, 914 (1989) (addressing whether, in a case of unlawful entry, "the jury should have been instructed that they must find defendant’s intent to commit a crime in the building existed at the time of the entry,” or whether such an instruction was unnecessary "because the 'remains unlawfully' element of the statute means that such an intent may be formed after defendant’s unlawful entry” and concluding that the New York statute “requires that intent to commit a crime in the building exist at the time of the unlawful entry”),
; See Mathis v. United States, — U.S. —, 136 S.Ct. 2243, 2249-2250, 195 L.Ed.2d 604 (2016) (explaining the difference between "divisible” statutes and "alternative means” statutes).
, See Gratton v. State, 456 So.2d 865, 872 (Ala. Crim. App. 1984) (observing that a jury instruction that intent must be formed at the time of entry was properly refused as an incomplete statement of current Alabama law, explaining that while "[p]rior to the adoption of Alabama’s new Criminal Code, the statutory crime of burglary in the first degree (§ 13-2-40) required that the intent to steal or to commit á felony be concurrent with the brealdng and entering,” under the current code, "the intent to commit a crime may be concurrent with the unlawful entry or it may be formed after the entry and while the accused remains unlawfully”).
. The statute provides; "A person commits first degree burglary if the person knowingly enters unlawfully, or remains unlawfully after a lawful or unlawful entry, in a building or occupied structure with intent to commit therein a crime....” See also People v. Bondurant, 296 P.3d 200, 214 (Colo. App. 2012) (holding that, under current law "to commit .first degree burglary a person had to “knowingly enter[] unlawfully, or remain[] unlawfully after a lawful or unlawful entry, in a building or occupied structure with intent to commit therein a crime” and overruling a prior case that had "require[d] proof that the defendant intended to commit a crime inside at thé moment he first became a trespasser”) (citing Cooper v. People, 973 P.2d 1234, 1241 (Colo. 1999)); id. (“We agree with other divisions of this court that the 1999 amendments legislatively overruled Cooper with respect to the intent element of burglary.”) (citing People v. Oram, 217 P.3d 883, 892 (Colo. App. 2009) ("Intent to commit a crime against another person or property while in the dwelling can be formed either before or after the unlawful entry”), aff’d on other grounds, 255 P.3d 1032 (Colo. 2011); People v. Larkins, 109 P.3d 1003, 1004 (Colo. App. 2004); People v. Wartena, 296 P.3d 136, 140 (Colo. App. 2012)).
.State v. Herron, 70 So.3d 705, 707 (Fla. Dist. Ct. App. 2011) (affirming burglary conviction even though defendant had not entered unlawfully but was, asked to leave and refused, and only subsequently formed intent to commit assault, reasoning that "[a]lthough at first [the defendant] only remained in the : apartment with a mere suspicion that [the occupant]’s boyfriend was in the apartment,
. See Williams v. State, 268 Ga.App. 384, 601 S.E.2d 833, 836 (2004) (upholding a conviction in a case in which the defendant both entered and remained in without consent, reasoning that "[b]ecause the evidence supported the jury’s conclusion that [the defendant] assaulted Markell with a knife in Allen’s house, it was authorized to determine that at some point before he entered the house or while he remained in it, he intended to commit the aggravated assault”) (internal quotation omitted) (footnote omitted); see also id. at 836 ("The intent necessary for commission of burglary ... need not be formed at the precise moment of entry, but can be formed thereafter while the perpetrator is remaining on the premises.”) (internal quotation omitted) (footnote omitted).
. See People v. Boose, 139 Ill.App.3d 471, 94 Ill.Dec. 211, 487 N.E.2d 1088, 1090 (1985) (suggesting in a case in which the defendant was charged only with illegal entry, that conviction could have been upheld had he been charged under the "remaining in” prong of the statute, even if there was no evidence that his intent to steal merchandise from a store was formed before he awoke in a closet after the store had closed, observing that while “[a] criminal intent formulated after a lawful entry will satisfy the offenses of larceny (retail theft) or burglary by illegally remaining, [it] will not ... satisfy the offense of burglary by illegal entry”).
