United States v. Francisco Bonilla

188 12(b)(6) underly- court’s dismiss- vacate district

nature circumstances for further proceedings. al and remand majority as- 22.3 The J.A. ing offense. offered Appellants have that serts support [their]

“only speculation they being are not considered

view” However, Maj. at 182-83. parole. op. changes, taken significant procedural

these has suggest the Board

together, strongly procedures

systematically eliminated America, UNITED STATES furnished it with informa- would have Plaintiff-Appellee, beyond nature and circumstances tion allega- offense. These underlying v. the rela- are sufficient surmount tions BONILLA, Francisco Defendant- 12(b)(6) tively surviving low burden Appellant. motion dismiss. 11-4765. No. It is true that on rare occasions Appeals, Court of United States other gave Board a reason than nature Fourth Circuit. deny- and circumstances of But for ing Appellants parole. some May Argued: 2012. relied on Appellant, each the Board has July Decided: nature of the of- and circumstances factor, fense, and no other on at least one Thus, assuming there is a con-

occasion. fails to violation when the Board

stitutional reason, supra Part any

consider other see

II, Appellant each has suffered a constitu- injury multiple

tional occasions.

III. fairness the touch

“Fundamental [is] process.” Gagnon Scarpel of due

stone

li (1973). view, my funda

L.Ed.2d 656 re parole

mental fairness in the context con at a minimum the Board

quires beyond

sider at least one factor the nature offense. facts in underlying

Appellants’ complaint plausible make out a comply has

claim the Board failed such, requirement. As would J.A. Edward example, been de- words to effect. 30-31. 3. For Sharon Burnette has times, times, parole nied the sole reason parole all Conquest denied has been given na- on each occasion was the “serious J.A. for the same reason. ture and of the crime” or circumstances OPINION DIAZ, Judge: Circuit After pleaded guilty he illegal reen try, Francisco Bonilla received an en hanced on his sentence based Texas conviction for aof habitation. Bonilla that the district court erred applying the enhancement because his state conviction under Texas Penal Code section provides that —which [burglary] “[a] commits without the effective consent of the person ... enters habitation and commits or attempts to commit a felo ny, or an satisfy assault”—does not the definition of generic burglary under States, v. United 495 U.S. (1990). 109 L.Ed.2d 607 We disagree and judgment affirm the district court.

I. pleaded guilty Bonilla one-count charging indictment him knowingly entering United States without Patel, Paresh ARGUED: S. Office consent the Attorney General of the Defender, Greenbelt, the Federal Public having previously States after been Maryland, Appellant. Benjamin for M. excluded, removed, deported, or in viola- Block, Office of the United States Attor- tion of 8 U.S.C. presentence Baltimore, ney, Maryland, for Appellee. (“PSR”) report noted that Bonilla’s base Wyda, ON BRIEF: James Federal Public eight offense level of be should increased Defender, Baltimore, Maryland, Appel- by levels, “[s]ince sixteen [Bonilla] ha[d] Rosenstein, lant. Rod J. United States previously a crime of Baltimore, Attorney, Maryland, Appel- violence,” pursuant Sentencing U.S. lee. 2L1.2(b)(l)(A). Guidelines Manual J.A. triggering The offense the enhance- TRAXLER, Judge, Before Chief 8,May ment was Bonilla’s 1992 conviction DIAZ, Judges. GREGORY and Circuit Texas state court for of a habitation.1 by published opinion. Judge Affirmed majority opinion, objected DIAZ wrote the in which Bonilla en- sentencing hancement, Judge joined. Judge contending GREGORY Chief that his Texas dissenting opinion. TRAXLER did qualify wrote not crime of vi- judgment 1. As detailed in the from the Texas fense. conviction, pleaded guilty Bonilla to this of- ele- review de novo. United States Jen satisfy it did we

