Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-10177

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES M. DAVIS,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

No. 7:05-CR-4

Before DAVIS, SMITH, and DeMOSS, Circuit Judges

PER CURIAM:*

James Davis pleaded guilty of being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g) and was sentenced to the statutory minimum of

fifteen years’ imprisonment under the Armed Career Criminal Act (“ACCA”), 18

United States Court of Appeals

Fifth Circuit

F I L E D

March 31, 2009

Charles R. Fulbruge III

Clerk
No. 07-10177

2

U.S.C. § 924(e). The sentence was based in part on Davis’s Arizona convictions

of second-degree burglary in violation of ARIZ. REV. STAT. ANN. § 13-1507, which

the district court deemed “violent felonies” under § 924(e)(2)(B)(ii). Id. 

Davis appealed, and we issued two non-dispositive opinions. See United

States v. Davis, 530 F.3d 318, 319 (5th Cir. 2008) (per curiam); United States v.

Davis, 291 F. App’x 563 (5th Cir. 2008) (per curiam). As requested, we received

supplemental briefs.

Davis contends that his Arizona convictions were not for violent felonies

under § 924(e)(2)(B)(ii), because second-degree burglary under Arizona law does

not fit within the generic, contemporary meaning of burglary as defined in Taylor v. United States, 495 U.S. 575 (1990). Because Davis did not raise this issue

below, we review for plain error. See United States v. Dupre, 117 F.3d 810, 817

(5th Cir. 1997). Plain error review has four steps. Puckett v. United States, 2009

U.S. LEXIS 2330, at *11-*12 (U.S. Mar. 25, 2009). We “may reverse only if:

(1) there was error (2) that was clear and obvious and (3) that affected a defendant’s substantial rights.” Id. If these elements are present, we have the “discretion to correct the error if it seriously affect[s] the fairness, integrity, or public

reputation of judicial proceedings.” Id. (internal quotation marks and citations

omitted). If existing law is unsettled regarding an alleged error, the alleged error is not clear or obvious. United States v. Salinas, 480 F.3d 750, 756, 759 (5th

Cir. 2007). 

“[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.” Taylor, 495

U.S. at 599. Under Arizona law, “[a] person commits burglary in the second-degree by entering or remaining unlawfully in or on a residential structure with

the intent to commit any theft or any felony therein.” ARIZ. REV. STAT.

§ 13-1507(A). 
No. 07-10177

See United States v. Reina-Rodriguez, 468 F.3d 1147, 1155 (9th Cir. 2006) (noting that 1

Taylor requires only that the defendant form the intent to commit a crime while unlawfully

remaining on the premises), overruled on other grounds by United States v. Grisel, 488 F.3d

844, 851 n.5 (9th Cir.), cert. denied, 128 S. Ct. 425 (2007).

Id.

2

3

On its face, the Arizona statute is indistinguishable from the generic contemporary definition of burglary adopted in Taylor. Indeed, the Tenth Circuit

cited § 13-1507 and concluded that it is “uncontested that burglary of a dwelling

is a crime of violence” under the federal sentencing guidelines. United States v.

Cornelio-Pena, 435 F.3d 1279, 1282 (10th Cir. 2006). The definition of “violent

felony” under § 924(e)(2)(B) is identical to the definition of “crime of violence” as

used in the sentencing guidelines. United States v. Mohr, 554 F.3d 604, 609 (5th

Cir. 2009).

In United States v. Bonat, 106 F.3d 1472, 1475 (9th Cir. 1997), however,

the court observed that Arizona’s courts had broadened the definition of burglary

to allow for a conviction if the intent to commit a crime was formed after entry

into a residential structure or if entry was privileged. If it is assumed that the

Ninth Circuit’s assessment of Arizona jurisprudence on the formation of intent

is correct, that assessment nonetheless has no significance unless one first concludes that the definition of generic burglary requires that a defendant form the

intent to commit a crime before entering a structure. Taylor contains no explicit

requirement, and such a requirement would be inconsistent with the “remaining

in” aspect of Taylor’s definition. Since deciding Bonat, the Ninth Circuit has expressed doubt about a requirement of intent upon entry. “To hold [that intent 1

must be formed prior to entry] would render Taylor’s ‘remaining in’ language

surplusage.”2

We have suggested that generic burglary requires the defendant to have

formed an intent to commit a crime before entering the premises. See United

States v. Herrera-Montes, 490 F.3d 390, 392 & n.2 (5th Cir.), cert. denied, 128 
No. 07-10177

See United States v. Garcia-Lopez, 262 F. App’x 584, 585 (5th Cir. 2008) (holding that 3

it was not plain error to treat a violation of § 13-1507 as generic burglary under Taylor because the law was unsettled).

See United States v. Murillo-Lopez, 444 F.3d 337, 339-45 (5th Cir. 2006) (California

4

statute); United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005) (Texas); United

States v. Cordoba-Posos, 295 F. App’x 651, 655 (5th Cir. 2008) (Illinois).

4

S. Ct. 410 (2007). Herrera-Montes, however, did not concern “remaining in” a

structure, and we have not had occasion to reconcile the “remaining in” aspect

of Taylor with a requirement for intent at the time of entry. Bonat does not establish that it was a clear or obvious error for the district court to have treated

Arizona second-degree burglary as generic burglary under Taylor. 

3

Davis contends that the Arizona statute is broader than generic burglary,

because it allows a conviction based on burglary of a vehicle. Section 13-1507

proscribes “entering or remaining unlawfully in or on a residential structure.”

§ 13-1507(A). The definition of “residential structure” includes vehicles only if

they are “adapted for both human residence and lodging.” § 13-1501(11), (12).

Such statutes describe generic burglary where they apply to vehicles when used

as residences or habitations. Davis shows no clear or obvious error regarding 4

Arizona’s definition of “residential structure.”

The judgment is AFFIRMED.