* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

May 24, 2007

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-40955

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

STAVROULA REES,

Defendant-Appellant.

Appeal from the United States District Court 

for the Southern District of Texas

(06-CR-130)

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Stavroula Rees, a citizen of Greece, challenges the district

court’s application of a 16-level sentencing enhancement, arguing

that her 2002 Ohio conviction for burglary was not a crime of

violence under the Sentencing Guidelines. We vacate the sentence

and remand for resentencing. 
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I. BACKGROUND AND STANDARD OF REVIEW

Stavroula Rees pleaded guilty to one count of illegal reentry

after deportation and having previously been convicted of an

aggravated felony. The presentence report (PSR) assigned Rees a

base offense level of eight. The PSR increased Rees’ base offense

level 16 levels under section 2L1.2(a) of the Guidelines because

her deportation occurred following her 2002 Ohio conviction for

burglary, a crime of violence. According to the PSR, Rees was also

convicted in Ohio of two counts of burglary in 2003. After a

three-level reduction for acceptance of responsibility, the PSR set

Rees’ total offense level at 21. That offense level, combined with

a criminal history category of IV, yielded a recommended sentencing

guidelines range of 57 to 71 months imprisonment. 

Rees objected to the PSR, challenging the 16-level

enhancement, and repeated her objection at sentencing. The

district court overruled Rees’ objection, finding that her prior

convictions constituted crimes of violence, and sentenced Rees to

57 months imprisonment and a two-year term of supervised release.

Rees timely appealed. 

We review the district court’s application of the Sentencing

Guidelines de novo, and its findings of fact for clear error.

United States v. Vargas-Duran, 356 F.3d 598, 602 (5th Cir. 2004)

(en banc); see also United States v. Villanueva, 408 F.3d 193, 202,

203 n.9 (5th Cir. 2005) (holding that, post-Booker, this Court
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continues to use same standards of review when considering district

court’s application of Guidelines). 

II. DISCUSSION

Rees argues that her prior Ohio burglary convictions do not

qualify as crimes of violence under the Guidelines. Section

2L1.2(b)(a)(A)(ii) of the Guidelines provides for a 16-level

increase to a defendant’s base offense level if she was previously

deported after being convicted of a crime of violence. The

Application Notes define a “crime of violence” as (1) any of the

specific enumerated offenses, which include “burglary of a

dwelling,” or (2) “any 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.” § 2L1.2, comment. 

“In determining whether a prior offense is equivalent to an

enumerated offense that is not defined in the Guidelines, like

‘burglary of a dwelling,’” we define “the enumerated offense

according to its ‘generic, contemporary meaning’” and rely “on a

uniform definition, regardless of the labels employed by the

various States’ criminal codes.” United States v. Murillo-Lopez,

444 F.3d 337, 339 (5th Cir. 2006). This Court uses a “common sense

approach” to determine whether a defendant’s prior conviction

qualifies as “an enumerated offense as that offense is understood

in its ordinary, contemporary, and common meaning.” Id. “[T]he

generic, contemporary meaning of burglary contains at least . . .
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an unlawful or unprivileged entry into, or remaining in, a building

or other structure, with intent to commit a crime.” Taylor v.

United States, 495 U.S. 575, 600-02 (1990). “[B]urglary of a

dwelling” also includes, at a minimum, tents or vessels used for

human habitation.” Murillo-Lopez, 444 F.3d at 345.

Rees was convicted of third-degree felony burglary of an

occupied structure under the Ohio burglary statute. The Ohio

statute’s definition of “occupied structure” includes structures

that are not dwellings, such as “any building, outbuilding, . . .

railroad car, truck, trailer, . . . or other structure” if “[a]t

the time, any person is present or likely to be present in it.”

OHIO REV. CODE § 2909.01(B)(7)(C). Therefore, as Rees contends, and

as the government concedes, her prior state court convictions for

burglary do not qualify as the enumerated offense of “burglary of

a dwelling.” See United States v. Mendoza-Sanchez, 456 F.3d 479,

482 (5th Cir. 2006)(finding that Arkansas statute defining burglary

as entering or remaining unlawfully in “an occupiable structure of

another person” included structures that were not dwellings,

precludes qualifying as enumerated offense). 

When determining whether an offense has as an element the use,

attempted use, or threatened use of physical force against the

person of another, this Court adopts the categorical approach and

“examines the elements of the offense, rather than the facts

underlying the conviction.” Mendoza-Sanchez, 456 F.3d at 482. The
5

Ohio statute under which Rees was convicted does not have as an

element the use, attempted use, or threatened use of physical force

against the person of another. Indeed, a burglary under the Ohio

statute can be committed against property, rather than a person.

See § 2911.12(A)(3). As with the enumerated offense definition,

the government concedes that Rees’ convictions do not meet this

alternative definition of a crime of violence. 

Rees also challenges the constitutionality of section

1326(b)’s treatment of prior felony and aggravated felony

convictions as sentencing factors rather than elements of the

offense that must be found by a jury in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000). As Rees concedes, this argument is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235

(1998), and was only raised here to preserve it for further review.

See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),

cert. denied, 126 S. Ct. 298 (2005)(“This court has repeatedly

rejected arguments like [this] one . . . and has held that

Alemendarez-Torres remains binding despite Apprendi.”).

For the foregoing reasons, we VACATE Rees’ sentence, and

REMAND for resentencing.