olence because (4th Cir.2011). kins, ments of argued Sentencing Guidelines Manual Specifically, Under Taylor. requisite 2L1.2(b)(1)(A), § not have “the convicted of he did a defendant because time” a crime” “at the reentry subject is to a illegal intent to Guidelines dwelling, he entered the if illegally he to his removal or prior enhancement 65. generic burglary. Id. deportation did not he had been convicted of a Application “crime of violence.” note ar- Bonilla’s rejected court The district l(B)(iii) §to 2L1.2 defines a “crime of found, Bonilla, court was gument. the violence” as one of several enumerated 30.02(a)(3) of the under section offenses, “burglary of a including dwell Code, “[a] provides which Texas as an ing,” or an offense “that has element the [burglary] without person commits use, use, attempted or the threatened use owner, person of the effective consent the physical against force of a or habitation and ... enters another.” a or commits Looking an assault.” or specified document—which charging A. “knowingly intentionally en- Bonilla and Taylor, sought the Supreme Court the effective habitation without tered] provide [of “some uniform definition bur at- of ... and therein consent theft,” glary] independent employed of the labels tempted to commit and committed by the various criminal States’ codes.” court noted that “theft J.A. 36—the 592,110 intent,” Specifical 495 U.S. at id. attempted require theft would ly, meaning the Court considered the that the intent “has to be formed “burglary” under Armed Career leaving the habi- Crim point some before 924(e). tation, (“ACCA”), § is inal Act 18 U.S.C. charge because within Thus, habitation,” court con- provides sentencing id. 80. The ACCA enhance posses that Bonilla’s conviction met cluded ment for conviction for § elements of under a firearm 922(g) sion of under 18 U.S.C. qualified as a crime of violence under previous if the defendant three “has con 2L1.2(b)(l)(a). Applying the sixteen-lev- victions ... for a violent seri enhancement, cal- sentencing 924(e)(1). el the court drug ous offense.” 18 U.S.C. advisory range turn, Guidelines felony,” culated “any A “violent includes months, thirty-seven forty-six and sen- punishable by imprisonment crime for a im- thirty-seven tenced Bonilla months’ exceeding year ... term one ... is prisonment.2 timely appealed. arson, extortion, burglary, involves use explosives, involves otherwise con