. See State v. Dible, 538 N.W.2d 267, 270-71 (Iowa 1995) (rejecting the defendant’s argument that the decision to remain over and the formation of an intent to assault had to occur contemporaneously, explaining that that the defendant’s "decision to remain may have begun when he refused to comply with [the occupants’] request that he leave, but it remained intact from the time he returned to the kitchen up until the time he left [the occupants’] home” and that "[b]ecause he also formed an intent to assault when he returned to the kitchen, [he] satisfied the statute’s contemporaneous intent requirement; he was remaining over and doing so with the intent to commit an assault” and citing with approval John L. Yeager & Ronald L. Carlson, 4 Iowa Practice, Criminal Law & Procedure § 294 (1979) ("[W]ill the [S]tate have to prove that [the defendant] formed the necessary intent at the time his presence in the place became unlawful, or will it be sufficient to prove that at some time while he was unlawfully present he formed the intent ... to commit an assault? The [statutory] language suggests the latter.”)).
. See State v. Gutierrez, 285 Kan. 332, 172 P.3d 18, 22 (2007) ("Remaining within refers to a defendant’s presence in the building’s interior after any entering into, authorized or unauthorized, has been accomplished.”); id. at 23 ("[T]he intent to commit a felony and the unauthorized entering into or remaining within must at some point in time coexist") (emphasis added); State v. Frierson, 298 Kan. 1005, 319 P.3d 515, 522 (2014) (holding that unanimity of the jury as to the means, entering or remaining within, by which the crime is committed is not required, but the state must present sufficient evidence to permit a jury to find each means beyond a reasonable doubt).
. See McCarthy v. Commonwealth, 867 S.W.2d 469, 471 (Ky. 1993) (holding, in a case in which the defendant unlawfully entered by kicking down the door after being denied entry but argued he entered the house only to "confer with his wife,” and did not intend an assault upon entry, that the defendant "may be convicted of the crime of burglary providing the jury finds that he knowingly entered the building with intent to commit a crime or that he remained unlawfully in the building with intent to commit a crime” and that "even if one believes that appellant did not have the requisite intent as he entered the house, one could surely believe he subsequently formed the intent necessary to be guilty of the crime of burglary”).
. See State v. Harding, 392 A,2d 538, 541 n.2 (Me. 1978) (concluding, in a case involving only unlawful entry, that there- was no obvious error in an instruction to the jury that "[i]f a person surreptitiously remains, once having gained entrance, ... knowing he is not licensed to be there, and formulates the intent after surreptitiously remaining in there, .'.. he can have the intent at that time”).
. See State v. Rollins, 882 S.W.2d 314, 317-18 (Mo. Ct. App. 1994) (upholding conviction of defendant charged only with unlawfully remaining in, despite concluding that he also entered unlawfully by obtaining entrance through artifice, reasoning that "[sjince defendant was not licensed to enter the apartment [because he gained admission by artifice], he was likewise not licensed to remain there”). Missouri has redrafted the statute effective January 2017, but the changes are primarily cosmetic (changing "crime” to “offense” and "he” to "he or she.” The substance of the statute remains the same. Mo. Rev. Stat. § 569.160 (2016 & Supp. 2016).
. See State v. Fontes, 87 Ohio St.3d 527, 721 N.E.2d 1037, 1040 (2000) (holding that "a defendant may form the purpose to commit a criminal offense at any point during the course of a trespass”).
. See State v. Rudolph, .970 P.2d 1221, 1228-29 (Utah 1998). The court rejected the argument that the "remaining unlawfully” provision was only intended to reach "those cases where the actor initially enters a building lawfully but then remains there after his or her right to do so has expired for purposes of committing a crime,” stating that
While this may be true, it does not necessarily follow that the "remaining unlawfully" provision is confined to those situations where the initial entry was lawful. We believe that such an interpretation would create an anomalous result. For instance, under Rudolph’s interpretation of the statute, one who enters lawfully but then remains unlawfully and forms the intent to commit another felony, theft, or assault is guilty of burglary while one who enters unlawfully and thereafter forms that same intent is guilty only of trespass. We are unable to see the distinction between the two scenarios. In our view, the actor in the second scenario is at least as dangerous and culpable as the actor in the first. Therefore, we are not satisfied that our legislature intended such a result when it enacted our current burglary statute.... [W]e hold that a person is guilty of burglary ... if he forms the intent to commit a felony, theft, or assault at the time he unlawfully enters a building or at any time thereafter while he continues to remain there unlawfully.
