1 Ortega also challenges the constitutionality of § 1326(b)’s treatment

of prior felony and aggravated felony convictions as sentencing factors. As

he properly concedes, this argument is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998), and he raises the argument only to

preserve it.

United States Court of Appeals

Fifth Circuit

FILED

June 25, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-40493

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HUMBERTO ORTEGA-GONZAGA,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

--------------------

Before HIGGINBOTHAM, DAVIS, and WIENER, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Defendant Humberto Ortega-Gonzalez pleaded guilty to

reentering the United States following deportation. The district

court imposed a 16-level increase in his sentence, concluding that

Ortega’s previous California conviction for burglary, CAL. PENAL CODE

§ 459, was a “crime of violence” under U.S.S.G. § 2L1.2. Ortega

challenges that conclusion,1 which we review de novo. See United

States v. Dominguez-Ochoa, 386 F.3d 639, 641 (5th Cir. 2004).

U.S.S.G. § 2L1.2 provides for a 16-level increase if the

defendant was deported following a “crime of violence.” The
No. 06-40493

-2-

2 Although the list of things one can enter to commit burglary under

CAL. PENAL CODE § 459 includes both things clearly “dwellings” and things

possibly other than “dwellings,” see United States v. Murillo-Lopez, 444 F.3d

337, 344 (5th Cir. 2006), the state indictment alleged that Ortega entered an

“inhabited dwelling house.” Under the modified categorical approach, we can

consider that indictment in determining under what statutory section Ortega

was convicted, see id. (examining the same California statute and form of

indictment at issue here in addressing defendant’s argument that he didn’t

enter a “dwelling”), hence it’s unsurprising that Ortega does not argue that

he did not enter a “dwelling.” He argues only that he didn’t enter unlawfully

or without privilege.

commentary to § 2L1.2 defines “crime of violence” as either an

enumerated felony, including “burglary of a dwelling,” or a felony

that “has as an element the use, attempted use, or threatened use

of physical force against the person of another.” As they did

below, the parties contest only whether Ortega’s prior conviction

was the enumerated felony of “burglary of a dwelling” under the

categorical approach. See Dominguez-Ochoa, 386 F.3d at 642-46. In

answering that question, we look to the “generic, contemporary”

meaning of burglary of a dwelling, employing a “common sense

approach.” See United States v. Santiesteban-Hernandez, 469 F.3d

376, 378-79 (5th Cir. 2006).

Here, Ortega was convicted under a statute criminalizing entry

into a building with the intent to commit larceny or any felony.2

CAL. PENAL CODE § 459. In United States v. Taylor, 495 U.S. 575

(1990), the Supreme Court construed the term “burglary” under the

firearms statute, 18 U.S.C. § 924(e), stating that “Congress meant

by ‘burglary’ the generic sense in which the term is now used in

the criminal codes of most States,” hence the term “must have some

uniform definition independent of the labels employed by the

various States’ criminal codes.” Id. at 592, 98. The Court
No. 06-40493

-3-

3 The Court in Taylor implicitly stated that tents were not included in

its definition of “building or other structure” in its definition of generic

burglary: 

A few States' burglary statutes, however, as has been noted above,

define burglary more broadly [than the just-stated generic

defintion], e.g., by eliminating the requirement that the entry be

unlawful, or by including places, such as automobiles and vending

machines, other than buildings. One of Missouri's second-degree

burglary statutes in effect at the times of petitioner Taylor's

convictions included breaking and entering “any booth or tent, or

any boat or vessel, or railroad car.” 

determined that “the 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 the intent to commit a crime.” Id. at 598. Ortega

argues that this definition of burglary controls and does not reach

his crime, which did not require that his entry be “unlawful or

unprivileged.”

Because we see no reason to create a separate, parallel

federal common-law definition for “burglary,” Taylor’s definition

of “burglary” controls when defining the “burglary” part of

“burglary of a dwelling” under the Guidelines. We recognize that,

in United States v. Murillo-Lopez, 444 F.3d 337, 344 (5th Cir.