II. presents potential duct that a serious risk qualifies physical to another.” injury Whether Id. 924(e)(2)(B)(ii) added).3 legal question as a “crime of violence” is a ACCA, analysis rejected apply court ar- we 2. The district also its "crime violence” well—with the gument for a downward variance based on definition as addi circumstances, requirement burglary qualifying personal history tional that a but his as a "crime of violence” must involve dwell challenged appeal. this decision is Herrera-Montes, ing. See United States (5th Cir.2007) ("Taylor's Although Taylor whether a con- defini considered felony” 'burglary,' qualified as a under tion of ... controls viction "violent ing occupied, for a uniform definition Taylor’s search crime occurs at “burglary” Congress’s from night.” stemmed Id. of the same 1986 from the deletion Finding it “implausible” Congress In the Armed Career Criminal ACCA. meaning would have left of “burglary” “burglary” defined as Act 924(e) under to the variances of the “any felony consisting entering or re- codes, states’ criminal id. at within a maining surreptitiously 2143, the Court concluded that “burglary” property that is of another “must have some uniform definition” sepa- constituting engage conduct Federal rate from idiosyncrasies of the state State offense.” 495 U.S. at codes, 592, id. at 110 S.Ct. 2143. In its (internal quotations 110 S.Ct. 2143 omit- search for uniformity, rejected Court a ted). explanation, Congress in Without definition of tied to definition, the common excised this while retaining law, noting that “contemporary as a offense under- predicate under the standing” of burglary ACCA. was far removed from its counterpart. common law Id. at hole, legislative Faced with this 593, is, 110 S.Ct. That although in that Congress noted Court had “ ‘[bjurglary was defined the common (as “singled opposed out to other law to be the breaking entering frequently property committed crimes dwelling house of theft) nighttime another larceny as and auto for inclu- such felony’,” intent to commit a ... id. at predicate as a offense because of sion 3, (citation 580 n. persons.” omitted), harm to potential inherent for its 588, 110 S.Ct. 2143. As the Court most long “expanded Id. states had since this explained, fact that offender en- “[t]he definition to include without a a ters crime often ‘breaking,’ other than dwellings, structures possibility creates the of violent confron- daytime, offenses committed in between and an tation the offender occu- with intent to a crime other than a caretaker, other pant, or some who etc.,” 593, id. at 110 S.Ct. 2143. Id. investigate.” comes to “And the of- Next, rejected definition possibility,” fender’s own awareness this that to engage “intent conduct added, “may the Court mean that he is constituting a or State Federal offense to if prepared necessary use violence to that has as an ... conduct element that carry plans escape.” out his Id. presents physical injury serious risk Further, “Congress apparently because to another.” Id. at 110 S.Ct. 2143 thought that all burglaries enough serious (internal omitted). quotations The Court punishable by imprisonment be for Congress determined that if intended to year potential more than a ... shared this burglaries, reach this “subclass” likely violence ... were for to be inclusion criminals,” “burglary” by career Congress committed 924(e)(2)(B)(ii) superfluous, was as the not “limit predicate did offense to some separately burglaries any included special might subclass of that “ that especially presents such as ‘involves dangerous, be those conduct armed, potential physical injury where offender is the build- serious risk of 'burglary dwelling 'burglary dwelling' under the to construe of a Guide as the Wenner, lines.''); burglary, 351 F.3d States definition of with the nar- (9th Cir.2003) logical rowing qualification C‘[T]he most occur reading dwelling''). and sensible the Guidelines ... in a has 2143 “where definition 110 S.Ct. Id. another.”’ 924(e)(2)(B)(ii)). with minor variations terminol- adopted, U.S.C. (quoting 18 find only the trial court need ogy, then explanation specifi- rational A more corresponds in sub- that the state statute including burglary separately cally and meaning of burgla- stance Court, offense, said the a predicate (emphasis Id. at 110 S.Ct. 2143 ry.” gener- thought certain “Congress added). Thus, held that “an the Court namely property al categories crimes— ‘burglary’ purposes offense constitutes extortion, arson, and the use of burglary, 924(e) if ... sentence enhancement a risk of often presented explosives—so substantially statutory corre- its com- so often were injury persons, Id. ‘generic’ burglary.” sponds criminals, they by career mitted added). 2143 the statu- though even included” should be “nec- do not against backdrop of such offenses that we con- tory elements It is force threat of essarily use or appeal. involve sider Moreover, Id. the lack against a person.” (2) (ii) 924(e) (B) language in qualifying B. Congress concerned that suggested 30.02(a) Texas Penal Code section but aggravated burglaries, only “not [with] as provides follows: involving burglaries an run-of-the-mill also person A commits an offense without offender, building, an unoccupied unarmed of the the effective consent Id. or threat of force.” and no use person: sum, to limit the In the Court declined (or (1) habitation, a a building enters or subclass of “burglary” special term “a any portion building) open of a not then that would have either those burglaries, public, with intent to commit a law, or burglaries common those theft, assault; felony, or an or dangerous conduct.” especially that involve (2) concealed, remains with intent Rather,