. See State v. Allen, 127 Wash.App. 125, 110 P.3d 849, 854 (2005) (expressing agreement with the Supreme Court of Utah’s analysis in Rudolph, 970 P.2d at 1229).
, See State v. DeNoyer, 541 N.W.2d 725, 732 (S.D. 1995) (holding, where evidence indicated that defendant entered without permission and raped an occupant and where there was no evidence of permission to enter, defendant was not entitled to an instruction "that in order to be found guilty of burglary, he must have had the intent to .rape the victim when he entered her home" because “the current burglary statute simply requires that the person remain in the structure after forming the intent to commit a crime”).
. See Pushruk v. State, 780 P.2d 1044, 1048 (Alaska Ct. App. 1989) (staling in dicta when only unlawful entry was at issue that "to find a defendant guilty of burglary, the state must show the defendant had the intent to commit an additional crime at the time his presence on the premises first became unlawful, i.e., at the time that he first trespassed, entered or remained unlawfully on the premises”).
. See Holt v. State, 2011 Ark. 391, 384 S.W.3d 498, 505 (2011) (observing that even if the defendant had been invited into the dwelling, “he certainly was not privileged to remain there once he began telling [the, victim] ‘I told you I could get in anytime I wanted to and ‘if I can’t have you, no one can’ and stabbing her”).
. See State v. Edwards, 10 Conn.App. 503, 524 A,2d 648, 652-53 (1987) (holding that failure to instruct the jury that it needed to agree on whether defendant entered unlawfully or unlawfully remained would have been error if the state had presented evidence of unlawful remaining and unlawful entry because the two types of burglary recognized are conceptually different actions); State v. Belton, 190 Conn. 496, 461 A.2d 973, 976 (1983) (explaining that "to remain unlawfully contemplates an initial legal entry which becomes unlawful at the time that the actor's right, privilege or license to remain is extinguished”); see also State v. Brooks, 88 Conn. App. 204, 868 A.2d 778, 782 n.2 (2005) (reasoning that even if entry had been "with implicit consent, ... ‘vicious assault’ ... was clearly not within the scope of that consent,” and therefore the defendant had remained unlawfully).
. State v. Mahoe, 972 P.2d 287, 293 (Haw. 1998) ("A perpetrator ‘remains unlawfully’ for the purposes of a burglary prosecution only in situations in which the individual makes an initial lawful entry, that subsequently becomes unlawful.”); id. at 291 ("It would be an , unwarranted extension of Hawaii’s modern burglary statute to expand the offense of burglary to include situations in which the criminal intent develops after an unlawful entry or remaining has occurred.”); id. at 289-90 (appearing to require jury unanimity as to the conduct (entering or remaining), that underlies the burglary conviction).
. See People v. Gaines, 74 N.Y.2d 358, 547 N.Y.S.2d 620, 546 N.E.2d 913, 915-16 (1989) (concluding that” in order to be guilty of burglary for unlawful remaining, a defendant must have entered legally, but remain for the purpose of committing a crime after authorization to be on the premises terminates, explaining; “[b]y the words 'remains unlawfully’ the Legislature sought to broaden the definition of criminal trespass, not to eliminate the requirement that the act constituting criminal trespass be accompanied by contemporaneous intent to commit a crime.... In either [unlawful entry or unlawful remaining], 'contemporaneous intent is required.”).