2006), this court extended 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.”3

That makes sense, given that the court in Murillo-Lopez was called

to define the “of a dwelling” part of “burglary of a dwelling,” and

it’s reasonable to conclude that “burglary of a dwelling”

encompasses different structures than “burglary.” However, the
No. 06-40493

-4-

Court in Taylor did consider what the word “burglary” by itself

entails, and there it held that the common definition included

“unlawful or unprivileged entry into, or remaining in....” Indeed,

it held that statutes, like the one at issue, that do not require

an “unlawful or unprivileged entry into, or remaining in” are

broader than the common definition of “burglary.” This is

buttressed by the Model Penal Code, which requires than an entry be

unprivileged and unlicensed. MODEL PENAL CODE § 221.1. Given this,

it makes little sense to hold that the federal common law

definition of “burglary” requires “unlawful or unprivileged entry,

or remaining in” but the federal common law definition of

“burglary...” does not. As a result, we hold that Taylor's

definition of “burglary,” aside from the structures in which a

burglary can occur, controls the definition of “burglary of a

dwelling” under the Guidelines. This is true even though our goal

under the Guidelines is to ascertain the “generic, contemporary”

meaning of burglary of a dwelling, because the Court in Taylor has

implicitly given us that meaning. 

The Government urges that any entry with the intent to commit

a crime must be “unlawful or unprivileged,” hence the California

statute implicitly required such an entry here. But, as the Model

Penal Code and Taylor recognized, those elements are separate. For

example, a cable repairman may enter a house with intent to rape,

but because he enters lawfully and with privilege, there is no

“burglary.” Likewise, a shoplifter who lawfully enters a store
No. 06-40493

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4 See Herrera-Montes, ___ F.3d at ___. 

5 The court in Rodriguez-Rodgriguez enhanced the defendant’s sentence

anyways because, using the “modified categorical approach,” the defendant was

indicted with and plead guilty to “unlawfully” entering. This court, however,

uses the “modified categorical approach” only to determine of which subsection

of a statute a defendant was convicted, United States v. Calderon-Pena, 383

F.3d 254, 258 (5th Cir. 2004) (en banc), and CAL. PENAL CODE § 459 has no

subsection requiring “unlawful” entry. In any event, “unlawful” entry was not

part of Ortega’s indictment or conviction.

Also, in United States v. Reina-Rodriguez, 468 F.3d 1147, 1155-56 (9th

Cir. 2006), the Ninth Circuit held that a Utah statute covering “enter[ing] or

remain[ing] unlawfully in a building” proscribed “burglary,” even though

lawful entry was covered by the statute, apparently because Taylor covers

unlawfully remaining in. This seems to disregard the categorical approach

because a defendant could violate that statute in a non-“burglary” manner, by

lawful entry. See United States v. Bonat, 106 F.3d 1472, 1475 (9th Cir. 1997)

(holding that Arizona statute, which is in relevant part identical to the Utah

with the intent to steal may later commit theft, but not burglary.

This comports with our companion case, United States v. HerreraMontes, ___ F.3d ___ (5th Cir. 2007), in which the defendant

alleged that his prior conviction shows only that he entered

unlawfully, not with an intent to commit a crime - the reverse

situation. That is also not burglary. For example, teenagers may

unlawfully enter a house only to party, and only later decide to

commit a crime.4 Both results are consistent with our conclusion

that Texas’s statute outlawing “burglary of a habitation” outlaws

“burglary of a dwelling” under the Guidelines because that statute

requires both an unconsented-to entry and an intent to commit a

crime. See United States v. Garcia-Mendez, 420 F.3d 454, 457 (5th

Cir. 2005). And our result avoids a split with the Ninth Circuit,

which has held that CAL. PENAL CODE § 459 does not proscribe

“burglary of a dwelling” because it does not require proof that the

entry be “unlawful or unprivileged.” See United States v.

Rodriguez-Rodriguez, 393 F.3d 849, 852-53 (9th Cir. 2005).5
No. 06-40493

-6-

statute in allowing conviction for even lawful entry, was broader than Taylor

“burglary” because it covered “privileged” entry). Reina-Rodriguez

distinguished Rodriguez-Rodriguez because CAL. PENAL CODE § 459 covers only

entry, not remaining in. In any event, we hold that, whether the defendant

“enters” or “remains in,” the entry or remaining in must be “unlawful or

unprivileged.”

SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.