Id. 110 S.Ct. 2143. theft, assault, felony, a or an in a Congress that intended Court determined habitation; building or or match in “the sense” the offense to (3) enters a or habitation and in the “the term now used way felony, commits or And, of most Id. criminal codes States.” an assault. for- “[although it that the exact concluded generic, vary, contemporary mulations violating Bonilla was convicted of section least meaning contains at (a)(3) which, statute, of the Bonilla con- elements: an following cedes, Taylor includes all of the ele- into, in, a privileged entry, of a building ments—unlawful structure, building or other structure, requisite other and the intent added). (emphasis commit a crime.” Id. predicate or other crime.4 notes, however, agree, and we stated that if the defendant Bonilla (a)(3) require in a state does not was convicted section thereby supporting approach, “burglary dwelling/ categorical Under the modified States, sentencing Shepard enhance generally 544 the "crime violence” see v. United ment, Sentencing is satisfied. See U.S. U.S. 161 L.Ed.2d confirm, court, l(B)(iii). (2005), § 2L1.2 cmt. n. we as district Guidelines Manual did the Thus, challenge finding does not this that Bonilla entered habitation. Bonilla requirement appeal. that Bonilla was entry. According to quently].” example, intent exist at Bonil- Id. 13-14. For “re- la, quirk timing maining as to the element is in” cases could be under that, however, Taylor. (a)(3), fatal under With “either section because state agree. we cannot prove cannot when the defendant formed intent a subsequent felony to commit adopting a “bur- proof or because there is insufficient glary,” repeatedly Taylor emphasized the defendant ‘concealed’himself.” Id. 14. precise up not lining elements is required, but rather that “the exact formu- (a)(3) In arguing that section does not vary.” lations satisfy Taylor require because it does added). (emphasis offering And entry, intent at the moment of Bonilla guidance apply to courts as to how example person offers the of a homeless definition, added that “where unlawfully only who enters a home to seek adopted, definition has been with warmth, inside, but while forms minor then terminology, variations property. to steal Framing subse- trial court need find the state quent theft opportunity,” “crime of corresponds in substance to the resulting rather than planning one from generic meaning of Id. at burglary.” plotting, that the homeless added). 110 S.Ct. 2143 presents man of a less risk than the (a)(3) requires

Because section an un- enters a plotting who home after to com- habitation, entry, lawful mit a crime. separate and the That argument is flawed. does theft, assault, it or we find that corre- distinguish between burglaries based sponds “in to Taylor’s substance” risk, their comparative level of but rath- burglary. definition of See id. As the (1) er is with a concerned defendant’s un- “[bjecause notes, government the Texas (2) presence, lawful in a building or struc- applies statute a defendant’s where (3) ture, with the intent commit to entry remaining or in a is unlaw- crime—all of required which are under ful, proof a completed attempted of (a)(3). section We hold that therefore felony necessarily requires proof that the Bonilla’s conviction under Texas defendant to formulated the intent commit 30.02(a)(3) substantially Code section cor- prior a crime to either his unlawful responds to the elements of bur- unlawfully while in the build- glary Taylor as outlined therefore and added). Br. ing.” Appellee’s 7-8 qualifies as a “crime of violence” sen- We agree government also tencing purposes. (a)(1) (2)

while sections and of the Texas cover, respectively, statute situations C. where it is clear that the intent “existed prior entry, held, to the unlawful as when a The Fifth such Circuit has and our dis tools,” caught defendant “a senting colleague urges, “lawfully where a defendant enterfs] a conviction under of the Texas store and until then himself af- Penal Code is not a un conceal[s] steal,” closing with intent to section it Taylor ter der definition because does (a)(3) gap statutory “fills a in the to scheme not contain an element of intent theft, felony, cases in which it is whether assault unclear at the moment of Constante, necessary entry.” intent existed at time of an United States v. Cir.2008) (5th curiam). unlawful (per was formed subse- F.3d not con- which Bonilla was convicted does although noted that court support, In by Taylor. (a)(3) tain intent element that a defendant requires section Bonilla’s I do not believe that enter therefore knowingly the build- intentionally or is a crime of violence prior to to com- have intend “he would not ing, 2L1.2, respectfully “[o]nly time” der U.S.S.G. at that ... mit from the affirmance of intent is relevant dissent specific of type this latter generic burgla- sentence. to at n. 3. ry.” Id. I. reading think this respect, we