. See State v. White, 341 Or. 624, 147 P.3d 313, 321 (2006) (“[T]he legislature included the ‘remains unlawfully’ wording in the burglary statute solely to clarify that burglary could occur by remaining unlawfully after an initial lawful entry. It did not intend to provide that a defendant who commits burglary by entering a building unlawfully commits an additional, separate violation of the burglary statute by remaining in the dwelling thereafter.”); In re J.N.S., 258 Or.App. 310, 308 P.3d 1112, 1117 (2013) ("[W]e hold that second-degree burglary may be committed in two alternative ways: (1) entering a building unlawfully with the intent to commit a crime therein; or (2) entering a building lawfully,
. See Holt v. State, 2011 Ark. 391, 384 S.W.3d 498, 505 (2011) (observing that even if the defendant had been invited into the dwelling, "he certainly was not privileged to remain there once he began telling [the victim] 'I told you I could get in anytime I 1 wanted to’ and 'if I can't have you, no one can’ and stabbing her”); State v. Brooks, 88 Conn.App. 204, 868 A.2d 778, 782 n.2 (2005) (reasoning that even if entry had been with implicit consent, "vicious assault ... was clearly not within the scope of that consent" and “[t]hus, the defendant unlawfully remained within the meaning of the statute”).
. See id.
. See ante atp, 217.
. See ante atp. 218.
, See ante at p. 216.
, See State v. Belcher, 161 Ariz. 133, 776 P,2d 811, 812 (Ariz. Ct. App. 1989) (upholding a- burglary conviction when jeans were stolen from a store'during business hours,' reasoning “[t]he requisite' intent to commit burglary may be formed after a person enters a store in all innocence”).
. See Clark v. Commonwealth, 22 Va.App. 673, 472 S.E.2d 663, 663 (Va. 1996), on reh’g, 24 Va.App, 253, 481 S.E.2d 495 (Va. 1997) (affirming burglary conviction when defendant entered store at night while it was open for business and committed theft while what appeared to be the butt of a gun was showing from his pocket; the court reasoned “[w]e hold that under Code § 18,2-90, a person who enters a store intending to commit robbery therein, enters the store unlawfully,”); id. at 677 ("We reiterate our holding in Johns that ‘[i]t would be an impeachment of the common sense of mankind to say that ... a thief who enters the store with intent to steal does so with the owner’s consent and upon
. See State v. Manthie, 197 Mont. 56, 641 P.2d 454, 456 (1982) (holding that evidénce was sufficient to support a finding of either unlawful entry or unlawful remaining in, but it is not clear what jury was instructed regarding timing of intent to commit another crime on the premises).
. United States v. Herrera-Montes, 490 F.3d 390 (5th Cir. 2007).
. See United States v. Pledge, 821 F.3d 1035, 1037 (8th Cir. 2016): United States v. Priddy, 808 F.3d 676, 684 (6th Cir. 2015); United States v. Eason, 643 F.3d 622, 624 (8th Cir. 2011); United States v. Nance, 481 F.3d 882, 887-88 (6th Cir. 2007); United States v. Anderson, 923 F.2d 450, 454 (6th Cir. 1991).
. United States v. Bonilla, 687 F.3d 188, 190, 193 (4th Cir. 2012).
. Id. at 192 (internal quotation marks omitted) (quoting Tex. Penal Code Ann. § 30.02 (West 2011)).
. Id. at 192-93.
. Id. at 193.
. Id.
. Id.
. United States v. Herrera-Montes, 490 F.3d 390, 392 (5th Cir. 2007).
. Bonilla, 687 F.3d at 193.
. 544 F.3d 584 (5th Cir. 2008) (per curiam).
. Bonilla, 687 F.3d at 194.
. Tenn. Code Ann. § 39-14~402(a)(3).
. See United States v. Priddy, 808 F.3d 676, 684 (6th Cir. 2015); see also United States v. Nance, 481 F.3d 882, 887-88 (6th Cir. 2007) (observing in a case under the ACCA that “the weight of authority indicates that Tennessee’s aggravated burglary statute is generic” and holding that because an aggravated burglary under Tennessee law occurs when an individual enters a habitation without effective, consent of the property owner and intends to commit a felony, it is generic burglary); United States v. Anderson, 923 F.2d 450, 454 (6th Cir. 1991) (holding in a case under the ACCA that an enhanced sentence was proper because "Anderson was convicted of violating Tennessee’s burglary statute,” which, as the court noted, "contains all of the[ ] elements” outlined in Taylor).
