* 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. 07-51410

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

JACINTO MONTOYA–BELTRAN,

Defendant–Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:07-CR-443

Before KING, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Jacinto Montoya-Beltran (Montoya) appeals the sentence imposed

following his guilty–plea conviction for unlawful reentry in violation of 8 U.S.C.

§ 1326. For the following reasons, we vacate his sentence and remand this

matter for further proceedings.

Montoya argues that the district court erred by imposing a 16–level

enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on three 1963

convictions for burglary of a house. The district court concluded that the offense,

United States Court of Appeals

Fifth Circuit

F I L E D

August 21, 2008

Charles R. Fulbruge III

Clerk
No. 07-51410

2

burglary of a house, was the equivalent of the enumerated offense of burglary

of a dwelling under § 2L1.2(b)(1)(A)(ii). According to Montoya, at the time of his

conviction,the term “house” was broadly defined to include structures other than

those that meet the definition of “dwelling” as defined for purposes of the

enhancement.

In determining whether an offense constitutes an enumerated offense

under § 2L1.2, this court employs a “common sense” approach, looking to

whether the prior offense meets the generic, contemporary definition of the

enumerated offense, as it is understood in its ordinary, contemporary, and

common meaning. United States v. Castillo-Morales, 507 F.3d 873, 874-75 (5th

Cir. 2007), cert. denied, 128 S. Ct. 1106 (2008) (citations omitted). Under this

common–sense approach, burglary is the “unlawful or unprivileged entry into,

or remaining in, a building or other structure, with the intent to commit a

crime.” United States v. Ortega-Gonzaga, 490 F.3d 393, 394-95 (5th Cir. 2007),

cert. denied, 128 S. Ct. 410 (2007) (citation omitted). A dwelling for purposes of

§ 2L1.2 is defined as any structure, including a tent or vessel, used for human

habitation. Castillo-Morales, 507 F.3d at 875 (citation omitted).

Although the parties dispute whether Montoya was convicted under

former Article 1389 or Article 1390 of the Texas Penal Code, both statutes

criminalize entering a house with the intent to commit a felony or theft. The

determinative question in this case is whether the structure at issue was a

dwelling. Under Texas law at the time, a house was defined as any building or

structure erected for public or private use, whether the property of the United

States, Texas, an individual, or private or public corporation or association. See

Robles v. State, 664 S.W.2d 91, 95 n.2 (Tex. Crim. App. 1984) (Clinton, J.,

concurring) (citingTEX.PENALCODE ART. 1395 (Vernon 1953) (repealed)). Texas

courts have defined the term “house” to include structures such as a store,

church, barn, smokehouse, “and even a fruit stand.” Edwards v. Texas, 463

S.W.2d 733, 734-35 (Tex. Crim. App. 1971). It is plain from the foregoing that
No. 07-51410

3

the term “house” is broader than the term “dwelling.” The Government

nevertheless argues that the language of the indictments, as recited in the

presentence report, demonstrates that the structure at issue was a private

residence. Those indictments each state that Montoya entered a house “situate

and occupied” by a specific individual with the intent to take that person’s

property. However, the fact that the structure was occupied by a person does not

necessarily mean that the structure was a dwelling as that term is defined.

Plainly, a structure that is not a dwelling may nevertheless be occupied by a

person. See, e.g., Bennett v. Texas, 455 S.W.2d 239, 241-42 (Tex. Crim. App.

1970).

Given the foregoing, we conclude that Montoya’s prior convictions of

burglary of a house do not constitute the enumerated offense of burglary of a

dwelling under § 2L1.2. Accordingly, we VACATE the sentence and REMAND

this matter for further proceedings consistent with this opinion. We need not

reach any other arguments urged by the parties.