With that a defendant given too rigid, A. (a)(3) necessarily section convicted under for a Sentencing provide The Guidelines to commit the crime developed the intent if the increase in the offense level building, if he did 16-level remaining in the while deported being after con- defendant was it the moment he entered. not have at that receives victed of a “crime of violence” is whether section question The critical points. (a)(3) history criminal U.S.S.G. “corresponds Texas 2L1.2(b)(l)(A)(ii). defines Guideline generic meaning bur- substance “burglary “crime of violence” include Taylor, 495 U.S. glary,” l(B)(iii), n. it does cmt. but guilty dwelling,” an offense id. pleaded 2143. Bonilla (1) “burglary.” required proof not define under Texas law (2) into a entry, Supreme consid- Court (3) habitation, the intent similarly undefined scope ered the We hold that or assault. prior to a conviction for reference satisfy Taylor's description these elements 924(e). Although in 18 contained U.S.C. notwithstanding that generic burglary, recognized has in- might not have formulated his meaning common law—“a well-defined the unlawful tent entering dwelling breaking and felony,” to night, commit a with III. 592, 2143, the Taylor, 495 110 S.Ct. reasons, we affirm the foregoing For contemporary observed judgment. district court’s far derstanding “burglary” had evolved AFFIRMED that “[t]he from its common-law roots and in the com- arcane distinctions embedded TRAXLER, Judge, dissenting: Chief to definition have little relevance mon-law concerns,” States, modern law enforcement id. v. United 495 U.S. Under 593, 575, 2143, thus re- 109 L.Ed.2d 607 110 S.Ct. The Court S.Ct. (1990), jected “burglary” as argument conviction 924(e) burgla- § pur used in was common-law sentence-enhancement offense, ry, if the poses underlying “regard see id. label, referred its or concluded the statute ha[s]