. Priddy, 808 F.3d at. 684 (quoting Tenn. Code Ann. § 3.9-14-402(a)(3) (1990)).
. See United States v. Herrera-Montes, 490 F.3d 390, 391 (5th Cir. 2007)1
. See Priddy, 808 F.3d at 684.
. See United States v. Herrera-Montes, 490 F.3d 390, 392 n.2 (5th Cir. 2007) (observing that "[t]he plain text of § 39-14-402(a)(3) does not require such intent, as a Tennessee court has recognized”). See State v. Wesemann, 1995 WL 605442, at *2 (Tenn. Crim. App. Oct. 16, 1995) (hplding that § 39-14-402(a)(3) "requires only that a felony be committed or attempted once the perpetrator enters the building. Criminal intent does not have to occur either prior to or simultaneous with the entry.”) (citations omitted).
. Compare United States v. McArthur, 836 F.3d 931, 943-44 (8th Cir. 2016), with United States v. Pledge, 821 F.3d 1035, 1037 (8th Cir. 2016), and United States v. Bason, 643 F.3d 622, 624 (8th Cir. 2011).
. See McArthur, 836 F.3d at 931, 943-44.
. Id. at 944 (citing Minn. Stat. § 609.582, subdiv. 3).
. Id. at 942 (quoting § 609.582, subdiv. 3).
. Id. (citing § 609.581, subdiv. 4).
. Id. at 943.
. Id. at 944.
. Id.
. Id.
. 821 F.3d 1035, 1037 (8th Cir. 2016).
. 643 F.3d 622, 623 (8th Cir. 2011).
. Pledge, 821 F.3d at 1037 (citing United States v. Priddy, 808 F.3d 676, 684 (6th Cir. 2015)).
. Tenn. Code Ann. § 39-14-403 (2014).
. Id. § 39—14—402(a)(3).
. Eason, 643 F.3d at 624.
. Pledge, 821 F.3d at 1037 (examining Tenn. Code Ann. § 39-14-403, which refers to § 39-14-402 for elements); Eason, 643 F.3d at 624 (examining Tenn. Code Ann. § 39-14-402); United States v. Herrera-Montes, 490 F.3d 390, 391 (5th Cir. 2007) (examining Tenn. Code Ann. § 39-14-403, which refers to § 39-14-402 for elements).
. United States v. Reina-Rodriguez, 468 F.3d 1147, 1155 (9th Cir. 2006), overruled on other grounds by United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc) (citing Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct 2143, 109 L.Ed.2d 607 (1990)).
. Id.
. Id. (citing Utah Code Ann. § 76-6-202(1)-(2)).
. Id. at 1156 (quoting State v:Rudolph, 970 P.2d 1221, 1229 (Utah 1998)).
. Id. at 1157.
. 490 F.3d 390 (5th Cir. 2007).
. Herrera-Montes, 490 F.3d at 392.
. Id.
. United States v. Davis, 339 Fed.Appx. 359, 360 (5th Cir. 2009) (per curiam).
. Id.
. Id. at 361.
. Id.
. United States v. Herrera-Montes, 490 F.3d 390, 391 (5th Cir. 2007) (quoting Tenn. Code Ann. § 39-14-402(a)(3)).
. See id. at 392 n.l ("Of course, if the intent could be formed anytime, then every crime committed after an unlawful entry or remaining in would be burglary. Relatedly, one who lawfully enters a building does not 'unlawfully remain’ just because he later commits a crime, parlaying the crime into burglary because now intent and unlawful remaining coincide—a shoplifter, for instance, who enters lawfully but intending to steal does not ‘unlawfully remain’ when he commits the theft.”).
. See id.
. See ante at 217.
. See ante at 216.
. See United States v. Priddy, 808 F.3d 676, 684 (6th Cir. 2015).
. See ante at 216.