less of exact definition instead in generic to in “the sense which unprivi the basic elements of unlawful or in into, remaining in, used the criminal codes leged entry or a build term is now States,” structure, to id. at ing or with intent commit a most vary, the the exact formulations “Although crime.” Id. at 110 S.Ct. 2143. While burgla- contemporary meaning generic, there are under Texas law that offenses following elements: definition, ry at least meet the statute under contains into, unprivileged entry government For part, argues unlawful or its an 30.02(a)(3) in, structure, § or other prohibits substance Id. same conduct as burglary, intent to commit crime.” which is with Taylor requires. all that (“[A]n U.S. at 110 S.Ct. 2143 B. ‘burglary’ purposes constitutes of a The Texas statute under which Bonilla 924(e) § if sentence enhancement ... its provides that: was statutory substantially corre- A person commits offense without sponds ‘generic’ burglary....” to (empha- the effective consent of the added)). government The sis notes that person: defines because (1) habitation, a building enters a include involving offenses unlawful “re- (or any portion building) of a not then maining” premises, generic burgla- on the open public, with intent to commit ry necessarily encompasses offenses where theft, assault; a felony, or an the intent to commit a crime is formed (2) concealed, remains to while the defendant remained the build- theft, assault, felony, commit a or an in a ing. government that, thus contends habitation; building or assertion, contrary to Bonilla’s (3) require does that the intent building or enters a habitation and exist at moment And be- felony, commits proof cause the completed or attempted theft, or an assault. 30.02(a)(3) by § crime required necessarily 30.02(a). § Ann. Tex. Penal Code As is shows that the defendant formulated the statute, apparent from face of the requisite intent either before entering the “with building or while he remained the build- assault” is an element of the offenses set ing, government asserts that the crime 30.02(a)(1) 30.02(a)(2). out out in substantially set corre- Bonilla, however, with and sponds generic burglary. pleaded guilty violation 30.02(a)(3), replaces which the with-in- II. requirement tent element with the that the defendant committed or to com- attempted addressing Before par the merits specified mit the crimes. arguments, ties’ think it be helpful will appeal Taylor1 clarify s the nature of the before issue requires intent-to-commit-a-crime element burglary court. Generic as defined in contemporaneous Taylor intent —intent that ac- consisting is “a crime three nec 1) companies essary or coincides with the commis- elements: an or unpriv unlawful 2) ileged in; sion the other elements. Because a entry building 30.02(a)(3) 3) structure; only requires that the defen- or other with intent to com unlawfully Bowden, dant enter and a thereafter com- mit crime.” United v. States (4th Cir.1992). or attempt felony, mit to commit a 975 F.2d necessary intent for conviction under alternate of the first element phrasing 30.02(a)(3) not need have existed the means that can be generic burglary com entry. ways: moment of Bonilla thus in by unlawfully contends mitted two enter 30.02(a)(3) ing that his conviction under is a intent structure with crime, a by unlawfully not as commit a remain by Taylor. ing defined structure with intent to charged with he was Because maining.1 the crime is But whether a crime. commit entry under a of unlawful by and convicted entering or unlawfully by committed unlawful require not that does commit statute intent to remaining, the unlawfully an intent to entry accompanied See to be element. separate remains a crime crime, that he was argues Bonilla Ortega-Gonzaga, States (under Cir.2007) burglary. (5th Tay generic not convicted burglary, unlaw generic lor’s question to me that the seems to It thus are a crime to commit and intent entry ful not, govern- as the here is answered be elements). separate re- contends, the intent whether ment argu- above, government’s As noted always must burglary generic quired for inclu- Taylor’s primarily ment focuses the moment case exist at every and in defi- “remaining-in” offenses sion of of unlawful-re- inclusion entry; Taylor's This focus on burglary. nition of it clear the answer makes maining offenses however, ob- language, remaining-in Instead, “No.” question of- point remaining-in critical scures — under a a conviction is whether question included in the statute not fenses are with- unlawful entries proscribing convicted. Section Bonilla was der which contemporaneous requiring out entries, unlawful prohibits burgla- to a conviction amounts remaining. Tex. Code unlawful view, makes it clear my ry. 30.02(a)(3) (“A person commits §Ann. likewise is question answer to consent the effective offense without “No.” ... enters build- and commits or habitation ing A. theft, or an assault.” added)). And accordance (emphasis no need had Although the statute, Bonilla was the terms with is no there doubt point, elaborate on unlaw- guilty to pleaded charged with to constitute that for an offense neither only; he was ful law, the intent at common remaining. unlawfully nor convicted the time of the existed at crime must have Contemporaneous breaking entering. considered argument is When at com- intent was the essence under which he was light of the statute law, that distin- convicted, it was the element mon it is clear actually indicted trespass. See the offense from guished contend that Bonilla does not LaFave, Substantive Criminal Wayne R. always requires that the (2d. ed.) (“To 21.1(e) have commit- Law the moment of a crime exist at law, at common ted the offense Instead, intended to commit must have contem- one by Taylor must be requirements.” fulfilling the other act, while whether prohibited poraneous Blackstone, added));2 4 William unlawful re- that act is extensively Taylor on a fact, relied 2. The Court acknowledges that he had if 1. In by Professor treatise coauthored criminal-law charged, and convicted under subsection been burglary’s evolu statute, discussion of (a)(2) LaFave and its prohibits which of the Texas to modern roots its from its common-law to com- tion ‘'remain[ing] with intent concealed” Taylor, at 580 n. crime, statutory 495 U.S. form. See Ann. Code see Tex. Penal mit 3, & A. (quoting W. LaFave 30.02(a)(2), ge- S.Ct. 2143 110 would be for the conviction Scott, 22; at 464 Law 8.13 Criminal Appellant Substantive burglary. See Brief of neric 2143; 4, (1986)); id. at S.Ct. at 588 n. 110 id. Reply at 3. Brief

197 England guilty on the Latos if burglary Commentaries he enters a (1769) (“As intent; clear, structure, to the it is occupied separately secured thereof, entry occupied portion must be with a feloni- or breaking purpose with intent, therein, only trespass.” it is to commit a crime ous otherwise unless the added)). (second emphasis premises are at the open public time or the actor is or privileged licensed view, generic burglary as defined my added)). (emphasis enter.” by require- the common-law Taylor retains intent. This contemporaneous ment of Court fashioned defini its by plain is the lan- compelled burglary conclusion tion of reflect the mod ern, requirement the guage prevailing intent itself— view of the crime. See 598, can Taylor, “with intent crime” 110 S.Ct. 2143. requiring be the understood as There is little doubt defendant’s the other accompany elements. See Web- intent to commit a crime remains central Unabridged See, Encyclopedic ster’s Dictio- to the modern e.g., offense. State v. Chatelain, nary English Language 278, 41, at 2183 347 Or. 220 P.3d (2001) (2009) (“Since (defining “accompanied Blackstone, “with” as the time of State, by; accompanying”); Harris v. defendant’s intent to crime cf. 652, Tex.App. 1886 WL 4656 at *3 has been the characteristic distin (“[T]o (Tex.Ct.App.1886) burgla- guishing constitute burglary from trespass. mere ry ..., And, party law, must enter the house under current Oregon to commit theft. This intent is required crime to commit any accompany prompt—the entering.” degree must of burglary; it continues to be the — added)). The primary Court’s with-in- distinguishing element (citation phrasing tent-to-commit of the element trespass.” from criminal omit ted)); common typical phrasing People 336, mirrors v. Maggette, 195 Ill.2d law, (2001) do not believe could 254 Ill.Dec. 747 N.E.2d (“The significance gist have unaware of the of the offense is the defendant’s its language. chosen felonious intent with which he or she en dwelling____”); State, ters the Keady v. Moreover, Court noted that 687 S.W.2d 760 (Tex.Crim.App.1985) its burglary “ap- formulation of (“The gist conduct that is the of- proximates adopted by drafters of burglary entry fense is the Penal Model Code.” 495 U.S. intent, requisite physical not the act of 8,110 at 598 n. 2143. And as S.Ct. defined entering.”). by Code, Penal Model re- quires contemporaneous intent. See Mod- remaining” “Unlawful was not a basis (1980) (“A el Code 221.1 law,3 is for a burglary conviction at common 2143; entry id. at elude unlawful or unlawful id., premises, permits in the which convictions cases where the initial Burglary at common law a “break- ("This may have been lawful. id. com- ing" and an Most now states have statutory expansion mon definition of breaking requirement, eliminated the great makes A sense. lawful unlawful, qualifiers placed (e.g., most have does not foreclose kind intrusion bur- unprivileged) type entry required. on the reach, glary designed isas illustrated LaFave, See 3 Substantive Criminal Law the case of a bank customer who in the hides 21.1(b). many While limit states still bur- bank until it closes and then takes the bank's entries, glary to unlawful it is now "far more money.”). burglary common” for states to define in- to 198 committing to sent of the owner and theft nothing Taylor’s analysis find

but I remaining-in dwelling, the inclusion of Penal the in violation Texas suggest al fundamentally 30.02(a)(3). eliminated offenses § Intent to commit a Code require contemporaneous-intent the tered necessary crime is element me Instead, it to that the seems ment. 599, see 495 at burglary, 110 “ remaining-in simply offenses inclusion of felony but to commit a ‘intent charged a defendant is with that if means not an element the theft’ is remaining, intent must exist the unlawful 30.02(a)(3),” § proscribed by DeVaughn v. remaining. unlawful See the time of the (Tex.Crim. State, n. 749 S.W.2d 65 4 Herrera-Montes, 490 States (en banc). It thus seems clear App.1988) Cir.2007) (5th (“Taylor re to me Bonilla was not convicted of to intend the defendant quires that by Taylor. Unit defined See entry time of unlawful a crime at Constante, ed States v. 544 F.3d in, remaining as do Model Penal Code (5th Cir.2008) curiam) (“[A] (per 197- Dictionary § Black’s Law 221.1 and § under of the Texas (6th ed.1990).”); LaFave, also 3 see generic burglary Penal Code is not a un 21.1(b) (un Criminal Law Substantive der the it definition because does prohibiting unlawful remain der statute not contain element of intent to commit intent to commit a crime ing, requisite “the moment assault only at the time the within exist need entry.”). within”); unlawfully remained defendant State, 856, 863 Hernandez v. 190 S.W.3d course, government, (“If charged is (Tex.App.2006) defendant 30.02(a)(3)’s attempted-or-eommitted- under with Code [Tex. substantially corresponds crime element to (a)(1) (a)(2), the State re 30.02] generic burglary’s intent element because to the defendant’s intent to quired prove can be committed un- or theft at the time the lawfully remaining, and “the fact of at- or remained concealed entered defendant tempted or theft completed ‘necessarily add building.” a habitation or implies’ that such intent was formed while ed)); State, Pushruk v. 780 P.2d unlawfully Defendant remained (Alaska (“[T]o Ct.App.1989) find premises.” Respondent Brief of at 13. guilty burglary, defendant state Taylor’s determination bur- must show the defendant had glary encompasses involving offenses at the commit an additional crime time his entry involving lawful offenses unlaw- premises un presence on the first became however, remaining, ful give does not lawful, ie., that he time first tres court license read unlawful unlawfully or remained passed, entered only prohibits into a premises.”) entry. charged Accordingly, Tay- believe that under entry, of unlawful act generic burglary, lor’s definition of a de- 30.02(a)(3). proscribed by The commis- fendant’s intent commit a crime must a crime might sion of after establish contemporaneously exist with the unlawful formed the defendant remaining. or the unlawful commit the he remained on crime while B. but it does establish that premises, contemporaneous intent was pleaded Bonilla was DeVaughn, guilty entering dwelling without con- unlawful (§ 30.02(a)(3) “includes S.W.2d at 65 WEC CAROLINA who ENERGY SO

burglary the conduct of one enters LLC, but, LUTIONS Plaintiff- lacking without consent in- effective Appellant, any upon entry, tent crime his subsequently and com- forms (empha- mits or or theft” MILLER, Mike; Willie Emi a/k/a added; quotation sis internal marks omit- ly Kelley; Energy Arc In Services ted)). corporated, Defendants-Appellees. essence, government’s argument, No. 11-1201. is that conduct have sup could Appeals, United States Court of ported remaining-in a conviction under a Fourth Circuit. TayloPs categorical ap statute. Under however, proach, we must focus on the Argued: April underlying elements of con July Decided: viction, led not the conduct that conviction. 495 U.S. at is, That S.Ct. 2143. whether Bonilla is a convicted de

termination be made comparing “not

the defendant’s with the ge conduct offense, by comparing

neric but rather

elements of the crime of offense.” States v. Pe

terson, (4th Cir.2011) F.3d added). Bonilla was 30.02(a)(3), of violating proscribes

which unlawful entries but does

not require accompanied to be

by an intent to commit a crime. See De

Vaughn, 749 S.W.2d 65. The elements

§of thus do not substantially

correspond elements of bur Constante,

glary, see

Bonilla’s conviction have should not

used to enhance his sentence under 2L1.2(b)(l)(A)(ii).

U.S.S.G.

Accordingly, respectfully dissent from

the judgment affirming Bonilla’s sentence.

Case Details

Case Name: United States v. Francisco Bonilla

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jul 17, 2012

Citation: 687 F.3d 188

Docket Number: 11-4765

Court Abbreviation: 4th Cir.